Stuart v. Stuart

• Citation: 516 So.2d 1277
• Decision Date: 02 December 1987
• Docket Number: Nos. 19181-CA and 19182-CA,s. 19181-CA and 19182-CA
• Parties: Patricia Ann Siwek STUART, Plaintiff/Appellant, v. Richard Byron Thomas STUART, Defendant/Appellee. Richard Byron Thomas STUART, Plaintiff/Appellee, v. Patricia Ann Siwek STUART, Defendant/Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1277

516 So.2d 1277

Patricia Ann Siwek STUART, Plaintiff/Appellant, v. Richard Byron Thomas STUART, Defendant/Appellee.

Richard Byron Thomas STUART, Plaintiff/Appellee, v. Patricia Ann Siwek STUART, Defendant/Appellant.

Nos. 19181-CA and 19182-CA.

Court of Appeal of Louisiana,

Second Circuit.

Dec. 2, 1987.

Northwest Louisiana Legal Services by Ross E. Shacklette, Shreveport, for plaintiff/appellant in No. 19181-CA and plaintiff/appellee in No. 19182-CA.

Pat Harrington, Shreveport, for defendant/appellee in No. 19181-CA and defendant/appellant in No. 19182-CA.

Before HALL, C.J., and NORRIS and LINDSAY, JJ.

HALL, Chief Judge.

In this child custody action the mother, Patricia Ann Siwek Stuart, appeals the trial court's awarding of custody of their two minor children to the father, Richard Byron Thomas Stuart, as sole custodial parent. The issue to be decided on appeal is whether the trial court properly exercised jurisdiction under the Uniform Child Custody Jurisdiction Act, LSA-R.S. 13:1700 et seq. We find that the trial court had emergency jurisdiction under LSA-R.S. 13:1702(A)(3), affirm the judgment changing custody to the father but modify the judgment to make it temporary pending further proceedings, and remand the case for further proceedings.

The parties are former husband and wife who were divorced in Bossier Parish, Louisiana on May 17, 1984. At that time the parties were awarded joint care custody and control of the minor children with Mrs. Stuart being designated the primary residential custodian of the minor children, Angelique Christine Stuart born December 6, 1972, and Byron Thomas Stuart born March 9, 1979, with Mr. Stuart having physical custody for a period of two months each summer. Mrs. Stuart was also awarded the sum of $400.00 per month in child support. Mrs. Stuart and the children moved to the state of Washington in 1984 and resided there until June 28, 1986, when the children came to Louisiana to visit their father pursuant to the visitation schedule.

On August 6, 1986, after having the children evaluated by a clinical social worker, the father filed a rule for sole custody alleging numerous acts of neglect and mistreatment on the part of Mrs. Stuart. Mrs. Stuart filed an exception of lack of jurisdiction. Evidence was adduced on August 28, 1986, after which the exception was referred to the merits and the rule was then continued until October 23, 1986. The matter was not heard until January 12, 1987. At that time, the trial court determined that due to evidence adduced at the first hearing emergency jurisdiction existed under LSA-R.S. 13:1702(A)(3). The case proceeded to trial on the merits of the petition to change custody.

At the trial on the merits, Mr. Stuart, the clinical social worker and Angelique Stuart testified. Mrs. Stuart, although represented by counsel, was not present. Counsel stated that she was prevented from coming to Louisiana or being present due to her financial condition. After trial, the trial court found that an emergency situation existed since the mother was intoxicated on a daily basis to such a degree as to not be able to care for her children and that the children had been mistreated and neglected. The court then determined that it is was in the best interest of the children to change the children's custody from Mrs. Stuart to Mr. Stuart. Mrs. Stuart was given reasonable visitation rights under supervision by a responsible party to make sure she was not intoxicated during visits.

The Uniform Child Custody Jurisdiction Act, LSA-R.S. 13:1700 et seq., was promulgated to avoid jurisdictional competition and conflict, promote interstate cooperation, litigate custody where the child and family have the closest connections and where significant evidence concerning the child is most readily available, discourage continuing conflict over custody, deter abductions and unilateral removals of children, avoid relitigation of another state's custody rulings, and promote the exchange of information and mutual assistance between different states. Peery v. Peery, 453 So.2d 635 (La.App. 2d Cir.1984); Gay v. Morrison, 511 So.2d 1173 (La.App. 4th Cir.1987).

