Allen v. Allen
| Decision Date | 20 May 1982 |
| Docket Number | No. 8183,8183 |
| Citation | 645 P.2d 300,64 Haw. 553 |
| Parties | Linda Mary ALLEN, Plaintiff-Appellee, Cross-Appellant, v. Scott Ethan ALLEN, Defendant-Appellant, Cross-Appellee. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
HRS § 583-3 confers authority on the family court to act in an interstate child custody dispute if: (1) Hawaii is the child's home state when proceedings are commenced or it had been the home state within six months thereof but the child has been removed from the State; or (2) it is in the child's best interest for the court to assume jurisdiction because of a significant connection between the child and at least one of the parties and the State and because substantial evidence relating to the present or future care of the child is available in Hawaii; or (3) the child is physically present in the State and has been abandoned or an emergency situation with respect to his case is extant; or (4) no other state apparently has jurisdiction over the controversy or another state has deferred to Hawaii in the matter.
The jurisdictional test described in HRS § 583-3(a)(1)(B) serves to extend the jurisdiction of a former home state during the six month period while a child is acquiring a new home state by residence there. A former home state continues to possess jurisdiction though it was not accorded the status of a home state.
HRS § 583-3(a)(2) recognizes that two states may have concurrent jurisdiction over a custody dispute in some situations. But one court may oust the other of its jurisdiction if such ouster is in the best interest of the child.
A court can exercise jurisdiction pursuant to HRS § 583-3(a)(2) only if both the child and one of his parents has a significant connection with the state in which the court is situated and there is substantial evidence pertaining to the child's present or future care, protection, training and personal relationships available in the state.
Shackley F. Raffetto, Wailuku (Mukai, Ichiki, Raffetto & MacMillan, Wailuku, of counsel), and co-counsel Donald Friedman Newark, N. J. (Friedman, Carney & Wilson, Newark, N. J., of counsel), for defendant-appellant, cross-appellee.
Paul R. Mancini, Kahului (Case, Kay & Lynch, Kahului, of counsel), for plaintiff-appellee, cross-appellant.
Before RICHARDSON, C. J., LUM and NAKAMURA, JJ., and OGATA and MENOR, Retired Justices assigned by reason of vacancies.
The question in the case at bar is whether the Family Court of the Second Circuit erred in declining to exercise jurisdiction to determine a controversy centered on the custody of a child who had been brought to Hawaii from the family domicile in New Jersey six days before suit was filed. We granted certiorari to review the Intermediate Court of Appeals' decision, 634 P.2d 609, that the family court abused its discretion in doing so because the appellate court's application of the Uniform Child Custody Jurisdiction Act, HRS Chapter 583, appeared at odds with Griffith v. Griffith, 60 Haw. 567, 592 P.2d 826 (1979). From an examination of the record we conclude the family court's decision not to assume jurisdiction was proper, and reverse the appellate court.
The dispositive facts are simple and largely undisputed. Plaintiff-appellee, Cross-appellant Linda Mary Allen (Mrs. Allen) and Defendant-appellant, Cross-appellee Scott Ethan Allen (Mr. Allen) were married in New York on December 21, 1977. They established a domicile in New Jersey in July of 1978 when they moved into a house Mr. Allen had inherited from his father. Their only child, Christian Scott Allen (Christian), was born in New Jersey on August 6, 1979; he lived with his parents in the family home in Smoke Rise, New Jersey until the middle of September in 1980 when the couple separated. Mrs. Allen and Christian then lived for a short while with her parents who were also residents of New Jersey.
Mrs. Allen arrived in Hawaii with Christian on October 2, 1980; she commenced the proceedings now before us on October 8, 1980. Since she could satisfy neither the requirement of domicile or physical presence within the circuit for three months, as specified by HRS § 580-1 "in matters of annulment, divorce, and separation," nor the prerequisite of six months' residence in the State prescribed therein for divorce actions, she purported to invoke the court's equity powers in seeking a separate maintenance decree. She petitioned for a decree permitting her to live separate and apart from Mr. Allen and orders granting her custody of Christian, support for herself and the child, and attorney's fees and costs. She simultaneously sought orders awarding her custody of Christian and restraining Mr. Allen from removing the child from the circuit pending the determination of the case; the requested temporary relief was granted ex parte.
