*1 necessary to the court’s by nor divorce cannot successful-
judgment, the defendant
ly argue preclusion thereunder. issue Further,
The facts are controverted. interpre- might minds differ
reasonable facts. facts before us
tation light viewed in the most favorable to
when him trial. plaintiff entitle to a We opin- the Court
therefore vacate
ion, granting reverse the trial court’s order defendant,
summary judgment proceedings.
remand the matter for further
OPALA, V.C.J., LAVENDER,
DOOLIN, ALMA WILSON and
KAUGER, JJ., concur. C.J.,
HARGRAVE, and HODGES and
SIMMS, JJ., dissent. Petitioner,
G.S., B., formerly EWING, Judge of the
Honorable Noah County,
District Court of McClain 21st District, C.B., Respon
Judicial
dents.
No. 74261.
Supreme Court Oklahoma.
Jan.
KAUGER, Justice. 1) presented The two issues are: whether court, having rendered the an Oklahoma decree, original divorce modify custody if the non-custodial Oklahoma, is not resides but Oklahoma the mean- the child’s “home state” within 1604;1 2) if the O.S.1981 § cause, hearing trial court was correct jurisdic- should it have refused to exercise Oklahoma is an inconvenient because 1) forum. We find that: an Oklahoma court which renders a divorce decree re- continuing jurisdiction modify cus- tains tody pursuant to 10 O.S.1981 16162 maintained, significant parental contact is Oklahoma; and if one resides 2) exercising the trial court was correct in the children have a close connection with and be- evidence needed to deter- cause substantial within the mine the issue located state. Oklahoma is not an inconvenient argued When this cause was to the Court petitioner/moth- on November attorneys’ requested er an award of fees Normally, and other costs. there is not a proceedings prevailing party for di- vorce or child modification. How- ever, the Uniform Child Jurisdic- (the UCCJA/Act), tion Act 10 O.S.1981 seq., provides that the trial court et Long, City, peti- John R. attorneys’ has discretion to award fees and tioner. prevailing party if it other costs clearly in- Purcell, determines that the forum was respon- Gray, Charles N. appropriate, or if it dismisses a dents. 1604(5) provides: appears 1. It to the court of this state that 1. Title 10 O.S.1981 § " the court which rendered the decree does not ‘Home state’ means the state in which the jurisdictional now have immediately preceding the time in- substantially prerequisites in accordance with parents, parent, or a volved lived with his this act or has declined to assume (6) person acting parent, for at least six decree; modify months, and in the case of a child consecutive 2. The court of this state has which less than six months old the state in this state is B. If a court of authorized under any the child lived from birth subsection A of this section and Section temporary persons ab- mentioned. Periods of modify custody this act to decree of another persons are count- sence of of the named give shall due consideration to the period." part ed as of the six-month or other transcript of the record and other documents previous proceedings of all submitted to it in provides: 2. Title 10 O.S.1981 accordance with Section 24 of this act.” made a "A. If a court of another state has Chamberlain, decree, shall not a court of this state 3. Chamberlain that decree unless: program. alleges ment The father that he from another removal of the child improper mother proper par- was unaware that the had entered from forum treatment, or that the children would need is an ty.4 Because Oklahoma cause, stay extend until the called their mother to hear the instant be- *3 17, August type him on The treat- concerning im- 1989. question there is no cause children, voluntarily ment for mother com- the moth- which the removal of the proper dispute. mitted in herself is attorneys’ for fees and costs is request er’s denied. L.L.B. in The father enrolled the Purcell 24, August
