Barcus v. Barcus

• Decision Date: 25 April 1979
• Docket Number: No. 62357,62357
• Citation: 278 N.W.2d 646
• Parties: John R. BARCUS, Jr., By Miriam A. Miller, his sister and next friend, Appellee, v. John R. BARCUS, Sr. and Betty L. Davis, also known as Betty L. Barcus, Appellants.
• Court: Iowa Supreme Court

Page 646

278 N.W.2d 646

John R. BARCUS, Jr., By Miriam A. Miller, his sister and next friend, Appellee, v. John R. BARCUS, Sr. and Betty L. Davis, also known as Betty L. Barcus, Appellants.

No. 62357.

Supreme Court of Iowa.

April 25, 1979.

Arnold O. Kenyon, III of Kenyon Law Office, Creston, for appellants.

Paul J. Boysen, Jr., of Camp, Harsh & Boysen, Creston, for appellee.

Considered by REES, P. J., and HARRIS, McCORMICK, ALLBEE and LARSON, JJ.

McCORMICK, Justice.

In this case of first impression under the Uniform Child Custody Jurisdiction Act, we must decide whether the trial court erred in refusing to exercise its jurisdiction to decide the merits of a custody dispute. The court sustained a petition for writ of habeas corpus, ordering the child returned to Illinois for decision of the custody issue in a case pending there. We hold that the court did not err in declining jurisdiction but that the transfer of the child should be conditionally stayed pending final adjudication of the custody issue. We affirm the trial court's order as modified.

Iowa is one of twenty-six states which have enacted the Uniform Child Custody Jurisdiction Act (hereinafter "uniform act" or "act"). Illinois is one of the states which have not done so. 9 Uniform Laws Annotated 28 (1978 Supp.). However, Illinois has enacted a statute incorporating the jurisdictional criteria of the uniform act, effective October 1, 1977. See Ill.Rev.Stat. ch. 40, § 601 (Smith-Hurd 1978 Supp.). Iowa's statute was effective July 1, 1977. See 1977 Session, 67th G.A., ch. 139. All references will be to the act as it appears in chapter 598A, The Code 1979.

This habeas corpus case involves competing claims for the custody of plaintiff John R. Barcus, Jr. ("Johnny"), born September 27, 1967. Contestants are Miriam A. Miller, his half-sister, who initiated this proceeding, and John R. Barcus, Sr. ("John"), his father. John's present wife Betty L. Barcus is joined with him as defendant.

Johnny is the only child of John's marriage to Violet Barcus. Miriam is Violet's daughter from a prior marriage. John and Violet were married in Illinois in 1960. They moved to Creston when Johnny was six-months old. Their marriage was dissolved in 1975. Violet was awarded custody of Johnny, but by agreement of the parties the child stayed with John for the first six months after the dissolution.

Violet then cared for Johnny until she was disabled by serious illness in 1977. On April 30, 1977, she moved with Johnny from Creston to Miriam's home in Elburn, Illinois. Violet died in Illinois on July 18, 1977.

John read of Violet's death in a local newspaper. He went to Illinois in an effort to get Johnny, but Miriam refused to let him see him. Violet had nominated Miriam as guardian of Johnny in a will executed in May 1977. A few days after Violet's death, John married Betty.

On July 29, 1977, John obtained an ex parte order in the Union County dissolution action, awarding Johnny's custody to him. On the same date, Miriam obtained an ex parte order from the circuit court in Kane County, Illinois, appointing her as Johnny's guardian. These events set the stage for the subsequent jurisdictional competition.

In August 1977 John initiated three actions in the Illinois court. One was a petition to register his custody order as a foreign decree; another was a petition to vacate the guardianship order; and the third was a petition for writ of habeas corpus in which he requested Johnny's custody.

These Illinois actions were united in a single proceeding. A hearing commenced on the habeas corpus petition on August 17, 1977. John was the only witness. His testimony included statements that he and Betty were planning to move to Illinois and had made a down payment on a house in St. Charles in preparation for doing so. He said they intended to use Betty's substantial assets to go into business in that area. In the present case, he testified they had no intention of moving to Illinois and insisted he was only reporting an investment in residential real estate to the Illinois court in his prior testimony.

