Gordon Allyn COPPEDGE and Anna Gloria Coppedge, Petitioners, v. The Honorable Raymond M. HARDING, Fourth Judicial District Judge, and James Henry Hyde and Gail Ann Coppedge Hyde, Respondents.
No. 20862.
Supreme Court of Utah.
Nov. 21, 1985.
710 P.2d 1121
David L. Wilkinson, Atty. Gen., Salt Lake City, Lynn D. Wardle, Provo, Jay W. Fitt, Orem, for respondents.
ORDER
PER CURIAM.
On March 19, 1985, Gordon and Anna Coppedge, petitioners in this action, requested that the circuit court of Washington County, Oregon, make them guardians of Jason Allyn Hyde, their ten-year-old grandson who was residing with them in Oregon. In re Jason Allyn Hyde, No. J 13-259 (Circuit Court of Washington County, Oregon). The Oregon court granted the guardianship petition on July 1, 1985, and appointed the Coppedges as Jason‘s guardians until his twenty-first birthday, subject to review in one year from the date of the order.
Jason‘s parents, James and Gail Hyde, respondents herein, are residents of Utah. On advice of counsel, who informed them that the Oregon court had no jurisdiction, the Hydes did not appear in the Oregon action, although they were notified of the pendency of the guardianship petition. On May 9, 1985, while the guardianship petition was pending, the Hydes instituted an
The Coppedges moved to dismiss the Utah action on June 11, 1985. Before the Utah court had ruled on the Coppedges’ motion, the Hydes moved on August 13, 1985, for a temporary restraining order directing the Coppedges to return custody of Jason to the Hydes. The Utah court granted the temporary restraining order on August 13, 1985, and on August 23rd denied the Coppedges’ motion to dismiss. On August 29, 1985, the Coppedges filed a petition with this Court for a writ of mandamus, asking that we direct the district court to dismiss the action filed by the Hydes, dissolve the temporary restraining order, and order the return of Jason to Oregon.
We have heard argument and have considered the extensive filings of the parties and conclude as follows: that the Oregon court had jurisdiction over Jason Hyde under section 3 of the Uniform Child Custody Jurisdiction Act, which has been enacted in Oregon as
Based on the foregoing, the district court is ordered to stay the Utah action to the extent that it seeks to determine custody under the Uniform Act. The district court is further ordered to communicate with the Oregon court, as required by
The need for prompt action in this matter requires the immediate issuance of this order. Opinions will follow.
This case presents the question of whether married natural parents who have never been declared unfit parents, who have not abandoned their child, and who sent their child out of state voluntarily and temporarily to live with its grandparents for a school year can either be deprived of the custody of their child by a court of the other state or forced to litigate their custody rights in that other state‘s court.
This matter is before this Court on a petition for a writ of mandamus. The petition requests this Court to order the Fourth District Court of Utah County to dismiss an action in which the natural parents living in Utah seek to reestablish their custodial rights over their son, Jason Allyn Hyde, a minor. Jason was visiting with his grandparents in Oregon with his parents’ consent. During his visit, the grandparents filed a petition in an Oregon court for appointment as Jason‘s guardians. The parents did not answer or appear in the Oregon action. The Oregon court in a default judgment awarded the grandparents custody of Jason and appointed them his guardians until he reached 21 years or the court ordered otherwise. It thereby, for practical purposes, terminated the parental rights of Jason‘s parents on what I believe is a usurpation of power and a total absence of a factual foundation that the parents are unfit or have neglected or abandoned their child. See In re J.P., Utah, 648 P.2d 1364 (1982).
The majority in effect holds that an Oregon court can terminate the parental rights of Jason‘s natural parents and grant custodial rights to the boy‘s grandparents. I dissent from this Court‘s order because (1) under properly applied constitutional standards, the Oregon court has no jurisdiction, and (2) the Oregon court had no statutory jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA).
I.
In August, 1983, Jason Hyde, age nine, by mutual arrangement between his grandparents, the Coppedges, and his parents, the Hydes, went to Oregon to live with the grandparents during the 1983-84 school year. To facilitate this arrangement, his parents executed a revocable power of attorney to enable the grandparents to fully care for Jason while he was staying with them.
