Marriage of Harris, Matter of
| Decision Date | 28 October 1994 |
| Docket Number | No. 71071,71071 |
| Citation | 20 Kan.App.2d 50,883 P.2d 785 |
| Court | Kansas Court of Appeals |
| Parties | In the Matter of the MARRIAGE OF Edward L. HARRIS, Appellant, and Brukentta M. Harris, Appellee. |
Syllabus by the Court
1. The Uniform Child Custody Jurisdiction Act, K.S.A. 38-1301 et seq., expressly applies to an initial determination of custody in a divorce proceeding. The 1982 amendment to K.S.A. 60-1610 did not repeal or amend the provisions of the Act relating to initial determinations of child custody in divorce proceedings.
2. Application of the jurisdictional standards of the Uniform Child Custody Jurisdiction Act, K.S.A. 38-1301 et seq., to initial determinations of custody in divorce proceedings does not violate parents' equal constitutional rights to custody of their children as provided by Kan. Const. art. 15, § 6. Under the Act, all parents seeking initial determinations of custody in a Kansas divorce proceeding are subject to the same jurisdictional rules.
3. The purpose of the Uniform Child Custody Jurisdiction Act, K.S.A. 38-1301 et seq., is to limit jurisdiction rather than to proliferate it. Jurisdiction under the Act requires maximum rather than minimum contacts between the child and the forum state. Accordingly, K.S.A. 38-1303(a)(2) must be construed narrowly so that, ordinarily, child custody litigation takes place in the state with which the child and the child's parents have the closest connections. In most cases this will be the child's home state under K.S.A. 38-1302(e). The presence of one parent in the state and occasional visits to the state by a child are not sufficient to establish a significant connection under K.S.A. 38-1303(a)(2).
4. A child's best interests are served when a custody determination is made in the state that has the closest connections to the child.
5. Significant connection jurisdiction under K.S.A. 38-1303(a)(2) requires, in addition to significant connections between the child and this state, that it is in the child's best interests that custody be decided in Kansas. The Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (1988), does not require other states to give full faith and credit to a child custody determination based on significant connection jurisdiction when another state is the child's home state. It is not in a child's best interests for a court of this state to make a child custody determination that can be ignored in other states.
6. When another state is a child's home state, a court of this state must decline to exercise significant connection jurisdiction under K.S.A. 38-1307(a). It is inherently an abuse of discretion for a court to make a custody determination that can be freely ignored by other states under the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (1988).
Charles E. Watson, Wellington, for appellant.
William A. Vickery, of McMaster & McMaster, Wichita, for Appellee.
Before BRISCOE, C.J., ROYSE, J., and E. NEWTON VICKERS, District Judge Retired, assigned.
Edward L. Harris, petitioner in a divorce proceeding, appeals from the district court's ruling that it had no jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), K.S.A. 38-1301 et seq., to determine who should have custody of the parties' two minor children.
Edward and Brukentta Harris were married in Georgia in 1989. They have two minor children, Zachariah born in 1989, and Kelsey born in 1992. Since their birth, the children have lived with their parents in Georgia, Nevada, Indiana, and again in Georgia. The parties and their children resided together in Georgia from January 1993 until March 1993, when the parents separated and the father returned to his family home in Kansas. The mother and the children remained in Georgia. The father continued to support the family, but in August 1993, the mother began denying him telephone contact with the children.
On September 25, 1993, the father visited the family in Georgia. The parties have stipulated that he took the children back to Kansas without the mother's knowledge or consent. According to a police report on the incident, he told the mother he was taking the children to McDonald's for Zachariah's birthday. At that time, there was no court order granting custody to either parent, and no child custody proceedings were pending anywhere.
On September 27, 1993, the father filed a petition for divorce in Kansas, seeking custody of the children. The trial court entered an ex parte order granting the father temporary custody of the children. On October 12, the mother filed for divorce in Georgia, seeking custody of the children. Three days later, she filed a motion in Kansas seeking modification of the temporary custody order, arguing that under the UCCJA, custody should be determined in Georgia. She raised the same issue in her answer to the divorce petition.
