A.B. v. M.B., 96-2106
| Decision Date | 17 September 1997 |
| Docket Number | No. 96-2106,96-2106 |
| Parties | In the Interest of A.B. and N.B., Minor Children, v. M.B., Mother, Appellant. |
| Court | Iowa Supreme Court |
Thomas J. Straka of Law Office of Robert L. Day, Jr., Dubuque, for appellant.
G.T. Reilly of Kintzinger Law Office, P.L.C., Dubuque, for appellee father.
Considered by HARRIS, P.J., and CARTER, ANDREASEN, TERNUS, and SCHULTZ, * JJ.
M.B., the natural mother of children, A.B. and N.B., who were adjudged to be children in need of assistance in an Iowa district court juvenile proceeding, appeals from a judgment recognizing the orders of a Texas court as a basis for not compelling the return of the children to her custody in Iowa following their visitation with their natural father, T.B., in the state of Texas. The mother contends that the Texas court was without jurisdiction. Because we agree with that contention, we reverse the judgment of the juvenile court and remand the case to that court for further proceedings consistent with this opinion.
M.B. and T.B. separated in 1988, and their marriage was dissolved by an Alabama court in 1989. That court made no determination concerning child custody. The children involved, ages ten and eight at the time of the CINA adjudication, have, prior to August of 1996, lived with their mother in Wisconsin and Iowa since 1988. These children were adjudicated in need of assistance in July of 1996, and their temporary custody was placed in their mother, subject to continuing supervision of the Iowa Department of Human Services. The same order granting temporary custody to their mother who resided in Dubuque, Iowa, authorized summer visitation with their father in the state of Texas.
When the children arrived in Texas for visitation with their father in August of 1996, he acted almost immediately to obtain an ex parte order from the District Court of Bexar County, Texas, granting him temporary custody of the children and enjoining the mother from removing them from the state of Texas. At a subsequent hearing, of which the mother had notice but did not attend, the provisions of the ex parte order were confirmed by the Texas court.
Acting on the request of the state of Iowa, the Iowa juvenile court issued a rule to show cause to be served on the father, requiring him to give reason why he should not be found in contempt for not returning the children to their mother in Iowa at the conclusion of the summer visitation authorized by the Iowa juvenile court. The father appeared through counsel at the show-cause hearing. After hearing the evidence presented, the Iowa juvenile court concluded that the Texas court had jurisdiction to enter the orders granting custody of the children to the father and, consequently, declined to find T.B. in contempt. The Iowa juvenile court also declined to order the return of the children to this state for continuing juvenile court involvement. Instead, the court dismissed the pending CINA proceeding as moot.
The same order granting the mother temporary custody subject to continuing juvenile court CINA involvement and granting the father visitation provided:
The court authorizes concurrent jurisdiction pursuant to Iowa Code Section 232.3 for purpose of the parties litigating the issues of custody and visitation.
The statute referred to by the court provides:
1. During the pendency of an action under this chapter, a party to the action is estopped from litigating concurrently the custody, guardianship, or placement of a child who is the subject of the action, in a court other than the juvenile court....
2. The juvenile court with jurisdiction of the pending action under this chapter, however, may, upon the request of a party to the action or on its own motion, authorize the party to litigate concurrently in another court a specific issue relating to the custody, guardianship, or placement of the child who is the subject of the action.
In ruling on the issues presented by the rule to show cause, the juvenile court stated:
[P]ursuant to [this court's] order of July 25th, 1996, authorization ... was given pursuant to Iowa Code section 232.3 for concurrent jurisdiction for purpose of the parties litigating the issues of custody and visitation.... Although it was certainly contrary to the tenor of the court's order for the father to fail to return the children from their summer visit from the State of Texas, the mother was given the opportunity to respond to proceedings in the State of Texas during the month of August on [the father's] application for temporary orders and she neglected to respond personally or by representation after having been served with said papers. Although the court is aware of the mother's financial constraints, she had legal rights and responsibilities to respond to said action in the State of Texas if she objected to their taking jurisdiction and the temporary orders, and she failed to do so and thereby waived her right to come before this court at this time and contest the jurisdictional issues. The State of Texas did accept jurisdiction over the children, and as the State of Texas is not their home state, the court only assumes that it was a "best interest" standard that was utilized.
After reviewing the record and considering the arguments presented, we disagree with the conclusions of the juvenile court in several respects. The first area of disagreement is that court's conclusion that when a juvenile court grants concurrent jurisdiction of custody and visitation issues to another court under section 232.3, the other court is thereby empowered to enter orders that conflict with or frustrate the placement that the juvenile court has temporarily established for purposes of a pending CINA proceeding. We are convinced that this is not the intent of section 232.3. Custody or visitation orders entered by a court granted "concurrent jurisdiction" under this statute are only determinative of the rights of the parents inter se if and when the juvenile court's placement of the children during their CINA status has been rendered of no further effect by orders of the juvenile court.
Simultaneous termination of the juvenile court's involvement was present in this court's application of section 232.3 in In re Guardianship of Murphy, 397 N.W.2d 686, 688-89 (Iowa 1986), relied on by the father. That is not the situation here. Continued involvement with the juvenile court following the CINA adjudication was confirmed by the court's order, and further hearings were to take place in January of 1997. Thus, even if the Texas court did have jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) to render an original custody decree effective between the parents inter se, it was precluded by full-faith and credit principles from frustrating Iowa's interest in protecting children in need of assistance domiciled in this state.
A second point of disagreement with the juvenile court's order results from our conclusion that the Texas court did not have jurisdiction under the UCCJA to enter a custody order binding between the parents inter se. 1 These children had resided continuously in the state of Iowa for more than six consecutive months and prior thereto had resided with their mother in the state of Wisconsin for several years. They had only been in Texas a few weeks for the limited purpose of exercising parental visitation pursuant to the orders of the Iowa juvenile court. As the juvenile court correctly noted, Texas was clearly not the home state of the children. That status is defined as
the state in which the child, immediately preceding the time involved, lived with the child's parents, a parent, or a person acting as a parent, for at least six consecutive months....
Iowa Code § 598A.2(5). Home state status is a prerequisite to jurisdiction under subsection (a) of Iowa Code section 598A.3(1). See In re Marriage of Bolson, 394 N.W.2d 361, 364 (Iowa 1986).
Although subsections (b), (c), and (d) of section 598A.3(1) recognize that there are situations in which jurisdiction may exist under the act in the absence of home state status, those situations are not present in the case now under consideration. These statutory provisions read as follows:
A court of this state which...
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