Custody of Ross, Matter of

• Decision Date: 30 June 1981
• Docket Number: No. 7,7
• Parties: In the Matter of the CUSTODY OF Jennifer Lynn ROSS, a minor child. Paolina GRUBS, Petitioner, v. Clyde E. ROSS, Respondent. UCCJ; CA 15346; SC 27261.
• Court: Oregon Supreme Court

Page 353

630 P.2d 353

291 Or. 263

In the Matter of the CUSTODY OF Jennifer Lynn ROSS, a minor child.

Paolina GRUBS, Petitioner, v. Clyde E. ROSS, Respondent.

No. 7 UCCJ; CA 15346; SC 27261.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 4, 1981.

Decided June 30, 1981.

Leeroy O. Ehlers, Pendleton, argued the cause and filed a brief for petitioner.

Gary R. Luisi, Hermiston, argued the cause and filed a brief for respondent.

PETERSON, Justice.

This case involves the abduction and subsequent concealment of a child by her father in anticipation of pending divorce proceedings in Montana, in order to obtain de facto custody and exclude the mother from any custody. When the present custody action was commenced in May, 1979, the child was a little over three years of age; at the time of her abduction by her father, she was 19 months old. The case squarely presents the problem of determining the jurisdictional limitations that ORS 109.840 section 14 of the Uniform Child Custody Jurisdiction Act (The UCCJA, or, herein the "Act") imposes on a forum state in applying the provisions of the Act where modification of a custody decree from another state is involved.

In this opinion we will refer to the parties as "father" and "mother," to the state where the original custody decree was made in this case, Montana as the "decree state," and to the state where modification is sought in this case, Oregon as the "forum state."

We draw upon the opinion of the Court of Appeals, 47 Or.App. 631, 614 P.2d 1225, for the facts:

"The child was born in Billings, Montana, January 19, 1976. Her parents were married (four) months later. The parties separated August 26, 1977. Two days later, while father had the child temporarily in his custody, he left Billings with the child and an 18-year old woman he had known about a month. He married this woman shortly before the Oregon custody hearing.

"Mother filed for divorce in Montana on August 30, 1977. Service was made by publication, father's whereabouts being unknown. (Father continued to reside in Montana for nearly two months following the abduction.) Mother was granted a divorce by default and awarded custody of the child on October 26, 1977. Unable to locate the child, mother in December, 1977, initiated criminal charges against father for custodial interference.

"Meanwhile father, his girlfriend and the child had settled in Milton-Freewater, Oregon, in October, 1977. Father had contacted mother to assure her of the child's safety and to tell her he intended to keep the child with him. He was aware the mother was taking steps to gain physical custody of the child, but he made no move to seek lawful custody himself.

"Father continued to make occasional phone calls to mother to assure her of the child's welfare, but he never disclosed the child's location. Mother had no knowledge of the child's whereabouts until May 15, 1979, when father was arrested in Milton-Freewater for custodial interference.

"Mother then filed this suit in Umatilla County Circuit Court, petitioning for enforcement of the Montana decree. Father's answer prayed the Oregon court to assume jurisdiction and hold a full hearing to determine custody of the child and asked that custody be awarded to him.

"Following a hearing on May 18, 1979, the court concluded that Oregon has jurisdiction and that an Oregon court should exercise its jurisdiction and hold a custody hearing. The court denied mother's petition for enforcement of the Montana decree. The custody hearing was held on July 11 and 12, 1979, and on July 23, the court awarded custody of the child to father." 47 Or.App. at 633-634, 614 P.2d 1225.

The Court of Appeals affirmed. Its opinion indicates that the court believed that a previous decision of this court, Settle and Settle, 276 Or. 759, 556 P.2d 962 (1976), required affirmance. Presiding Judge Joseph concurred specially, suggesting that Settle should be re-examined. 47 Or.App. at 639, 614 P.2d 1225.

Because of the public importance of the problems presented by this case and the national recognition being accorded the problem of parental seizure, restraint, concealment and interstate transportation of children with concomitant disregard of court orders and excessive relitigation, because of the harm to children that "seize-and-run" tactics may engender, and because of our concern whether Settle was correctly decided, we granted the mother's petition for review.

