Susan L. v. Steven L., S-06-102.

CourtSupreme Court of Nebraska
Writing for the CourtMcCormack
Citation729 N.W.2d 35,273 Neb. 24
PartiesSUSAN L., Appellant, v. STEVEN L., Appellee.
Docket NumberNo. S-06-102.,S-06-102.
Decision Date02 February 2007
729 N.W.2d 35
273 Neb. 24
SUSAN L., Appellant,
STEVEN L., Appellee.
No. S-06-102.
Supreme Court of Nebraska.
February 2, 2007.

[729 N.W.2d 37]

Sheri A. Wortman, of McHenry, Haszard, Hansen, Roth & Hupp, P.C., Lincoln, for appellant.

Christopher A. Furches, of Johnson, Flodman, Guenzel & Widger, Lincoln, for appellee.




In October 2000, the Supreme Court of British Columbia, Canada, issued an original custody determination granting "sole interim custody" of Steffany L. to her mother, Susan L. In accordance with the order, Susan moved with Steffany to Lincoln, Nebraska, and they have lived in Nebraska since then. After Steffany reported sexual abuse by her father, Steven L., during visitation in Canada, Susan

729 N.W.2d 38

asked that the district court for Lancaster County "assume jurisdiction over the final determination of paternity, custody and support." Her request was under the Convention on the Civil Aspects of International Child Abduction (Hague Convention), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, as implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601 to 11611 (2000 & Supp. III 2003).

Because the Canadian court refused to cede jurisdiction to Nebraska, and Steven still resides in British Columbia, the Uniform

273 Neb. 26

Child Custody Jurisdiction and Enforcement Act (UCCJEA), Neb.Rev.Stat. §§ 43-1226 to 43-1266 (Reissue 2004), provides that Nebraska does not have jurisdiction to modify the custody determination. Susan asserted, however, that the application of the UCCJEA to bar the district court's jurisdiction in this case was preempted by the Hague Convention and that the UCCJEA violated the Nebraska Constitution in various respects. The district court concluded it did not have jurisdiction to modify the Canadian custody order, and Susan appeals.


Susan and Steven were both living in British Columbia when their relationship resulted in the birth of Steffany on March 19, 1998. Susan and Steven were never married. Steven is a citizen of Canada, while Susan is a citizen of the United States.

On October 18, 2000, the Supreme Court of British Columbia, a Canadian trial court of general jurisdiction, issued an "Interim Order" granting sole interim custody of Steffany to Susan and allowing Susan to move with Steffany to Nebraska. The court also specified interim access rights for Steven and various elements of "interim joint guardianship." Susan and Steffany have lived in Lincoln since October 2000.

After returning from visitation with Steven during the spring of 2004, Steffany reported to her therapist various incidents which led the therapist to believe that Steffany had been sexually abused by Steven during the visit. The alleged abuse was reported to the Lincoln Police Department.

The Lincoln police contacted the police department in Delta, British Columbia, so that it could investigate the allegations of abuse. The therapist's report and taped interviews by the Lincoln police were forwarded to the Delta police. Steven voluntarily suspended Steffany's scheduled summer visitation. The Delta police conducted an investigation and, in September 2004, advised that they were not going to bring criminal charges against Steven.

Susan filed a "Petition for Registration of Foreign Judgment" with the district court for Lancaster County. Around this same time, Susan filed a motion with the Supreme Court of British Columbia, asking the Canadian court to decline to exercise jurisdiction over Steffany in favor of Nebraska. Susan also filed a

273 Neb. 27

motion with the district court "to assume jurisdiction and suspend visitation." The motion referred to the pending motion in Canada and also asserted that recent allegations of abuse warranted the court's exercise of temporary emergency jurisdiction under § 43-1241. The parties apparently agreed at that time that unless the British Columbia court declined jurisdiction, the district court would not have jurisdiction over Steffany's custody.

On November 19, 2004, the Supreme Court of British Columbia issued an order denying Susan's motion for the court to decline jurisdiction. The court noted that there were relevant witnesses in both

729 N.W.2d 39

countries and that the alleged abuse took place in British Columbia. The court stated that it could not reach any conclusion about the veracity of the allegations of abuse based upon the evidence currently before it. Still, the court did modify the existing access order to provide that Steven and Steffany would not sleep in the same bedroom and that when Steven was with Steffany, another adult would always be present. The court also set forth specific limitations to Susan's telephone access during Steffany's visits with Steven and denied a motion by Steven to increase his access time. Susan filed an application before the British Columbia Court of Appeal to appeal the November 19 order.

