*1 lax respects, they are in these critical and usually replaced.
should be are Our
republic has survived this fashion
over two centuries. previous view of our rulings,
unnecessary question us resolve validity
raised as to defendants attorney appeal when district
general join did not therein. cause
Accordingly, this is affirmed and
remanded. are Costs taxes
plaintiffs.
AFFIRMED AND REMANDED.
TODD, P.J., LEWIS, J., concur. BOYD, III, Petitioner-Appellee,
T.B.
Melody BOYD, Victoria
Respondent-Appellant.
Court of Section, Nashville.
Western
Feb. 1983.
Rehearing Denied March Appeal Denied
Permission June
Supreme Court
ther, III, Boyd, T.B. continued reside County, Tennessee. Davidson present While the child was in the state visitation, of Tennessee for summer fa- the ther filed a for change 18, August on 1981. The mother filed and motion dismiss raised the trial tional issue in the court. The motion was overruled the and trial court found it had of the matter. evidentiary hearing Thereafter full was conducted and the trial an judge entered Nashville, Jones, respondent- Sandra for order awarding custody of the minor child appellant. father, III Boyd, (here- natural T.B. Woods, Woods, Bryan, Jinx S. Woods & inafter referred to as the appellee). Watson, Nashville, for petitioner-appellee. (hereinafter ap- mother referred to as the pellant) brought appeal challenging HIGHERS, Judge. jurisdiction of the Tennessee court. is a custody This case involving appli- II. cability Act, Custody the Child Custody Tennessee Child enact- seq., 36-1301 et in which the parties 1979, ed in similar to the Uniform Child ceived decree of divorce and an award ap- Jurisdiction Act which was but wherein the cus- proved by the National Conference of Com- parent, mother, todial and the child missioners on Uniform Law and State have been residents of the State which has more than half adopted by York since the divorce in 1976. purpose states. The of these acts is to discourage abduction other and unilat- I. eral removals of children from one state to parties were divorced de- final (the another related act federal at U.S.C. 4,1976, cree entered on February David- 1738A is the “Parental styled Kidnapping § son County, By Tennessee. its terms the 1980”), give Prevention Act and to decree awarded the divorce to Vic- Melody upon states reasonable basis which to toria Boyd, mother, the natural and also determine which state has provided deciding custody that “the exclusive custody disputes and when the contest- control of the ants namely, Theophillus are residents of different states. B. See IV, be, Boyd, T.C.A. 36-1301. same is hereby, mother, creed to the right with the act The federal became effective on De- privilege of the father to see visit said Through cember 1980.1 federal pre- minor child at reasonable times and places, emption conflicting it takes over precedence and the father shall temporary custo- U.S.Const., state laws. Art. 2. The dy a period of two each months sum- states, act part: in relevant mer.” by a court of a is consistent with State At decree, the time of the some provisions if— thereto, time prior the mother was living court has state of New such York. After the decree State; law such granted she and the parties child of the continued to live there and to make it the following one conditions is state of their residence. The fa- natural met: act, Section,
1. For a Appeals, discussion of the see federal Vonin filed Middle October Voninski, unreported opinion ski v. long- another (A) court of State home state State has declined to jurisdiction, commence- date er ment of the had been exercise such the child’s home within six such determination. com- months before the date of the the state in this ease is whether The issue *3 proceeding and mencement original decree was is child absent from such because State custody proceed- granted, jurisdiction has con- by his removal or retention a and child have ings in which mother reasons, a con- testant or for other and for a period been York residents State; live
testant continues to in such several years. it other (B) (i) appears that no State federal act To answer the question, jurisdiction sub-para- under would have provides a checklist conditions (ii) it in the best graph (A), and is points first to the law of the individual that a court of interest of the child initially It must be determined states. jurisdiction because such State assume jurisdiction has whether Tennessee (I) parents, his or the the child and its own law. contestant, and child at least one have significant connection with such forth in statute set jurisdictional physical pres- State other than mere T.C.A. 36-1303: State, (II) ence such and there is compe- which is A court of this state (a) evi- in such substantial available State has child matters tent to decide present or concerning dence the child’s jurisdiction to make child care, protection, training, and future initial or modification de- termination personal relationships; if: cree (C) present is physically child state of (1) (A) is the home This state such State and child has the child at the time of commencement abandoned, in an (ii) necessary or it (B) or been the protect the child because emergency six months state within child’s home subjected to or threatened he has been proceed- before commencement abuse; or with mistreatment from this ing the child absent and (D) appears no other State would removal or state because of child’s jurisdiction sub-paragraph claiming custody by a person retention (B), (C), (E), or or (A), another State reasons, parent or or for other to exercise on has declined acting as continues person that the whose ground State state; or live is the more appropri- diction in issue jur- has that no state (2)(A) appears It ate forum to determine (a)2, or each under subsection isdiction inter- in the best under subsection state with court assume of the child est .that to exercise (a) declined jurisdiction; or is the ground on the (E) continuing jurisdic- the court has forum determine appropriate more pursuant to subsection child; section ... one con- and at least (B) The child (f) court of a significant connection have a testant of the same state; with State, a court another if— in this state available (C) There is concerning the evidence such a substantial jurisdiction to make it has care, protec- determination; or future present child’s nonsensical; meaning “sub- obviously it should read (a)” is to “subsection The reference (1).” typographical or error which renders clerical tion, training personal states, relation- and serve the overall interest of best ships; and 36-1301, the child. See T.C.A. 28 U.S.C.A. (Congressional 1738A
(D)
Findings
It
and Dec-
is in the best interest of
Purposes
laration of
Kidnap-
child that a court of this state assume
Parental
jurisdiction;
ping
or
Prevention Act of 1980), also Annota-
tion,
jurisdiction.