At the end of the school year, Jason returned to Utah for the summer. Under arrangements similar to the previous year, he returned to Oregon in August, 1984. In September, 1984, the parents learned that the grandparents did not intend to return Jason to Utah at the end of the 1984-85 school year. They demanded that the grandparents return Jason to Utah immediately. The grandparents refused, but eventually they reaffirmed their agreement to return Jason to his parents at the end of the school year, so the parents agreed to allow Jason to remain in Oregon until then.
In early March, 1985, the grandparents informed the parents that Jason would not be returned at the end of the school year. The parents again demanded Jason‘s return, and the grandparents again refused. On March 19, 1985, the grandparents filed a petition for appointment as Jason‘s guardians in the Juvenile Department of the Oregon Circuit Court for Washington County. In response to the grandparents’ consistent refusal to agree to relinquish Jason at the end of the school year, his parents, on May 9, 1985, commenced an action in Utah‘s Fourth District Court seeking to compel the grandparents to return Jason.1 Meanwhile, the hearing on the grandparents’ Oregon petition was set for
When the grandparents continued to refuse to allow Jason to return to his family, his parents, in August, 1985, obtained a ten-day temporary restraining order in a Utah court directing the grandparents to return Jason to Utah. The Utah district court conducted a hearing on a motion brought by the grandparents to dismiss the parents’ action under the Utah version of the UCCJA,
Finally, because the Oregon court had lacked jurisdiction in the Oregon proceeding, Judge Harding concluded that the Oregon court‘s custody order was invalid. Therefore, there was no need for a temporary restraining order (TRO) or an injunction to keep Jason in Utah. Accordingly, in a minute entry dated August 28, 1985, the Utah court denied the parents’ motion to continue the TRO and confirmed their right to the custody of Jason by stating that it would not violate any order of the Utah court for his parents to keep Jason in Utah.
II.
I submit that the Court‘s order is founded on moot issues. First, the Court‘s writ of mandamus purports to compel the Utah district court not to address the right of custody of Jason Hyde even though the trial court has already ruled that it need not and will not proceed further with that issue. The order states, “[T]he district court is ordered to stay the Utah action to the extent that it seeks to determine custody under the Uniform Act.” But the district court has already determined that it would not issue a custody decree because the Oregon court acted without jurisdiction and custody remains in the parents by natural right. This Court‘s order is moot because it directs the district court to refrain from doing that which it has already ruled it will not, and need not, do. See In re J.P., supra.
Second, the writ also directs the trial court to perform a useless and meaningless act, i.e., to contact the Oregon trial court. Specifically, the trial court is ordered
to communicate with the Oregon court, as required by
section 78-45c-6(3) of the Code , to determine the propriety of further proceedings in Oregon. In the event that the Oregon court stays its proceedings after such communication, then the Utah court may proceed to adjudicate the custody matter.
The problem with that order is that the Oregon court has already issued a final order and its proceedings are complete. While it is true that the court retains jurisdiction to modify the custody order, a communication to that court will be only a futile and meaningless gesture. That court surely knew that the natural parents lived in Utah and had lived here with Jason for a number of years. When that court purported to cut off the Coppedges’ constitutionally protected parental rights in the face of Oregon‘s tenuous relationship with Jason and its complete lack of “minimum contacts” with his parents, it must have done so on the basis of known facts that the majority of this Court now directs the Utah district court to bring to the attention of the Oregon court. A writ of mandamus ought not to issue to compel a futile gesture.
III.
The grandparents initiated the Oregon proceeding and attempted to have the Utah action dismissed under the auspices of the UCCJA, which has been adopted by both states. Whatever the Act‘s statutory grant of jurisdiction, that jurisdiction must comport with constitutional notions of due process.
In Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), the United States Supreme Court held that with certain exceptions, jurisdiction for all state court proceedings would be governed by the minimum contacts-due process standards set forth in International Shoe Co. v. Washington, 326 U.S. 310, 317, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. Shaffer, supra, 433 U.S. at 212, 97 S.Ct. at 2583. One exception was set forth in footnote 30. The Shaffer Court stated: “We do not suggest that jurisdictional doctrines other than those discussed in text, such as the particularized rules governing adjudications of status, are inconsistent with the standard of fairness.” Id. at 208 n. 30, 97 S.Ct. at 2582, n. 30.