public schools on 1989. How- ever, to A.H.B. when the father tried enroll FACTS pre-school he program, in a discovered and petitioner/mother The re- given regular the child had not been his January married on spondent/father were pre- perhaps because of a immunizations— vious children, 30, two couple The had 1982. 18, allergic September reaction. On 14, 1982, on September L.L.B. born 1989, modify the father filed a motion to August on 1985. The cou- A.H.B. born custody provisions divorce de- County on divorced in McClain ple was granted temporary He cus- cree. was also The mother and chil- September 1986. tody day, of the two children. The same shortly until resided Oklahoma be- dren up in Purcell pick the mother arrived to decree. the terms of the fore the Under children, but the father refused to surren- decree, custody with the moth- placed was 2, 1989, the custody. der their On October er, receiving the father reasonable with corpus of habeas and a mother filed a writ rights. When the decree was visitation lack motion to for dismiss entered, children the mother and two were Child Jurisdic- Uniform Jasper living County, Missouri. Since UCCJA/Act), (the Act tion O.S.1981 divorce, the have lived with children denying seq. et After the writ of their mother Missouri. corpus, the trial court set the mo- habeas hearing to on dismiss for October August the children’s frater- On hearing as the on the 1989—the same date grandmother nal went to children’s temporary father’s order. brought in Missouri children home regular summer visi- to their Oklahoma trial parties appeared All before the Baxter Memo- tation. mother entered on 1989. The trial court court October Kansas, Springs, on Hospital, Baxter rial dismiss be- denied mother’s 12,1989, August “treatment Co-De- 1) pending cause: no action from the pendency.” state; She was dismissed 2) was a convenient other September 3) The facts hospital forum; engaged on father had 4) conduct; emergen- the treat- disputed reprehensible are whether an ment, duration, by discussed the mother’s mental cy were existed A the merits of the parties hearing before the children came on health. modify de- the divorce asserts that she father’s motion to mother 1, 1989, and we agreed December father cree was set for the children’s stay on November temporary be extended to issued visitation would children’s thirty-day complete treat- her allow Payment See, Boudreau, is to be Murphy ties their witnesses. ex State rel. remittance of the court for made the clerk proper party.” to the 1609(G) provides: 10 O.S.1981 § Title 1610(C) provides: Title 10 O.S.1981 clearly appears it is to the court that "If it inappropriate dismissing a appropriate cases “In may require party forum it may charge the section under this proceedings pay, who commenced the necessary ex- petitioner travel and other proceedings in this addition state, costs of fees, attorneys' including penses, incurred necessary expenses, and other in- travel fees, parties witnesses.” attorneys’ par- or their cluding other incurred other
I the children’s or future well-being;
and because it
inis
the best interest of the
COURT,
AN
children.
OKLAHOMA
REN-
WHICH
DECREE,
DERS A DIVORCE
RE-
Because the mother and the father each
TAINS CONTINUING JURISDIC-
fail
acknowledge
the difference between
TION TO MODIFY CUSTODY PUR-
to make an initial
de
SUANT
TO
O.S.1981
1616 IF
cree and
modify
SIGNIFICANT PARENTAL CON- decree,
parties
both
prob
misconceive the
TACT IS MAINTAINED AND IF lem. The
father seeks to
an exist
ONE PARENT RESIDES IN OKLA-
Therefore,
ing custody order.
the control
HOMA.
ling
pursuant
issue is whether
to 10 O.S
*4
1616, Oklahoma,
as the state which
Supp.
The mother relies on 10 O.S.
original
(decree
rendered
divorce decree
proposition
1605 for the
that once
state),
continuing jurisdiction
retains
to
a forum other than Oklahoma becomes the
modify custody.
litigants
These
are not
state,” jurisdiction
children’s “home
of a
by
first to be confused
the distinction
custody dispute
proper only
is
in the state
between initial
jurisdict
and modification
where the children reside. The mother’s
Perhaps,
ion.6
the confusion has been en
allegation
supported by
express
is not
gendered to
by mispercep
some extent
language of the statute.
It contains four
tion of our decision in
Murphy
State ex rel.
prerequisites
distinct
jurisdiction:
home
Boudreau,
(Okla.1982),
653 P.2d
state,
child,
best interest of the
abandon
and the recent decision of the Court of
emergency,
ment or
jurisdiction
and lack of
Mays,
Breaux v.
746 P.2d
other state. Neither is this asser
(Okla.Ct.App. 1987).
supported by
teaching
in Holt v.
Court,
(Okla.