On August 18, 1977, the Illinois court ruled that Johnny's custody should temporarily remain with Miriam but ordered that John be allowed to take him for visitation from that date until August 29, at which time he was to be returned to Miriam so he could start school the next day. A psychiatric examination of the child was ordered, and hearing on the merits of the custody issue was set for September 29, 1977.

John took his son to Iowa and did not return him to Illinois. The Illinois court subsequently found John in contempt and ordered a body attachment to issue. John's petitions for registration of a foreign decree and to vacate the guardianship were dismissed. However, the record does not show dismissal of the Illinois habeas corpus action.

In November 1977 Miriam brought the present habeas corpus action in Union County. She recited the history of prior litigation, alleged defendants' detention of Johnny was unlawful, and prayed for his return to her custody. In his answer, John denied the legality of the Illinois guardianship order, asserted his right to custody based on his Iowa custody order, and alleged Johnny's best interests required that he be awarded custody.

Miriam's action was not tried until August 24, 1978. On that date Miriam filed a request that the court refuse to exercise jurisdiction to adjudicate the merits of the custody dispute, pursuant to various provisions of the uniform act. After hearing the evidence, the trial court granted this request and sustained the petition for habeas corpus, ordering Johnny returned to Miriam pending trial of the custody issue in Illinois.

Defendants appealed, and we stayed the transfer of custody pending decision of the appeal.

In enacting the uniform act, the legislature directed that it be construed to (1) avoid jurisdictional competition and conflict with courts of other states in matters of child custody with attendant harm to children from shifting them from state to state, (2) promote cooperation with courts of other states to the end that the custody decision is made in the state which can best decide the case in the interest of the child, (3) assure that custody litigation takes place in the most appropriate forum, (4) discourage continuing controversies over child custody to foster stability, (5) deter abductive and other unilateral removals of children to obtain custody awards, (6) avoid relitigation of custody decisions of other states in this state, (7) facilitate enforcement of sister-state custody decrees, (8) promote exchanges of information and mutual assistance between courts of this state and other states concerned with the same child, and (9) make uniform the law of the states which adopt the act. § 598A.1.

As noted by the Colorado Supreme Court, the underlying policy of the act is "to eliminate jurisdictional fishing with children as bait." Wheeler v. District Court, 186 Colo. 218, 220, 526 P.2d 658, 660 (1974).

In seeking reversal of the trial court in this case, defendants contend (1) the act is applicable only when the other state involved has also enacted it, (2) the court lacked authority to defer to the jurisdiction of the Illinois court, (3) the court had no power to sustain the writ of habeas corpus, after declining jurisdiction, (4) the action of the court denied them due process, and (5) the best interests of the children required the court to decide the merits of the custody issue.

I. Applicability of the act. Under section 598A.6, a court of this state should not exercise its jurisdiction "if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this chapter, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons." Defendants assert this provision makes the statute inapplicable since Illinois did not then have a comparable statute and therefore could not have been "exercising jurisdiction substantially in conformity" with the act. Because the events here occurred before Illinois' adoption of the uniform act jurisdictional criteria, this issue is not affected by that enactment. Nonetheless, defendants' contention is without merit.

In the first place, section 598A.6 concerns only one of several possible grounds for declining jurisdiction, the situation where a custody case is pending in another state. Its requirements do not affect the grounds for refusing jurisdiction in sections 598A.7, based on inconvenient forum, and 598A.8, based on a petitioner's conduct. Even if the terms of section 598A.6 were not satisfied, the act might still be applicable upon another ground.

Second, the act defines "state" to include all states, not merely those having the uniform act. § 598A.2(10).

Third, the commissioners in their prefatory remarks said the act is not a reciprocal law. 9 Uniform Laws Annotated, Uniform Child Custody Jurisdiction Act, 102 ("It can be put into full operation regardless of enactment by other states."). In their commentary to the relevant section, which appears in our statute as 598A.6, they explained that for a pending case in another state to be a basis for declining jurisdiction the other state need only be exercising jurisdiction under criteria delineated in the act. Id. at 112. These criteria are listed in section 598A.3. Subsection 1(b) authorizes jurisdiction if

(i)t is in the best interest of the child that a court of this state assume jurisdiction because the child . . . and at least one contestant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships . . . .

The Illinois court was exercising jurisdiction in...