Benic v. Fox, Case No. 2010 DRB 277
| Decision Date | 21 July 2015 |
| Docket Number | Case No. 2010 DRB 277 |
| Parties | PATRICK BENIC v. MARGARET FOX |
| Court | D.C. Superior Court |
The Court grants the motion of defendant Margaret Fox to deny plaintiff Patrick Benic's motion concerning custody of their daughter K.B. (born [Redacted] (K.B.). Both the District of Columbia and Maryland have adopted the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). Under the UCCJEA, Mr. Benic has commenced a new child-custody proceeding seeking an initial child-custody determination because the child-custody proceeding that Mr. Benic began in 2010 concluded with a final judgment that did not include a child-custody determination. Because Ms. Fox initiated a child-custody proceeding in Maryland before Mr. Benic initiated this proceeding in the District of Columbia, the Maryland court must, in the first instance, address the parents' current custody dispute. To paraphrase Upson v. Wallace, 3 A.3d 1148, 1164 (D.C. 2010), "The UCCJEA is intended to prevent competing custody proceedings in different states, and its operation in this case [will do] just that, allowing for a custody determination to proceed to its conclusion in [Maryland]."
On January 29, 2010, Mr. Benic filed a complaint seeking a divorce from Ms. Fox, and in his prayer for relief, he asked the Court to grant the parents joint legal custody and determine an appropriate shared physical custody arrangement.
On September 14, 2010, the Court granted the partes a divorce. They represented that they had entered into a Settlement Agreement that resolved all custody issues and that there were no issues remaining to be adjudicated by the Court. The parties did not ask the Court to incorporate or merge the Settlement Agreement. Nor did they ask the Court to enter a child-custody determination based on a finding under D.C. Code § 16-914(h) that clear and convincing evidence did not indicate that their agreed-on custody arrangement was not in K.B.'s best interest. The judgment was amended on October 29, 2010, but only to address the disposition of certain retirement assets.
The parents now disagree about where K.B. should start high school in a month or so. On May 8, 2015, Ms. Fox commenced a child-custody proceeding in the Circuit Court for Montgomery County, Maryland seeking full legal custody of K.B. Mr. Benic was served on May 16, 2015. See Pl. Opp. at 2 n.1; Pl. Motion to Modify at 3 ¶ 15.
Rather than litigate custody issues in Maryland, Mr. Benic chose to file in this Court on June 17 a motion to modify custody , seeking sole legal custody to decide educational issues.
On June 30, 2015, Ms Fox filed a motion to strike and/or dismiss Mr. Benic's modification motion on the ground that the current custody dispute must be adjudicated in a Maryland court consistent with the UCCJEA. On July 15, 2015, Mr. Benic filed an opposition, so the motion is ripe for decision.
According to Mr. Benic, the Maryland court had not held any hearings or made any decisions as of July 15. See Pl. Opp. at 2 n.1.
In his motion, Mr. Benic is seeking "an initial child-custody determination" within the meaning of § 16-4602.01(a), not modification of a prior determination pursuant to the Court'sexclusive, continuing jurisdiction under § 16-4602.02(a). Mr. Benic is seeking "an initial child-custody determination" because no court - whether in the District of Columbia or anywhere else - previously made a child-custody determination. The Court cannot treat Mr. Benic's motion as a request for the Court to exercise its exclusive, continuing jurisdiction under D.C. Code § 16-46092.02(a) because that provision applies only if "a court of the District of Columbia ... has made a child-custody determination" and the Court never made a child-custody determination about K.B. As a result, the Court can grant Mr. Benic the relief he seeks only if it has jurisdiction to make an initial child-custody determination.
Mr. Benic contends that this analysis is incorrect because his motion to modify is part of the child-custody proceeding that commenced in January 2010, and the Court therefore had exclusive, continuing jurisdiction to make an initial child-custody determination when he filed his motion to modify in June 2015. Section 16-4601.01(4) defines a "child-custody proceeding" to mean "a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue," including "a proceeding for divorce ... in which the issue may appear." Section 16-4601(5) defines "commencement" to mean "the filing of the first pleading in a proceeding." Thus, Mr. Benic commenced a child-custody proceeding in January 2010 when he filed his complaint for divorce and asked the Court to adjudicate custody issues.