District
626 P.2d
Boudreau,
although
we held that
an
1981) that
jurisdiction
bases for
set Oklahoma
parties’
court had entered the
forth in
divorce,
1605 are in
jurisdiction
the alternative.
to consider modifica-
upon
(2)
The father relies
subsection
of the
tion of the custody decree
inwas
the chil-
same statute. He contends the trial court
dren’s “home state.” The father in Bou-
jurisdiction:
should assume
sig
petitioned
because of
dreau
an Oklahoma court
nificant connections between the children modify
prior
its
custody decree after hav-
state;
and this
because there is
removed his son from the child’s “home
without,
evidence located in
concerning
state”
either
permission
or the
Supp.1982
care,
5. Title 10
provides
O.S.
protection,
§ 1605
training
personal
future
pertinent part:
relationships; or
competent
"A. A court of this state which is
physically present
3. The child is
in this state
custody
jurisdic-
to decide child
matters has
and:
custody
by
tion to make a child
determination
abandoned,
a.
the child has been
or
initial or modification decree if:
necessary
emergency
b.
is
in an
1. This state:
subjected
tect the child because he has been
a.
is the home state of the child at the time
or threatened with mistreatment or abuse or
proceeding,
of commencement of the
or
neglected
dependent;
is otherwise
or
or
b. had been the child's home state within
appears
4. a.
It
that no other state would
six months before commencement of the
prerequisites
have
substan-
proceeding and the child is absent from this
tially
paragraphs
in accordance with
2 or 3
state because of his removal or retention
subsection,
of this
or another state has de-
person claiming
sons,
custody
his
or for other rea-
ground
clined to exercise
on the
parent
person acting
and a
or
as
that this state is the more
forum
state;
continues to live in this
child,
to determine the
2.
It is in the best interest of the child that a
b.
it is in the best interest of the child that
court of this state assume
be-
this court assume
cause:
...”
parents,
a.
the child and his
or the child
See,
Neger Neger,
contestant,
93 N.J.
459 A.2d
and at least one
have a
(1983);
state,
Superior
Kumar v.
connection
186 Cal.
with this
Rptr.
b.
there is available in
this state substan-
Cal.3d
tial evidence
the child's
persuasive authority7
The fa- be considered even
knowledge of the child’s mother.
hereby
custody provisions
and is
overruled.
modify
sought
ther
in Oklahoma
decree entered
a divorce
Generally,
continuing
courts
district
However,
modify
jurisdiction to
Mexico court
was made
a New
award
UCCJA,
initial
support orders.8 Under
from New
The child was removed
treated
and modification
are
by his
brought
to Oklahoma
Mexico
differently.
primarily
Initial
the New Mexico cus-
in violation of
father
in the state with the closest connections
Although our discussion
tody order.
his/her
the child and to information about
concept of
on the
centered
Boudreau
well-being.9
present and future
Jurisdic-
jurisdiction,
proper analy-
state”
“home
existing
modify
tion to
decree is
sis,
reached
same
which would have
reserved for the state which rendered
apply today,
analysis
we
result under
in the de-
decree.10 Jurisdiction remains
recognize that
have been to
New
long
state
one
cree
as
continues
Mexico,
orig-
entered the
as the state which
reside in
state.11
jurisdic-
awarding custody, had
inal order
Recognition
priority jurisdiction of
order under the
tion to
underlying
reinforces
UCCJA.
prevent
policy
the UCCJA
*5
Breaux,
shopping by disappointed parents
gain
to
parent filed mo-
In
a resident
a
previous
in a
fo-
rights denied
modify custody provision
a
to
entered
accomplished through
rum.12
two
This is
The nonresident
by an Oklahoma court.
Act.
1608 limits the
sections
the
Section
filed a
to dismiss on the
parent
authority of an Oklahoma court to hear a
subject
the
lacked
grounds that
trial court
a
in
dispute
pending
if there is
suit
jurisdiction.
matter
The Court
is
a court of another state.13 Section 1616
recognized the
of the UCCJA—that
intent
requires
Act.
identical to the Uniform
It
continuing
original decree state has
the
defer to
continu-
that Oklahoma courts
the
modify custody
to
awards.
ing jurisdiction
entering
the court
However, it held that
original custody
long
as that
decree
longer
no
the
“home state”
children's
under the Act.14
the trial
was without
we
modify the decree. Because
find
1616
found in
counterpart
is
§
court,
which renders a di-
an Oklahoma
14 of the Uniform Child
Juris-
§
decree,
continuing jurisdiction
retains
Act. The comments
that section
vorce
diction
significant parental
emphasize
importance
deferring
modify custody if
the
entering
give
parent
original
if one
decree
state to
has not ceased and
contact
arrangements.15
stability
Sec-
longer
in
can no
resides
Breaux
perti-
provides
1608
in
§
was filed
this
13. Title 10 O.S.1981
No
certiorari
7.
part:
cause.
nent
shall
exercise its
"A. A court of this state
Klein,
777,
Barnett v.