1. This state is the home state of the
(b) Except under
subsection
child at the time of the commencement of
section, physical presence in this state of
the
or
proceeding
had been the child’s home
child,
or of the
(1)
child
one
of
state within six months before commence-
contestants,
is not alone sufficient to
ment of
the proceeding.
T.C.A. 36-
confer
on a court of this state
1303(a)(1). Neither of these conditions is
to make a child custody determination.
applicable in this case. Tennessee is not the
(c) Physical presence
while
home
state of
child as defined in T.C.A.
desirable, is
a prerequisite
36-1302(5), nor had it been the home state
to
diction
determine his or her custody.
within six months preceeding this action.
(d) Jurisdiction shall not be exercised to
It is undisputed that
the child had been a
an
existing custody
except
decree
resident
the state
New York since at
in accordance with 36-1315.
only
least 1976 and that he was
temporarily
It is clear from
foregoing
that both
in
privileges
this state for those visitation
the Tennessee act and the federal act show
accorded to the
in the original de-
preference for “home
cree of divorce.
determining the
of a
custody
child.3 There
appears
It
no state has
or
are sound reasons for
predilection.
this
It
that each state with
has de-
designed
(1) promote
stability in the
jurisdiction,
clined to exercise
and that the
home environment of children notwith-
(B), (C),
conditions
as set forth
apply
standing
mobility
parents,
(2)
dis-
(D)
36-1308(a)(2).
of T.C.A.
The state of
courage snatching
by
children
one parent
substantially adopted
York has also
state,
from another and fleeing to another
Uniform Child
Jurisdiction
(3) allow free exercise
privileg-
of visitation
1,1978.
September
effective
See N.Y.Dom.
byes
parent
non-eustodial
in a different
Rel.Law,
75-c
provides
the act
arousing
§
without
fear
suspicion
§
by the
home state “means the state in which
parent
custodial
that a
bat-
custody
state,
(4)
tle would ensue in
child at the time of the commencement
the distant
prevent
proceeding,
shopping by
custody
forum
has resided with
contestants in
custody disputes, (5)
parents,
person acting
his
a
or a
parent,
restrict
as
proceedings
jurisdictions
parent,
those
a
six
evidence of
least
consecutive
Clearly,
child’s circumstances will tend
be
months.”
under
definition
available,
most readily
(6)
judicial
avoid
also under
definition in the Tennessee
conflicts, promote
act,
cooperation between
the “home state”
the child in
any
per-
3. “Home state” means
the state
child lived
birth with
immediately preceding
child
temporary
the time involved
sons
Periods of
absence
mentioned.
parent,
parents,
lived with his or her
or
persons
are counted as
the named
person acting
parent,
as
for at
least six
period.
part
the six
months or other
months,
consecutive
and in the case of a
36-1302(5).
less than six
months old the state in which
required
in New York could then
parent
case is the state of New York. The New
provides:
York
travel
law further
all of her resources to
to marshal
here,
witnesses,
de-
produce
and otherwise
1. A
of this state which
compe-
return
claim to
order to
tent
to decide child
matters has
fend her
following a
to make a child
to his home state
the child
was,
by
pre-
termination
initial or modification de-
summer visitation.
period of
cree
when:
situation which the uni-
cisely
type
preclude.
form
was intended
act
(a)
this state
home state
child at the time of commencement of the
Further,
requirement
or
been the
a state must have
federal act that
child's home
six
state within
months be-
to make a
its own law in order
fore
proceeding
commencement
28 U.S.C.
determination.
and the child
absent from this state
appli-
1738A(c)(l).
As we
observed
because of his removal
retention
Tennessee law to the facts of this
cation of
person claiming
his
or for other
subject-matter
not have
this state does
reasons,
as
person acting
and a
of custody.
enter a decree
jurisdiction to
parent continues to live
this state.
N.Y.Dom.Rel.Law,
75-d.
IV.
Tennessee, therefore,
does not acquire
the Cir
contends
by virtue of the fact that no other
diction
*5
has
in
continu
County
cuit Court Davidson
jurisdiction
it manifest
state has
because
is
under T.C.A. 36-828
ing jurisdiction
York,
law,
its
jurisdic-
that New
has
or al
“jurisdiction modify
that
to
provides
tion
the matter of
to hear and determine
in the exclusive
ter such decree shall remain
is
custody.