Child custody determinations have generally been acknowledged to be “adjudications of status.” See, e.g.,
Child custody disputes portend serious modifications not only of the protected child‘s interests, but also of at least one parent‘s constitutionally protected parental right.
There is a genuine and long-standing national consensus that legal rules applicable in custody cases should serve the interests of the children more than the interests of the parents. [We take] no exception to that principle. This lack of emphasis on the defendant‘s contacts with the forum state may nevertheless violate due process. The rules of jurisdiction governing child custody cases are “particularized,” but their compliance with due process depends upon whether the special nature of the status that is involved justifies the rules’ lack of defendant contacts requirements. The momentous consequences of a custody determination for both the child and the parents seem to indicate that the basis of a state‘s jurisdiction should ordinarily include significant forum-defendant contacts. Coombs, Interstate Child Custody: Jurisdiction, Recognition, and Enforcement, 66 Minn.L.Rev. 711, 749 (1982).
I take no exception to the principle of emphasizing the best interests of the child in custody proceedings when the custody battle is between the child‘s divorced parents. This situation, however, is not a divorce custody proceeding. In a divorce custody proceeding, it is implicit that there will be a modification of the child‘s relationship with at least one parent. In this case, however, the parents together assert their rights as parents; there is no dispute between them. No court has found them unfit, nor has the allegation even been made.
This dispute arose at the instigation of the grandparents, in opposition to Jason‘s natural parents, the Hydes, who were at all times relevant to this dispute married and living with their other children as a nuclear family unit. Jason‘s parents have indicated no intent to modify their relationship with Jason and had absolutely no basis for anticipating any deprivation of their parental rights by allowing Jason to reside with the
Jason‘s parents have a constitutionally protected right to raise him. E.g., Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982) (there is a “fundamental liberty interest of natural parents in the care, custody, and management of their child....“); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978) (U.S. Supreme Court has “recognized on numerous occasions that the relationship between parent and child is constitutionally protected.“); In re J.P., Utah, 648 P.2d 1364, 1372 (1982) (parents have constitutional right to raise own children); In re Castillo, Utah, 632 P.2d 855, 856 (1981) (parents have prior and fundamental right to rear their own children). If the Oregon court‘s order stands, it amounts to a direct infringement of Jason‘s parents’ constitutionally protected right to raise him. The Oregon court‘s order transfers custody to the grandparents until Jason is 21 years of age or until the Oregon court in its discretion decides to change the order. A more direct and fundamental violation of the parents’ constitutional rights is hardly imaginable. If the state of Oregon can do this to Jason‘s parents, no family unit is immune from the overwhelming power of the state to remove any child from any family on the ground that some other person can do a better job of parenting and provide a more nurturing environment for the child. If such a principle were once to be established, the fundamental relationship of parents to their children would forever be changed.
Since Jason‘s relationship with his parents is the subject of this dispute, and since Jason‘s parents are not even alleged to have been unfit or to have neglected or abandoned Jason, and since their domicile is here and they want custody of their son, I submit that only Utah has jurisdiction to deprive the parents of their custodial rights. See Shaffer, supra, 433 U.S. at 207-08, 97 S.Ct. at 2581.
On the basis of the evidence adduced in the ex parte hearing held in Oregon, one might conclude that Jason is better off in Oregon with his grandparents. Indeed, it appears that Jason was seriously upset by the custody battle that has erupted. However that may be, I believe that the parents have the right to be protected from having to fight a legal battle in Oregon to protect their parental rights to custody.
IV.