P.2d
779
8.
765
this act if at the time
under
filing
petition proceeding
a
815,
Marriage
Leyda,
N.W.2d
In re
398
819
pending
6,
child was
in a court
1987);
(Iowa
Neger
supra.
Neger,
note
v.
see
exercising jurisdiction substan-
another state
567,
Davignon,
Meier v.
105 N.M.
act,
conformity
tially
with
by
unless
Bodenheimer,
807,
(1987);
"Interstate
809
B.
proceeding
stayed
other
the court of the
Continuing
Custody: Initial
&
Jur-
Jurisdiction
state is more
state because this
UCCJA,” Fam.L.Q.
14
under
203-04
isdiction
other reasons ...”
or for
(1981).
1616,
2, supra.
see note
§
14. Title
O.S.1981
Hamilton,
Cooper
ex rel.
688 S.W.2d
State
v.
821,
(Tenn.1985);
Superior
Kumar v.
Laws
14 of
Uniform
15. The Comment
Cal.Rptr. at
652 P.2d at
see note
pertinent part:
provides in
1007, supra.
greater stability of
In
to achieve
"...
order
Knoth,
shop-
custody arrangements and avoid forum
v.
S.C.
377 S.E.2d
12. Knoth
(a)
(1989);
Ball,
ping,
states
Fry
declares that other
Colo.
P.2d
subsection
342
402,
continuing jurisdiction
will defer to
clearly prohibits
tion 1616
an Oklahoma
jurisdictions
which
modifying
custody provision
court from
have
if
considered the issue19 and with this
Bates,
holding
Court’s
Roundtree v.
entering
decree con-
1299, 1301 (Okla.1981).
tinues to
Section 1616
corollary
requires Oklahoma courts to defer to custo
principle
announced in
1616 is that
dy orders of another
state as well as to
connection
con-
decline their modification unless the other
prior
tinues in the state
decree
one
if
longer
state is no
vested with
parent
continues
to reside in the state
the UCCJA. Roundtree
involved
even
the child
lives
another state
if
the issue of whether an Oklahoma court
six months or more.16 Section 1616 con-
need defer to a
entering
decree
state on the
jurisdiction:
fers a kind of
inverted
Roundtree,
comity.
basis of
neither
hibits a non-decreeing state’s exercise of
parent
Kansas,
continued to reside in
jurisdiction except
in limited circumstanc-
decree state. Oklahoma was the children’s
language
emphasizes
es.17 Its
However,
“home state.”
the father had
original court
is intended to have and to
obtained modification of
custody pro
exclusive,
retain
continuing jurisdiction.18
decree,
visions of
and he
We find that after a court
renders
sought
to enforce the
through
decree,
divorce
continuing juris-
retains
corpus
writ of habeas
in an Oklahoma
pursuant
diction
to 10 O.S.1981
1616 to
court,
court. The trial
in deference to the
modify custody
significant parental
con-
state, granted
the father’s writ.
maintained,
tact is
and if one
resides We held that
because neither
contin
finding
This
is in
Kansas,
accord
ued to
reside
it was error
long
Clarke,
court of another
state as
as that state has
126 N.H.
496 A.2d
jurisdiction under
(1985);
Houtchens,
standards of this Act.
*6
Houtchens v.
488 A.2d
words,
petitions
In other
all
(R.I.1985);
Court,
Superior
729
Kumar v.
see
prior
are to be addressed to the
6,
state if that
550,
supra; Biggers Biggers,
note
v.