Although the children had not resided in Kansas until the father brought them to his family home, and the parents had never resided in Kansas while they were married, the parties have stipulated that the children have a significant connection to both Georgia and Kansas, and that substantial evidence concerning their present and future care, protection, training, and personal relationships is available in both states.
The trial court ruled that it had no jurisdiction under the UCCJA to determine child custody. The court concluded that Georgia was the children's home state, where they had more significant connections, and that it would not be in their best interests to determine custody in Kansas. The court also ruled that if it had jurisdiction, it should be declined under K.S.A. 38-1308(a) because the father's conduct in taking the children to Kansas and obtaining an ex parte order for temporary custody constituted wrongful or reprehensible conduct. After denying the father's motion to alter or amend, the court rescinded the temporary custody order and ordered the father to turn the children over to the mother. In the divorce decree, the trial court repeated its ruling that it lacked jurisdiction to determine child custody.
The father contends the UCCJA is inapplicable to an initial determination of child custody in a divorce proceeding under K.S.A.1993 Supp. 60-1610. He argues that the UCCJA is limited to proceedings for change or modification of prior custody orders. These arguments are without merit.
The issue is one of statutory construction, which is a question of law, and the appellate court is not bound by the decision of the trial court. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
The UCCJA expressly applies to an initial determination of custody in a divorce proceeding. K.S.A. 38-1303(a) provides that a district court "has jurisdiction to make a child custody determination by initial or modification decree" if one of four sets of circumstances are present. K.S.A. 38-1302(d) defines a "[d]ecree" or "custody decree" as "a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree." Subsection (b) defines a "[c]ustody determination" as "a court decision and court orders and instructions providing for the custody of a child." Subsection (c) defines a "[c]ustody proceeding" to include proceedings "in which a custody determination is one of several issues, such as an action for divorce or separation." Subsection (f) defines an "[i]nitial decree" as "the first custody decree concerning a particular child." The Comment to § 3 of the UCCJA, 9 U.L.A. 145 (1988), states: "This section governs jurisdiction to make an initial decree as well as a modification decree." See In re Marriage of Mosier, 251 Kan. 490, 494-95, 836 P.2d 1158 (1992).
The father's argument is based on the legislative history of 60-1610. When the legislature adopted the UCCJA in 1978, it amended K.S.A. 60-1610(a) to provide: "The court shall make provision for the custody of the minor children only when the court has jurisdiction to make a child custody decree under the provisions of the uniform child custody jurisdiction act." See L.1978, ch. 231, § 30.
In 1982, the legislature amended 60-1610 extensively. L.1982, ch. 152. As amended, the statutory provisions on change of custody provided: "Subject to the provisions of the uniform child custody jurisdiction act (K.S.A. 38-1301 et seq. and amendments thereto), the court may change or modify any prior order of custody when a material change of circumstances is shown." (Emphasis added.) By contrast, the provisions on the criteria for child custody determinations made no reference to the UCCJA. L.1982, ch. 152, § 9. These provisions have not been substantially changed. See K.S.A.1993 Supp. 60-1610(a)(2) and (3).
Viewed alone, this change in the statutory language tends to support the father's argument that the UCCJA is limited to proceedings to change or modify prior custody orders and is inapplicable to an initial determination of custody in a divorce proceeding under 60-1610. However, any presumption that the 1982 amendment to 60-1610 was intended to change the scope of the UCCJA is weak, because it was not an isolated, independent amendment, but part of a general revision of the divorce statutes in L.1982, ch. 152. See Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982).
In effect, the father argues that the provisions of the UCCJA relating to initial determinations of custody in divorce proceedings were repealed by implication by the 1982 amendment to 60-1610. However, repeal by implication is not favored. A statute will not be held to have been repealed by implication unless the later enactment is so repugnant to the first that both cannot be given force and effect. City of Salina v. Jaggers, 228 Kan. 155, 169, 612 P.2d 618 (1980).
Thus, we must construe both statutes together to determine the intent...
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