Utah state courts are not constitutionally required to give the child custody decisions of sister states full faith and credit. On the contrary, the United States Supreme Court has held that the states have carte blanche “to disregard the [custody] judgment [of another state], to qualify it, or to depart from it as does the State where it was rendered.” New York ex rel. Halvey v. Halvey, 330 U.S. 610, 615, 67 S.Ct. 903, 906, 91 L.Ed. 1133 (1947). In order to remedy this lack of full faith and credit, among other reasons, Utah and other states have enacted the UCCJA. See, e.g.,
The Utah trial court has constitutional jurisdiction because the natural parents and the child are both in Utah, and it has statutory jurisdiction under the UCCJA to decide the custody of the child in this case under
It is in the best interests 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[.]
Id. For nearly seven years, Utah has been the domicile of Jason‘s family. Jason‘s nuclear family, his permanent contacts, his
The practical objective of the grandparents’ Oregon proceeding was to terminate the parental rights of Jason‘s parents. American courts do not deprive parents of child custody unless there is abuse, neglect, or parental unfitness. In re J.P., Utah, 648 P.2d 1364 (1982). When the issue of custody is raised by a third person, the standard of protection is especially high. See id. at 1377. Virtually all evidence of the parents’ fitness, the history of their relationship with Jason, and their parenting abilities is in Utah. The parents have not been to Oregon for more than four years, and then were only there for a short vacation. Thus, the Utah court has jurisdiction under
Further, the Utah trial court had jurisdiction even though the grandparents’ custody proceeding was pending before an Oregon court.
(1) A court of this state shall not exercise its jurisdiction under this act [the Utah UCCJA] if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act....
(Emphasis added.) The Oregon court asserted jurisdiction over the grandparents’ Oregon petition for custody under the Oregon version of the UCCJA.
Neither party has referred this Court to a case in which a court has exercised jurisdiction under the UCCJA to deprive living married parents residing out of state of the custody of a child whom they sent to reside temporarily in the forum state. That the Oregon court acted without statutory jurisdiction is established by an analysis of section 3 of the Act. See
(1) 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:
(a) 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[.]
(Emphasis added.) The term “home state” is statutorily defined by the UCCJA.
the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as parent, for at least six consecutive months....
“Person acting as parent” means a person, other than a parent, who has physical custody of a child and who either has been awarded custody by a court or claims a right to custody.
(Emphasis added.) At the time the grandparents first went into court in Oregon, they satisfied neither of these definitions. By agreement, the parties had temporarily placed Jason in the grandparents’ home. The grandparents had not been awarded custody of the child by a court, and before going into court in Oregon, they had no claim of legal right to custody. Indeed, they had promised to return Jason to his parents and had reneged on that promise.
To qualify as a “person acting as parent,” it is not enough merely to assert that the person would be a suitable guardian and would like to be awarded custody of the child. A person must have a claim of legal right to custody of the child. In this case, the only people with claims of legal right to Jason‘s custody prior to the Oregon proceeding were Jason‘s parents.
There are situations in which no one has a prior claim of legal right to custody, and a court could justifiably assert jurisdiction for the protection of the child. For example, if both parents are killed in a car accident and the child survives, the forum state has a responsibility to provide for the child‘s welfare and safety, and as parens patriae could have at least a temporary claim of legal right to custody. However, “[i]t is fundamental to our jurisprudence that ‘the custody, care and nurture of the child reside first in the parents[.]‘” In re J.P., Utah, 648 P.2d 1364, 1372 (1982) (quoting Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944)). In this case, where the parents are alive, married, and have not relinquished custody or otherwise abandoned the child, it cannot be said that the grandparents could legitimately claim a “right” to custody in the Oregon court. See In re Marriage of Schwander, 79 Cal.App.3d 1013, 145 Cal.Rptr. 325 (1978). Bell v. Bell, Mo.App., 682 S.W.2d 892 (1984). Compare In re B.R.F., Mo.App., 669 S.W.2d 240 (1984) (when divorced mother who had been awarded custody of children died, grandmother who cared for children pending custody proceeding was a “person acting as parent“). Since, the grandparents did not satisfy the statutory definition of “person acting as parent,” Oregon is not Jason‘s “home state” as that term is defined by statute. Therefore, the Oregon court could not exercise jurisdiction under
For substantially the same reasons, the Oregon court could not exercise jurisdiction under
(b) 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[.]
(Emphasis added.) The UCCJA contains a statutory definition of “contestant.”