103 Idaho
state has sufficient contact with the case to
555,
692,
(1982); Neger Neger,
650 P.2d
697
v.
satisfy section 3 ...”
6,
D.A.,
595,
supra;
see note
E.E.B. v.
89 N.J.
also,
Bodenheimer,
See
"Progress
B.
Under the
871,
(1982),
denied,
446 A.2d
880
cert.
459 U.S.
Custody
Uniform Child
Jurisdiction Act & Re-
1210,
1203,
(1983),
103 S.Ct.
jurisdiction26 appropriate considering the is state, parents both have left or if the best the child/children in- interests of resident has discontinued relations volved. with his/her child/children. We the trial court say cannot abused Although of the decree by exercising its discretion over exclusive, state is trial court has discre- the instant cause. Oklahoma has a close tion under 10 O.S.1981 1609 to decline to L.L.B. and connection with both A.H.B. hear a cause if Oklahoma is an inconven- only Oklahoma was the matrimonial domi- forum, ient judi- and if some other state’s here, together cile. is Their father with a system cial better would be suited to hear number of of the children’s ex- members finding cause. A non conve- forum L.L.B. attends an family. tended Okla- might niens if the resident public being homa school. A.H.B. is seen parent has cut all connections with his/her pediatrician reports a local who that he Here, children. the Oklahoma trial court well, doing is that his asthma condition proper was a to hear the cause be- appli- has stabilized. Because father’s parental cause the bond been main- cation for in- will tained, relating evidence substantial only volve not mother’s fitness as a custody is located in changed and the existence of cir- ASSUMED; ORIGINAL JURISDICTION cumstances, competence father’s but the PROHIBITION, WRIT OF WRIT OF children, of his MANDAMUS, AND WRIT OF HABEAS concerning evidence the future care of the CORPUS DENIED. children is located Oklahoma. Addition- ally, records OPALA, V.C.J., HODGES,
first award of are located in Okla- homa, SUMMERS, JJ., judge who DOOLIN the trial refused to concur. determining Cartwright C. inconvenient State ex rel. v. Oklahoma Natural forum, Co., shall Gas the court consider if it is in the *8 that another state interest of the child assume Shea, purpose may (Okla.1975). this 25. For take Shea v. P.2d 417-18 537 factors, following among into account the oth- 10, ers: Davignon, 26. Meier v. note see 105 N.M. at recently is supra. 1. If another or was the state, 734 P.2d at state; child's home 2. has a If another state closer connection prompted finding by 27. This fact in a itself has family his jurisdiction with the child and or with the child properly other courts that exer contestants; and of the Biggers Biggers, supra; one or more cised. v. see note (Fla.Dist.Ct. Agner, 3. If evidence v. 373 So.2d 51 Hofer care, protection, App.1979). child’s future or training relationships personal and is more state; readily in another Cooper Cooper, available 28. In v. 616 P.2d 1156 agreed (Okla.1980), parties have If the on another fo- we enumerated certain circum- appropriate; justify jurisdic- rum which less is no and stances which would concurrent jurisdiction by modify custody of 5. If the exercise a court of tion to a order. The decision in any pur- infringe upon this state contravene would instant cause does ruling. poses stated 2 of this act in Section ..."
73
LAVENDER,
(Okla.1981).
C.J.,
The
HARGRAVE,
1301
intent of
and
WILSON, JJ„
and ALMA
was likewise to maintain con-
SIMMS
the UCCJA
jurisdiction
issuing
dissent.
in the state
tinuing
However,
Id.
at 1302.
decree.
Justice,
LAVENDER,
dissenting:
that a
equally clear
the fact
court was
interpreta-
Because the court errs
its
jurisdiction
perpetual
deemed
have
never
forum,
continuing jurisdiction
and
tion of
may
point
jurisdic-
that at some
lose
and
and
non conveniens
under
UCCJA
Id.
tion.
law,
respectfully
I must
Oklahoma case
custody
that a
or-
10 O.S.
states
§
I
agree
dissent from this decision. would
may
der of another state
be modified if
continuing jurisdiction
had
that Oklahoma
jurisdiction
“does
have
that state
not now
initially
modifica-
hear the
substan-
jurisdictional prerequisites
under
However,
according
custody.
of
tially in accordance with this
act ...”