In determining whether Louisiana courts have jurisdiction, it is crucial that each of the multi-faceted components of the Act be construed to promote its general purposes. Ingram v. Ingram, 463 So.2d 932 (La.App. 2d Cir.1985). The primary concern, as always, is the best interests of the child. Schroth v. Schroth, 449 So.2d 640 (La.App. 4th Cir.1984); Gay v. Morrison, supra.

For a court of this state to make a custody determination either initially or through modification there must be a jurisdictional basis under LSA-R.S. 13:1702, which provides:

"A. 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:

(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or

(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or

(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he had been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or

(4)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.

B. Except under Paragraphs (3) and (4) of Subsection A, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

C. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody."

The Uniform Child Custody Jurisdiction Act has two paramount purposes: (1) avoiding jurisdictional competition among the states and (2) promoting resolution of custody disputes by the forum deemed most likely to have the maximum amount of relevant information about the case. McGough and Hughes, Charted Territory: The Louisiana Experience with the Uniform Child Custody Jurisdiction Act, 44 La.L.Rev. 19 (1983). The Act utilizes a scheme of potentially concurrent jurisdiction. This scheme recognizes that the proper forum to exercise jurisdiction should have "maximum" rather than "minimum" contacts with the family.

It has been suggested that jurisdiction is arranged in descending preferential order. Snider v. Snider, 474 So.2d 1374 (La.App. 2d Cir.1985); Schroth v. Schroth, supra. The "home state" ¹ is the preferred jurisdiction. Implicit in the Act's rank-order design is the presumption that a child's best interests will ordinarily be served by the assumption of jurisdiction by his home state. 44 La.L.Rev. at 29; LSA-R.S. 13:1702(A)(1). Next in rank is the "significant connection" jurisdiction. LSA-R.S. 13:1702(A)(2). "Emergency jurisdiction" is then provided for in LSA-R.S. 13:1702(A)(3). Finally, there is the "residual" category which applies when no other state would have jurisdiction under the above sections or when another state has declined jurisdiction. LSA-R.S. 13:1702(A)(4).

There is no doubt that the state of Washington is the "home state" within the meaning of the Act. The children lived in that state with their mother from at least May of 1984 until June of 1986. Accordingly, the Louisiana court does not have "home state" jurisdiction.

Nor does the Louisiana court have "significant connection" jurisdiction. The children and their mother had lived in Washington for more than two years. All of the allegations on which the petition for change of custody are based relate to the children's home life and treatment while living with their mother in Washington. A Washington court would have optimum access to available evidence concerning the children's family life with their mother. The only significant connection remaining with Louisiana is the fact that the father and other relatives reside in this state. A number of Louisiana cases have held under similar facts that jurisdiction shifts from the Louisiana court which rendered the original custody decree to the home state and that Louisiana courts do not have jurisdiction or should defer to the home state's jurisdiction. See Counts v. Bracken, 494 So.2d 1275 (La.App. 2d Cir.1986); Wagner v. Wagner, 482 So.2d 780 (La.App. 4th Cir.1986) writ denied 487 So.2d 441 (La.1986); Fouchi v. Fouchi, 477 So.2d 752 (La.App. 5th Cir.1985) writ denied 481 So.2d 634 (La.1986); Fredericks v. Fox, 457 So.2d 1267 (La.App. 1st Cir.1984); and Schroth v. Schroth, supra. See also Moore v. Moore, 379 So.2d 1153 (La.App. 2d Cir.1980). Compare Revere v. Revere, 389 So.2d 1277 (La.1980) which had distinguishing facts supporting "significant connection" jurisdiction.

The issue in this case, then, is whether the trial court had emergency jurisdiction under the Act. Appellee argues that an emergency situation existed in Washington and that the trial court was correct in exercising jurisdiction...