(1) “Contestant” means a person, including a parent, who claims a right to custody or visitation rights with respect to a child.
As stated above, the grandparents had “no claim of right” to custody. Neither did they have any “visitation rights with respect to the child” under the terms of the
Nor could the court have taken jurisdiction under the emergency jurisdiction provision of the UCCJA,
(c) 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 has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent[.]
The UCCJA Commissioners intended this provision to have a very limited scope. “[T]his extraordinary jurisdiction is reserved for extraordinary circumstances.... When there is child neglect without emergency or abandonment, jurisdiction cannot be based on this paragraph.” UCCJA § 3(a)(3), Commissioners Note. See Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody, and Excessive Modification, 65 Cal.L.Rev. 978, 992-95 (1977).
There was neither neglect nor emergency that justified the court‘s exercise of jurisdiction. Indeed, there is not even an allegation that Jason was abandoned or neglected. His parents had voluntarily, but temporarily, placed Jason in his grandparents’ care for the purpose of assisting Jason and alleviating a difficult family situation.
Additionally, “[i]f the alleged danger [which justifies emergency jurisdiction] exists in another state [i.e., Utah], the evidence must, under the Act, be exceedingly strong to warrant an interference with the jurisdiction of another state [i.e., Utah].” Bodenheimer, 65 Cal.L.Rev. at 994. What evidence there was did not justify the Oregon court‘s reliance on emergency jurisdiction. See In re Marriage of Schwander, 79 Cal.App.3d 1013, 145 Cal.Rptr. 325 (1978). Rather, that evidence should have been communicated to the forum where jurisdiction was appropriate, Utah. Bodenheimer, 65 Cal.L.Rev. at 994-95. While “there will be attempts to circumvent the Act by ‘shouting fire’ in every conceivable situation[,]” id. at 992, emergency jurisdiction exists under the statute only in very few cases, and this case is not one.
Finally, the Oregon court could not take jurisdiction under
(d)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), (b) or (c) of this subsection, 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, (ii) and it is in the best interest of the child that this court assume jurisdiction.
The determination that Oregon did not have jurisdiction to grant the grandparents custody is bolstered by
Even if jurisdiction in Oregon were proper under one of the above provisions of UCCJA section 3, the Oregon court still should have refused to exercise jurisdiction under the UCCJA‘s “child snatching” provi-
There are two types of “child snatching” under UCCJA section 8, wrongful removal of the child and wrongful retention of the child after a temporary visit. See
When a child is wrongfully retained in a foreign jurisdiction,
(2) Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without the consent of the person entitled to custody, ... has improperly retained the child after a visit or other temporary relinquishment of physical custody.
See Angell v. Sixth Judicial District Court, Utah, 656 P.2d 405 (1982). This case is directly analogous to the child snatching which this provision was designed to deal with. It differs only because the parents’ rights do not emanate from a court decree but from their status as parents. Because of this, the Oregon court should have refused to exercise jurisdiction under the “unclean hands” provision of the UCCJA. See
In sum, Utah courts, under
The majority directs the trial court to engage in the seemingly innocuous act of communicating with the state of Oregon pursuant to the provisions of
V.
Finally, the grandparents are here on a petition for a writ of mandamus. The Court should grant the grandparents’ writ only if the trial court abused its discretion. Angell v. Sixth Judicial District Ct., Utah, 656 P.2d 405, 407 (1982). See Ketchum Coal Co. v. District Ct., 48 Utah 342, 349, 159 P. 737 (1916). Mandamus is not available as a substitute for an appeal. Commercial Security Bank v. Phillips, Utah, 655 P.2d 678, 679 (1982). Generally, mandamus is inappropriate to remedy an erroneous assumption of jurisdiction by a lower court if the error is reviewable by the regular methods provided by statute. 52 Am.Jur.2d Mandamus § 312 (1970). Although this Court has been rather liberal in allowing mandamus to be used in child custody matters, it should not be used unless there is a clear abuse of discretion. No such case has been made here; indeed, I submit the trial court was entirely correct in what it did.
HOWE, J., concurs in the dissenting opinion of STEWART, J.