A
precedent,1
well
established
Oklahoma
decree state that
loses home
status
jurisdic-
have
declined to exercise its
case,
ceases to have
connections
tion. Under the circumstances of this
between the
is a more
l'O and substantial
as
Missouri
evidence
child
parents,
O.S.1981
1609.2
and one or
then
both
must
prerequisites
meet one of the alternative
I.
maintaining
jurisdiction
jurisdiction or
Roundtree,
P.2d at
is lost.
1302-03.
case,
In a
therefore,
enough
It is not
state as the
jurisdic-
if
court must first determine
it has
opinion
jurisdic-
has
their
then,
tion and
should be exer-
Court,
“long
as
Holt
tion is maintained so
one
v. District
626 P.2d
cised.
(Okla.1981).
resides in
Generally a decree
still
state.”
require
case law
continuing
state has
UCCJA
Bates,
Ball,
Fry
v.
I
order. Roundtree v.
Nor do find that
more.3
readily
Mays,
(Okla.Ct.App.
personal relationships is
1. See Breaux
more
Boudreau,
1987);
state;
Murphy v.
State ex rel.
available
another
Bates,
(Okla.1982);
parties
agreed
P.2d 531
Roundtree v.
on
fo-
If
another
(Okla.1981); Holt v.
appropriate;
P.2d 1299
District
is no
rum which
less
(Okla.1981);
Cooper
Coo
1.Avoid
even
cus
privileges
adequate
todial
provoc
conflict with courts
other states in'
without
exactly
matters of child
which have in ation4
the trial
has done
(c)(1)
require
competent
Section
would then still
A. A court of this
which is
1738A
satisfied under state
law.
decide child
matters
Since
holds that
Oklahoma’s Act
make a child
determination
initial or
substantially
only proper
complies
when it
modification decree if:
Act,
prerequisites
enough
the
only
it is not
physically
3. The child is
in this
one
reside
the state to have
state and:
continuing jurisdiction, unless there are also
abandoned,
a.
the child has been
significant contacts and substantial evidence as
emergency
necessary
protect
b.
it is
the state.
between the child and
subjected
the child because
been
to or
he has
judge
emergency
4. The trial
found that an
situa-
threatened with
or abuse or is
mistreatment
support
dependent;
neglected
tion existed. The evidence does not
otherwise
finding.
such
10 O.S.1981 1605 states:
The comments to
UCCJA hold that:
extraordinary jurisdiction
Prerequisites
is reserved for
"This
*10
child) the
that case
that
prevent,
was intended to
facts of
showed
what this statute
neither
major
the two
ex-
indeed
bases
the
stability
the
home envi
undermine
way
holding
and that
the
the
isted
ronment.
be construed.
III.
Losing home state status to Texas cou-
con
with,
Texas,
in number of cases has
Oklahoma
as
pled
between Oklahoma and
applied
reasoning
significant
the
sistently
the
the more
with
contacts were
Texas,
Murphy
rel.
v. Bou
was
the
in
State ex
In
seen
Court of
UCCJA.
father,
Breaux
dreau,
require
be sufficient
(Okla.1982),
P.2d
Petitioner
visiting
whom
was
in
only
the child
Oklahoma
modify an
brought an action to
Oklahoma,
go
litigate
to Texas to
custo-
custody decree. The
decree was
essential
changes.
dial
the
hold-
This was
conjunction
rendered in
with valid divorce
in Breaux and the
opinion
should not
decree,
for
neither
the determination
which
overturned.
questioned
the
party had
jurisdiction was
Oklahoma court. While
IV.
disputed
later
in
much
contested
Finally,
is mistaken when
court, Murphy Murphy,
see
Mexico
New
Mar
Missouri,
under In re
that
speculates
(1981),
N.M.
