Dillon v. MedellinDillon v. Medellin
In this case, a woman who has lived in Louisiana with her child for over two years petitioned the district court in Thibodaux, Louisiana on September 5,1980 to enforce a custody decree in her favor rendered in the State of Texas on May 26, 1977. She sought enforcement under the Uniform Child Custody Jurisdiction Act,
When the Texas-residing father filed a declinatory exception of lack of subject matter jurisdiction in the Louisiana proceeding for the reason that the Harris County, Texas court had modified its original decree (i.e., the one the mother was seeking to enforce) with an emergency ex parte order dated July 8, 1980, appointing him temporary managing conservator of the minor child pending the outcome of his suit to change the custody decrеe, the Louisiana court sustained the exception and dismissed the mother‘s suit. She appealed to the First Circuit Court of Appeal which affirmed the lower court‘s dismissal. Dillon v. Medellin, 402 So.2d 149 (La.App. 1st Cir. 1981).
We granted writs on the wife‘s application to examine her substantial contention that Louisiana has jurisdiction over her action under the Uniform Child Custody Jurisdiction Act,
The pertinent facts are as follow: Patricia Dillon (formerly Medellin) was divorced from her husband in Harris County, Texas on May 26, 1977. She received custody of their minor child, Margarita Lourdes Medellin. Under the terms of the divorce decree, the father was given visitation privileges on alternating weekends and holidays, and for thirty days (30) during the summer months. In April, 1978, the mother and child moved to Louisiana, after which the mother remarried.
On July 8, 1980, just before the expiration of a thirty day child visitation period, the Texas father petitioned the Harris County, Texas court to modify the original custody decree, alleging that the court had continuing jurisdiction over the matter, and that the child‘s circumstances had changed so materially that retention of custody with the mother would be injurious to the child‘s welfare. The father attached to the motion an affidavit stating, in effect, that his four year old daughter had revealed to him during the visitation period in Texas that her mother and stepfather in the Thibodaux home were smoking marijuana daily, and that the stepfather had played sexual “games” with the child.
The mother filed a special appearance challenging the jurisdiction of the Texas court since she and her daughter had been Louisiana residents for more than six months prior to the filing of the modification petition by the Texas father. The father, before the special appearance motion hearing had been conducted, filed an original petition arguing as an alternative to his modification petition based on continuing jurisdiction, that the Texas court had original jurisdiction, especially under
On September 5, 1980, the mother petitioned the district court in Lafourche Parish to enforce the 1977 Texas custody judgment and to order that the child be returned to Louisiana and that the father‘s visitation rights be terminated. On the rule to show cause, the district court sustained the father‘s declinatory exception to the Louisiana court‘s jurisdiction and dismissed the casе on October 10,1980. The dismissal, for lack of jurisdiction, was appealed by the mother to the Louisiana Fourth Circuit Court of Appeal.
In the meantime, in Texas, by an order dated October 21, 1980, the Harris County district court denied the mother‘s challenge to its jurisdiction and named the father temporary managing conservator under its original jurisdiction. Thereafter a default judgment was rendered on February 25, 1981 against the mother, whо had made no general appearance and whose pleadings were stricken upon her failure to post a $2500.00 cost bond. In the default judgment, the father was given permanent custody and the mother was ordered to pay $10.00 per month as child support. From that order of the Harris County District Court, the mother appealed to the Texas Court of Civil Appeals. While the mother‘s appeal wаs pending in the Texas appellate court, the Fourth Circuit Court of Appeal of Louisiana on June 29, 1981 affirmed the Lafourche Parish district court‘s dismissal of the mother‘s Louisiana case “because there is presently pending in the Texas court, under its original jurisdiction, a proceeding concerning the custody of Margarita.” From that judgment, the plaintiff mother sought a writ in this Court. We granted her writ on September 28, 1981.
Then, on October 29, 1981, before the case was argued in this Court, the Texas Court of Civil Appeals reversed the Harris County district court‘s resolution of the jurisdiction question and dismissed the father‘s Texas case on due process and jurisdictional grounds. The Texas Court of Civil Appeals found that “[i]t would ... be inconvenient, if not impossible, to effectively develop those issues [the welfare and best interests of the child] in the Texas courts, and the mother would not be afforded due process of law if she is required to defend this action in the State of Texas.” Dillon v. Medellin, (Tex.Civ.App. 1st Dist. 1981), No. # 18054.