Jurisdiction
conferred
such de
the court which issued
control of
if
is the home
New York act
that state
of the
reading
is
cree.” It
evident
state or if
the home
of the
it
state
speaking
jurisdic
that
is
entire statute
child within
commence-
six months before
this state.
between courts within
tion as
is
proceeding.
ment of the
There
Kane, 547
See,
Kane v.
S.W.2d
example,
for
suggest
no evidence to
that New York had
jurisdictional
(Tenn.1977).
It is not a
to
or that the
jurisdiction
declined
exercise
of different
between the courts
statute as
matter has ever been raised in the courts
Hines,
220 Tenn.
Hines v.
states.
that state.
(1965).
S.W.2d
state
to this state be-
Another
defers
is
forum.
appropriate
cause it
the more
contention of the
further
36-1303(a)(3).
T.C.A.
There has been
the Tennes
jurisdiction
that
in
deferral made
36-1303,
such determination or
Child
see
case.
would lead to
argument
This
not exclusive.
two states could
that
the conclusion
jurisdiction
To
has
in
hold that Tennessee
custody disputes.
in
concurrent
very
nullify
this instance would be to
reject
contention.
We
jurisdictional statute
purposes for which the
exists,
in the
of New
both here and
state
jurisdiction CRAWFORD, JJ., concur. NEARN In the case Hegler Hegler, 383 So.2d 1134 (Pla.App.1980), where the parties were
divorced Florida and the mother who ON PETITION TO REHEAR OPINION received of two minor children sub- filed sequently moved Maryland, to the state of rehear, principally upon proposi- based the Florida Court said: Kidnapping Preven- that the Parental The Uniform Act is designed give (PKPA) continuing tion Act confers one state to determine origi- diction in state that rendered the custody, exceptional unless circumstances long nal as that state remains decree so exist ... contestants, citing residence of one of the general rule is that the “home noted, 1738A(d). It should be U.S.C. § state” of the child should be the however, contains two tion to hear and determine mat- quirements continuing jurisdiction: ters ... *6 (d) a court of a State The of The fact that original decree was custody made a child determi- which has entered in Florida does not prevent loss provisions of consistently nation with if the children have resided long continues as as the elsewhere for 6 months. (c)(1) this section contin- quirement The also avers the ap that ues to and such State remains be met pellant has submitted to the juris or of any residence of the child contest- diction of Circuit Court in Davidson ant. County because she has appeared before that court with reference to other matters long Jurisdiction continues “as as” the re- associated with this case. Jurisdiction of quirement (c)(1) met “continues to be however, the subject-matter, is not waived ...” (c)(1) provides: Section by appearance, and any raised stage proceedings. v. Mayhew May by a of a consistent with hew, 459, 52 Tenn.App. 376 324 S.W.2d provisions of this section if—only (1963). such court has the law of such State.
V. Tennessee must continue have was a hearing There conducted law, under its own in order to maintain merits of the issue after trial status described in section court concluded that PKPA. have original We concluded in the this matter. The parties have cer- raised opinion questions tain for reasons stated concerning what would be in therein, best interest of the view that Tennessee has ceased to child. 738 We adhere its own law. opinion.1
to that A. and G.C. Hutchi Ruth HUTCHISON son, Plaintiffs-Appellants,
The appellee further insists that jurisdiction pur Tennessee should exercise provisions suant emergency CORPORATION, ARO PKPA. 28 1738A(c)(2)(C). U.S.C. In or Defendant-Appellee. provisions der to invoke these necessary it is that “subjected show the child has been Court of to or threatened with mistreatment Section, at Nashville. Western abuse.” This Court reviews deter March 1983.* minations de novo pre without the usual sumption correctness, giving paramount
consideration to the best interest of the Smith,
child. 188 Smith v. Tenn. Bevins, (1949), Bevins
S.W.2d
Tenn.App. (1964). We S.W.2d
did find made out a case application emergency relief. appellee has not directed facts
our attention which were not considered in original opinion. appellee also contends that
child has now resided in Tennessee for a period
sufficient of time confer jurisdic
tion even if its original this state had lost
jurisdiction in the case. It is clear
period during which a child has resided in pending
this state resolution of a
dispute may reckoning not be considered in necessary time to establish “home jurisdiction.2 ruling origi- effect our is that the
nal award of final decree of re-instated, and the
divorce
rehearing respectfully denied. Costs adjudged to rehear are
the appellee. Columbia, plaintiffs- CRAWFORD, Colley,
NEARN, P.J.,
J.,
Jerry
con-
C.
appellants.
cur.
Bahr,
“com
specifically
sets
v.
Appellee
36-1303
has cited Bohr
N.Y.S.2d
proceeding”
v. Bar-
(Fam.Ct.1981)
as the control
and S. Frederick P.
mencement
P.,
determining jurisdiction.
He
bara
ling
454 N.Y.S.2d
Cf.
115 Misc.2d
time for
apparently
(Fam.Ct.1982),
Hegier,
(Fla.App.1980).
trial court
gler
which are