It is true, as Mr. Benic argues, that "[t]he jurisdiction of the court is determined at the onset of the custody proceeding, and continues until a court of competent jurisdiction determines that it no longer has continuing, exclusive jurisdiction." Upson, 3 A.3d at 1164 (citing D.C. Code §§ 16-4602.01 (a)(1) & (2), -4602.02 (a)). However, child-custody proceedings conclude as well as commence, and as Upson recognizes, a court has exclusive, continuing jurisdiction under the UCCJEA during the pendency of a child-custody proceeding "until the conclusion ofthe custody matter " See id. at 1164, If the child-custody proceeding concludes with a child-custody determination, the court that made the determination retains exclusive, continuing jurisdiction as long as 16-4602.02(a) provides for it. If, however, the child-custody proceeding concludes without a child-custody determination, a parent who later wants an initial child-custody determination must commence a new child-custody proceeding in a state that has jurisdiction to make such a determination.
The UCCJEA has different rules concerning jurisdiction in a child-custody proceeding before judgment and after judgment. If a state had "jurisdiction at the outset of the custody proceedings, [it] continued to have exclusive, continuing jurisdiction under the UCCJEA until the conclusion of the custody matter, despite the fact that [the child and parent] ceased to live there." See Upson, 3 A.3d at 1164. If, however, all parties move out of the state after the conclusion of the proceedings, the court would lose exclusive, continuing jurisdiction concerning modification because § 16-4602.02(a)(2) makes clear that a court has exclusive, continuing jurisdiction until "the child, the child's parents, and any person acting as a parent do not presently reside in the District."
It is significant that the UCCJEA expressly provides for exclusive, continuing jurisdiction only if "a court of the District of Columbia ... has made a child-custody determination." See D.C. Code § 16-46092.02(a). It is not a mere oversight that the UCCJEA does not provide for exclusive, continuing jurisdiction after the conclusion of a case if the court did not make a child-custody determination. If the parents choose (for whatever reason) to conclude a child-custody proceeding without a child-custody determination, and one parent later decides to seek such a determination, the parent may commence a new child-custody proceeding in a different state, provided that the court of that state has jurisdiction to make an initial child-custodydetermination. One - and only one - state will have jurisdiction to make an initial child-custody determination because the court in which the new proceeding is commenced will apply the hierarchical jurisdictional tests in the UCCJEA, just as it would if there had not been an earlier child-custody proceeding. Thus, the new child-custody proceeding would not create a risk of the evil that the UCCJEA is intended to prevent: "competing custody proceedings in different states." See Upson, 3 A.3d at 1164. The drafters of the UCCJEA recognized that when a child-custody proceeding concludes without a child-custody determination, there is no need to create a presumption of exclusive, continuing jurisdiction, and to put any special burden on the parent who wants to commence a child-custody proceeding in a different jurisdiction.
Mr. Benic does not cite any case that interprets the UCCJEA to mean that a court's jurisdiction continues indefinitely even after entry of a final judgment that did not include a child-custody determination. For her part, Ms. Fox also does not cite any case directly on point. Upson supports the Court's distinction between pre-judgment and post-judgment jurisdiction, but it does not resolve the issue currently raised by Ms. Fox and Mr. Benic. In Upson, when the mother and child lived in Virginia and the father reportedly lived in the District of Columbia, the mother filed a child support case in the District; in the D.C. child support case, each parent asked the court to make an initial child-custody determination, and each parent then formally dismissed his or her request for a custody determination, after the dismissals of the custody requests and while the mother and child still lived in Virginia, the father commenced a child-custody proceeding in Virginia, while the Virginia proceeding was underway, the mother moved with the child to the District of Columbia and commenced a custody...
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