A copy of the opinion of the Texas Court of Civil Appeals was attached to the brief filed in this Court by relator. Counsel for the respondent was afforded an opportunity to respond to that submission and has not done so.1 Independent inquiry by this
We are tempted to resolve this litigation simply by relying upon the opinion of the Texas Court of Civil Appeals and upon the information we have obtained from the Texas court system about the status of the Texas litigation. That information would emasculate the very foundation of the decisions we review, (the dismissal of the wife‘s Louisiana lawsuit by the district court and Court of Appeal), that is, the pendency in Texas of a child custody award deemed by the lower courts to be preclusive of their assuming jurisdiction under
Nonetheless, because there may be some procedural problem about taking cognizance of information we have secured concerning the Texas proceedings subsequent to the district court judgment, we choose instead to decidе this case by examining the legal issues which prompted our granting relator‘s writ.
When we granted this writ we were interested in scrutinizing the Uniform Child Custody Jurisdiction Act as adopted in Louisiana (
We will therefore consider the case simply on the basis of the record as it existed when the case was presented in the district court and the Court of Appeal. In that posture there is simply an outstanding Texas modification decree of February 25, 1981 granting custody to the Texas father under the Texas court‘s original jurisdiction because “the child is physically present in [the] state and there is a serious immediate question concerning the welfare of the child.”
The question presented therefore is whether the Texas district court had jurisdiction in this instance to award custody to the father. Another way of looking at the legal question is this: if the roles of the Texas and Louisiana courts were reversed, and the father was the Louisiana resident asking our courts to grant him custody of his child, a Texas domicilary, would a Louisiana court be the proper forum for resolving
We conclude for the reasons which follow that the Louisiana court has jurisdiction in this matter. Coincidentally, this same result was reached by the Texas Court of Appeals, although for different reasons.
Louisiana has adopted the Uniform Child Custody Jurisdiction Act. (Act. No. 513 § 1, effective Oct. 1,1978). In the Commissioners’ Prefatory Note to this Act as it appears in 9 Uniform Laws Annotated, Master Edition, at 111, it is noted:
There is growing public concern over the fact that thousands of children are shifted from state to state and from one family to another every year while their parents ... battled over their custody in the courts of several states ...
When a decree has been rendered awarding custody to one of the parties,... those who lose a court battle over custody are often unwilling to accept the judgment of the court. They will remove the child in an unguarded moment or fail to return him after a visit and will seek their luck in the court of a distant state where they hope to find—and often do find—a more sympathetic ear for their plea for custody.
The Uniform Child Custody Jurisdiction Act was designed to solve the precise problem presented in this case: a Louisiana domiciled mother is asked to answer charges brought in a Texas lawsuit initiаted by the Texas father in a Texas district court before her child can be returned to Louisiana at the end of the court ordered thirty day Texas visitation period, where the Texas father has heard during the visit some disconcerting tales of incidents allegedly occurring in Louisiana in the home of the mother and stepfather. Clearly the proper court for deciding the custody ramifications of incidents tаking place in a Louisiana home, involving Louisiana domiciliaries, is a Louisiana court.
Louisiana‘s jurisdiction is clearly set forth in its Uniform Child Custody Jurisdiction Act,
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 bеen 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, protectiоn, 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 has 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 aсcordance 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 аlone 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. (Emphasis provided.)
Under
The only statutory provision which might vest jurisdiction in an asylum state is
retains and reaffirms parens patriae jurisdiction, usually exercised by a juvenile court, which a state must assume when a child is in a situation requiring immediate protection. This jurisdiction exists when a child has been abandoned and in emergency cases of child neglect. Presence of the child in the state is the only prerequisite. This extraordinary jurisdiction is reserved for extraordinary circumstances. See Application of Lang, 9 App.Div.2d 401, 193 N.Y.S.2d 763 (1959). When there is child neglect without emergency or abandonment, jurisdiction cannot be based on this paragraph. (Emphasis provided.)
We construe this emergency provision as permitting a state, otherwise without jurisdiction over a visiting child or her non-resident mother, to take jurisdiction in a custody matter only if the immediate needs of the child require it because the child has been abandoned or otherwise mistreated, abused, or neglected. The statute contemplates that conditions in the asylum state and the immediacy of thosе conditions will provide both the necessity and the justification for the asylum state‘s assuming jurisdiction over a custody matter not otherwise within its province. Such a situation is not presented by Dr. Medellin‘s petition to the Texas court. We do not construe
We conclude that under the Uniform Child Custody Jurisdiction Act, its Louisiana provision
When the courts of another state do not meet the jurisdictional requirements of Louisiana law in custody matters, the Louisiana courts need not defer to those courts. As relates to simultaneous proceedings in other states,
Therefore whether we construe the Texas proceedings as existing simultaneously with the proceedings in the Louisiana courts (
On the other hand under
Decree
The judgments of the Lafourche Parish District Court and the Fourth Circuit Court of Appeal sustaining defendant/respondent‘s declinatory exception of lack of jurisdiction over the subject matter are reversed. The exception is overruled. Dismissal of Mrs. Dillon‘s petition is reversed. The case is remanded to the district court for further proceedings.
REVERSED AND REMANDED.