Relying on the November 19, 2004, order, Steven filed an objection in the district court for Lancaster County to Susan's motion to assume jurisdiction and suspend visitation. The hearing on Susan's motion to assume jurisdiction and suspend visitation was continued by agreement of the parties. On December 17, Susan filed a motion to assume temporary emergency jurisdiction to prevent Steffany's upcoming Christmas visitation with Steven. On December 23, the district court denied the motion, but visitation did not take place. On February 1, 2005, Steven filed a motion in the district court to enforce the Canadian custody and visitation orders.

The British Columbia Court of Appeal, on January 14, 2005, denied Susan's motion for leave to appeal the November 19, 2004, order, explaining that the appeal was merely an attempt to overturn the discretionary decision of the trial judge as to whether British Columbia was the proper forum for future custody issues relating to Steffany. On February 22, 2005, the district court

273 Neb. 28

for Lancaster County granted Steven's motion to enforce the Canadian visitation orders.

Visitation again took place in the summer of 2005, when Steffany was 7 years old. Although Steffany had undergone counseling and had a code word to let Susan know if she needed help, Susan apparently was unable to get any of her calls through to Steffany during the visit. Steffany was allegedly very upset after returning to Susan and eventually reported more incidents of sexual abuse by Steven during that visit. The Delta police were again contacted with regard to the new allegations and were sent copies of interviews with Steffany and other relevant persons in Nebraska. Again, the Delta police did not press charges against Steven.

On November 28, 2005, Susan filed in the district court for Lancaster County a "Complaint to Establish Paternity, Determine Custody, Set and Define Support and Modify an Interim Order Issued by the Supreme Court of British Columbia." On December 16 and 19, Susan filed a motion to "assume jurisdiction" and an amended motion of the same. Susan alleged that the district court should assume jurisdiction under the Hague Convention and should declare § 43-1230(a) and (b) unconstitutional to the extent that, read in conjunction with § 43-1240(1), the provisions abdicate authority to determine jurisdiction over a child to a court of a foreign country.

In October 2005, Steven filed an affidavit with the Supreme Court of British Columbia requesting additional time with Steffany during Steffany's Christmas vacation in 2005 and spring break in 2006. Susan again asked the court to vary the November 19, 2004, order so as to decline jurisdiction over Steffany in favor of Nebraska. Alternatively, Susan asked the court to cede jurisdiction to Nebraska to adjudicate the "complaint of protection" of Steffany and defer determination of jurisdiction

729 N.W.2d 40

over custody and access until a factual determination on the protection complaint had been made. Until a final determination of jurisdiction, Susan asked that Steven's visitation either be suspended or take place in Nebraska, supervised by a professional supervision agency. On December 14, 2005, the Canadian court denied Susan's application. The court granted Steven's application for additional visitation days and ordered that the supervision provisions contained in the November 19, 2004, order remain in full force and effect.

273 Neb. 29

The district court for Lancaster County, on December 22, 2005, denied Susan's December 19 amended motion to "assume jurisdiction" to modify custody and visitation. Susan appeals from the December 22 order.


Susan asserts that the district court erred in determining (1) that it did not have jurisdiction over the issues of paternity, custody, visitation, and support for Steffany; (2) that it did not have jurisdiction to suspend visitation between Steffany and Steven; (3) that the UCCJEA was not preempted by the Hague Convention; and (4) that § 43-1230(a) and (b) is not unconstitutional.


When a jurisdictional question does not involve a factual dispute, determination of the issue is a matter of law, which requires an appellate court to reach a conclusion independent from that of the trial court. Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006).


Susan appeals the order of the district court finding that it did not have jurisdiction to modify the terms of the Canadian custody orders and accordingly could not "assume jurisdiction" pursuant to Susan's motion. The UCCJEA, § 43-1240, provides that except for temporary emergency jurisdiction under § 43-1241, a court of this state may not modify a child custody determination made by a court of another state unless this state would otherwise have jurisdiction under § 43-1238(a)(1) or (2) and the other state has lost exclusive continuing...

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