Mr. Allen commenced proceedings for a custody determination in New Jersey on October 29, 1980, seeking inter alia, orders restraining Mrs. Allen from prosecuting a custody action elsewhere and requiring her to return Christian to New Jersey. Relief as prayed for was granted by the New Jersey court on November 21, 1980. He then appeared in the Hawaii court through counsel for the specific purpose of contesting the court's authority to make a custody determination involving Christian.
The motion to dismiss Mrs. Allen's suit and for an order requiring the return of the child to New Jersey was decided by the family court on February 18, 1981. After considering "the arguments and the affidavits, records and files presented in support and opposition to said motion," the court dismissed the action for lack of jurisdiction and because "Hawaii is an inconvenient and inappropriate forum." It ordered Mrs. Allen to return the child to New Jersey within five days; it further enjoined the prosecution of a marital or custodial action by Mrs. Allen in any jurisdiction other than New Jersey. The order for the return of the child, however, was subsequently stayed pending an appeal to this court.
The appeal was assigned to the Intermediate Court of Appeals for hearing and disposition. The appellate court concluded there was a basis for the family court's exercise of jurisdiction in HRS § 583-3(a)(2), 1 which provides that a State court competent to decide child custody questions has jurisdiction to determine an interstate child custody dispute if it is in the best interest of the child. 2 In the appellate court's view, the family court thus erred in concluding it lacked jurisdiction and in also concluding Hawaii was an inconvenient and inappropriate forum without an "adversary" hearing.
The Uniform Child Custody Jurisdiction Act (the Act) has been adopted by both states 3 involved in the instant custody battle in substantially the form approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1968. 4 The move for consistency in determining jurisdiction in the relevant area was prompted by a "growing public concern over the fact that thousands of children are shifted from state to state and from one family to another every year while their parents or other persons battle over their custody in the courts of several states," Commissioners' Prefatory Note, Uniform Child Custody Jurisdiction Act (9 U.L.A.) at 111, and the Commissioners' perception that "(t)his unfortunate state of affairs has been aided and facilitated rather than discouraged by the law." Id. at 112. 5 Statutory law in the area of concern was lacking, and a "medley of discordant (judicial) decisions provide(d) neither a consistent set of rules nor an intelligible guide for those who ... (were compelled to) resort to institutional settlement of custody disputes." Ratner, Child Custody in a Federal System, 62 Mich.L.Rev. 795, 798-99 (1964). The unsettled situation and the absence of constructive guidelines were exemplified by Restatement provisions declaring that the state where the child is domiciled, the state where he is physically present, and the state where the defendant is legally present possessed concurrent authority to determine the child's custody. Restatement (Second) of Conflict of Laws § 79 (1969).
Since the Act broke new ground, the Commissioners set forth its purposes in detail. See Uniform Child Custody Jurisdiction Act (9 U.L.A.) § 1 and Commissioners' Note at 117. Some of these purposes were the avoidance of jurisdictional competition and conflict, cooperation among state courts, and the deterrence of abduction and other unilateral removals of children. The Commissioners' draft also provided that the Act should be read and applied with the stated objectives in mind. Id. The foregoing goals as well as the admonition to construe the law consistently therewith were expressly ratified by the State legislature. 6 Our task then is to ascertain whether the family court's decision not to exercise jurisdiction was correct under the provisions of HRS § 583-3, "construed to promote the general purposes stated" in HRS § 583-1.
Four possible bases for family court jurisdiction over an interstate child custody dispute are established by HRS § 583-3. The statute confers authority for the court to act if: (1) Hawaii is the child's home state when proceedings are commenced or it had been the home state within six months thereof but the child has been removed from the State; or (2) it is in the child's best interest for the court to assume jurisdiction because of a significant connection between the child and at least one of the parties and the State and because substantial evidence relating to the present or future care of the child is available in Hawaii; or (3) the child is physically present in the State and has been abandoned or an emergency situation with respect to his care exists; or (4) no other state apparently has jurisdiction over the controversy or another state has deferred to Hawaii in the...
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