EVENTS LEADING TO ADOPTION OF UNIFORM CHILD CUSTODY JURISDICTION ACT

Considerable confusion, and even greater dissatisfaction, have resulted from the proliferation of conflicting opinions from various state courts in determining child custody questions where the parties resided in different states, and where courts of several states either entered conflicting decrees or concurrently exercised jurisdiction on the same issue. Decisions of the Supreme Court of the United States have done little to resolve the ongoing problems. ¹

Until the adoption of the Act, the trend was " * * * to sue in the courts of almost any state, no matter how fleeting the contact of the child and family was with the particular state, with little regard to any conflict of law rules. ² There was little certainty as to which state had jurisdiction when persons seeking custody of a child simultaneously or successively sought relief in courts of different states, there was no certainty that a decree rendered in one state would be enforced in another, and there was no rule as to when one state could or should modify the custody decree of another state. ³ This resulted in situations in which a party might face contempt punishment and perhaps criminal charges for child stealing in one state when complying with the decree of another. Some states, deeming that the state had an interest in the domestic tranquility of its citizens and residents, overturned custody decrees made in another state. ⁴ Oregon was not exempt from such problems. See Hawkins v. Hawkins, 264 Or. 221, 504 P.2d 709 (1972); ⁵ Dieringer v. Heiney, 10 Or.App. 345, 497 P.2d 1201 (1972); Duke v. Hanna, 5 Or.App. 223, 483 P.2d 471 (1971); Bacon v. Bacon, 3 Or.App. 85, 472 P.2d 283 (1970); Godfrey v. Godfrey, 228 Or. 228, 364 P.2d 620 (1961); Fox v. Lasley, 212 Or. 80, 318 P.2d 933 (1957); Allen v. Allen, 200 Or. 678, 268 P.2d 358 (1954); Lorenz v. Royer, 194 Or. 355, 241 P.2d 142, 242 P.2d 200 (1952).

Dissatisfaction with such problems led the Commissioners on Uniform State Laws to draft the UCCJA, which has now been adopted, without substantial amendment in most cases, in some 38 states. ⁶ The Uniform Commissioners, when drafting the Uniform Child Custody Jurisdiction Act, recognized the singular importance and present and pressing need to eliminate laws which encouraged or fostered the unilateral abduction and concealment of children by one of their warring parents seeking to avoid an unfavorable custody decree, existing or prospective, while searching for a more favorable forum. The Commissioners described the Act as follows:

"The Act is designed to bring some semblance of order into the existing chaos. It limits custody jurisdiction to the state where the child has his home or where there are other strong contacts with the child and his family. See Section 3. It provides for the recognition and enforcement of out-of-state custody decrees in many instances. See Sections 13 and 15. Jurisdiction to modify decrees of other states is limited by giving a jurisdictional preference to the prior court under certain conditions. See Section 14. Access to a court may be denied to petitioners who have engaged in child snatching or similar practices. See Section 8. Also, the Act opens up direct lines of communication between the courts of different states to prevent jurisdictional conflict and bring about interstate judicial assistance in custody cases." ⁷

The Act aims to avoid the jurisdictional conflicts and confusions which have resulted in the past by providing, as clearly as possible, for one court in one state to have major responsibility to determine who is to have custody of a particular child. Unfortunately, the Act has failed to achieve its goal in some cases.

DISCUSSION OF PERTINENT SECTIONS OF THE UCCJA

ORS 109.720(2) provides that the Act " * * * shall be construed to promote the general purposes stated in this section." ORS 109.720(1) ⁸ lists nine general purposes, the first two of which are:

"(1) The general purposes of ORS 109.700 to 109.930 are to:

"(a) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;

"(b) Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;

There are two additional general purposes which have specific relevance to this case. ORS 109.720(1)(c) and (e) provide that the Act aims to:

"(c) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state;

" * * * * *.

"(e) Deter abductions and other unilateral removals of children undertaken to obtain custody awards;"

Relevant jurisdictional provisions of the Act include ORS 109.730 and ORS 109.840. ORS 109.730 provides, in part, as follows:

"(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

"(a) This state is the home state of the child at the...