Wilson v. Gouse, S93G0890

• Court: Supreme Court of Georgia
• Citation: 263 Ga. 887,441 S.E.2d 57
• Docket Number: No. S93G0890,S93G0890
• Parties: WILSON v. GOUSE.
• Decision Date: 09 March 1994

Page 57

441 S.E.2d 57 263 Ga. 887 WILSON
v.
GOUSE. No. S93G0890. Supreme Court of Georgia. March 9, 1994.

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[263 Ga. 895] Carl S. Pedigo, Jr., McCorkle, Pedigo & Johnson, Savannah, Phyllis G. Bossin, Cincinnati, OH, for Wilson.

Dwight T. Feemster, Ronald K. Thompson, Jo Beth Gosdeck, Duffy & Feemster, Savannah, for Gouse.

[263 Ga. 887] FLETCHER, Justice.

We granted certiorari in this interstate child custody dispute from the Court of Appeals' determination that the Chatham County Superior Court has subject matter jurisdiction to modify an Ohio child custody decree. See Gouse v. Wilson, 207 Ga.App. 574, 428 S.E.2d 571 (1993). At issue is whether the Parental Kidnapping Prevention Act (the "PKPA"), 28 U.S.C. § 1738A, applies to the determination of whether a court has jurisdiction to modify a child custody [263 Ga. 888] order of a sister state and whether the Chatham County

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Superior Court had such jurisdiction here. We find the PKPA applies in all interstate child custody disputes and that the applicable statutory provisions place subject matter jurisdiction over the modification of the Ohio custody order at issue in the Georgia courts.

The parties were divorced in 1987 by an Ohio decree awarding custody of their two youngest children to their mother who is now Sue Simpson Gouse. The decree provided that neither parent could remove the children ¹ from Ohio without a court order or the other parent's written consent and that the Ohio court would retain continuing jurisdiction of the minor children. One year later, Gouse sought and received the court's permission to move the two children in her custody to Savannah, Georgia. The court entered an order which again provided that the Ohio court would retain exclusive continuing jurisdiction over the minor children and neither party would initiate an action to modify the custody order in another jurisdiction.

In 1991, after residing in Georgia for over three years and at a time when no actions were pending in the Ohio courts, Gouse filed a petition in the Chatham County Superior Court to modify James Wilson's visitation privileges. The Chatham County Superior Court held it had jurisdiction to modify the Ohio custody decree under OCGA § 19-9-40, et seq., Georgia's version of the Uniform Child Custody Jurisdiction Act (the "UCCJA") on several grounds, including the fact that Georgia was the children's home state and because the children and the modification action had significant connections with the state of Georgia. Subsequently, Wilson filed an action for contempt in Ohio. The Ohio court held Gouse in contempt of its order for filing the Georgia modification action and summarily concluded that it had exclusive jurisdiction to modify its custody decree under the UCCJA, the PKPA, and its 1988 order. The Chatham County Superior Court dismissed Gouse's modification action on the ground that the Ohio court had continuing jurisdiction to modify its custody order.

The Court of Appeals reversed, ruling under Georgia law that Georgia courts had jurisdiction to modify the Ohio child custody order and that Ohio's attempt to retain exclusive and continuing jurisdiction was invalid. The Court of Appeals did not consider the PKPA in determining that Georgia had jurisdiction because it believed the federal statute applied to interstate jurisdictional disputes only where a child had been kidnapped. On appeal, Wilson contends that the PKPA controls in every action where there is an interstate custody dispute and, under its express jurisdictional rules, an originating [263 Ga. 889] court retains jurisdiction until the child and all parties no longer reside in the state. Gouse argues that the PKPA does not apply but even if it did, Georgia has jurisdiction because it is the children's home state and because the children have a significant connection with this state.

1. As a preliminary matter, we find the PKPA applies in all interstate child custody disputes. Before Congress enacted the PKPA, there was much confusion surrounding interstate custody disputes. The confusion resulted in conflicting custody orders among the states and provided an incentive to a parent to remove their child from one state and shop for a forum in another state likely to enter a different custody order. See Thompson v. Thompson, 484 U.S. 174, 181, 108 S.Ct. 513, 517, 98 L.Ed.2d 512 (1988). In an attempt to promulgate uniform rules for determining child custody jurisdiction, states adopted the UCCJA which included specific provisions giving exclusive and continuing jurisdiction to the state issuing the initial decree so long as that state continued to satisfy certain jurisdictional requirements. As applied, however, the UCCJA was an imperfect remedy because courts differed in their interpretation of the UCCJA's jurisdictional requirements and many states that adopted the UCCJA made substantive modifications which diluted the uniformity the UCCJA was intended to promote.

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Recognizing the failure of the UCCJA, Congress enacted the PKPA to put in place a uniform federal statute which provides clear guidelines for determining jurisdiction over interstate child custody disputes. Thompson, 484 U.S. at 181, 108 S.Ct. at 517. In essence, the PKPA imposes on states a federal duty, under standards derived from the UCCJA, to give full faith and credit to a custody decree of a sister state. Id.

Based on this historical analysis, and in the complete absence of any language restricting the applicability of the PKPA to circumstances in which a child is kidnapped, we hold that the PKPA was intended not only to apply where a child was abducted by a parent and removed to another state but to remedy what was widely considered to be the inapplicability of the full faith and credit statute to child custody orders. ² Thompson, 484 U.S. at 181, 108 S.Ct. at 517 (the "context of the PKPA therefore suggests that the principal problem Congress was seeking to remedy was the inapplicability of full faith and credit requirements to custody determinations."); see Pub.L. 96-611, Sec. 7(c) [263 Ga. 890] setting forth six independent declarations of the purpose of the PKPA. We therefore disapprove of that portion of the Court of Appeals' opinion that is inconsistent with our holding in this division.

2. Having determined that the PKPA provides the jurisdictional criteria to be followed in all interstate child custody disputes, we turn to the statute itself. Section 1738A(f) limits when a state, which would otherwise have jurisdiction over a child custody dispute, may modify the custody order of another state:

(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if--

(1) it has jurisdiction to make such a child custody determination; and

(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

Subsection (d) provides for continuing jurisdiction of a court of a state which has made a child custody determination consistent with the provisions of the PKPA as long as the court continues to have jurisdiction over the matter under its own state's laws and such state remains the residence of the child or of any contestant. ³

There is no question here that the Ohio court had proper jurisdiction when it entered the initial custody decree and that it has refused to voluntarily...