been Missouri for the three present ability to care for the children. years, and therefore Missouri has become Though litigated could be either their home state. Missouri, likely Oklahoma or it is more necessary all of the evidence for this 2. Closer Connections Missouri, ceeding is in not Oklahoma. question is which has Therefore, again Missouri ap- is the more “substantially” comply contacts that would propriate forum. jurisdictional requirements Act. The official comments to the UCCJA purposes 4.Contravenes UCCJA state that: Oklahoma should not retain only if exists it is [Jurisdiction to do so would contravene the intended interest, child’s merely the interest purposes of the UCCJA. The intent was to feuding parties, convenience discourage continuing controversies over particular to determine in a custody decisions that resulted in unilateral state. The interest the child is served removal or retention of a child from his when optimum the forum has access to present preven[t] relitigation home and relevant evidence about child and that shifts the child from state to state. family. There must be maximum rath- Shaw, Brauch v. N.H. er than minimum contact with the (1981). Though clearly A.2d this does added.) (Emphasis state. not mean there will never abe need for Note, UCCJA, Commissioner’s modification, arise, when the need does (Master’s Ed.1979). U.L.A. should be done in the state most able to Missouri has been'the children’s home for reach an informed decision. years. the last three It is here that the Furthermore, courts have held that cus- school, records, children’s school extended not, tody except compelling should cir- friends, teachers, family pediatricians, cumstances, changed when the child is clinic, allergy church, etc. are available. temporary care of the noncustodial Though certainly Oklahoma has some con- parent. tacts parent, with the children and one visiting with whom a child is [A] contacts, most as between the jurisdiction ordinarily in another parent, children and another are in Mis- permitted, except clearly not be com- Indeed, souri. from the evidence sub- circumstances, pelling to use the occa- mitted, it indicates that the children were sion to seek to divest the other only in Oklahoma for two weeks each sum- judicially right custody. decreed To mer. permit place premium this would on the right abuse of visitation and make 3. Substantial evidence parties agree it difficult for on the Obviously the vast of evidence free movement of the child from one concerning the children will be in Missouri. parent to the other. noted, As the children made their home in (3rd Bergen Bergen, 439 F.2d past years. Though Missouri for the three Cir.1971). language speaks of the statute in terms case, Ferreira, of which state has “substantial evidence A California Ferreira Cal.Rptr. the child’s Cal.3d 829 109 109 512 future care, protection, training personal rela- P.2d held that “We have tionships,” perfect Missouri still have the neither been able to find a answer
77 existing, ing pending nor a solution of then it dilemma to invent determine which state the most must can do than submit our own. We no better jurisdiction. convenient forum to exercise the fo resolution: the court of a realistic If it another conve- finds state is a more ordinarily reopen the refuse to rum should forum, nient then under the standards of whose custody of a child question UCCJA, may jurisdic- not exercise existing decree custody is vested under an (Carson v. (1977) Or.App. Carson tion parent.” in a nonresident The UCCJA 763; affirmed Or. case, this how passed California after 846). 469, 579 P.2d v. Schlumpf Schlumpf ever, 79 Cal. Id. Cal.App.3d Cal.Rptr. at at (1978), held App.3d Cal.Rptr. Ferreira language still valid. stay proceed- the trial I would court from VI. ing change hear the father’s however, would, I custody to himself. con- custody deci are difficult Child decision court’s temporary tinue the trial sions, modifications of harder still. in favor of father in force for a order Moreover, may “right” there not be forty days finality period of from the only “wrong” decision. A can at court provided opinion court’s father over, patch tempt “repair, and cover litigate ceeds in the state Missouri to can, the they irreparable harm occa best during in that that issues [by shifting custody] and reduce sioned period. time If no such effort father is Hop Hopson minimum harm to a ...” forty during day period such the tem- made son, Cal.App.3d 884, Cal.Rptr. respondent porary order of the All important the more longer Oklahoma court no position in the to make a court to be best validity and the children would be returned question a determination. not a such It is hand, If to their mother. on the other continuing jurisdic here Oklahoma has application files his in Missouri to father tion, facts, given Respondent but children, custody of modify the jurisdic have declined exercise extending question temporary order tion. then be the Missouri could addressed courts, Regarding problem of two court. having “jurisdiction” only one of each but that HAR- I am authorized act, following quo- I which should find the C.J., GRAVE, and ALMA WIL- SIMMS Hopson opinion particular- from the tation SON, JJ., join in the herein ex- views ly instructive: pressed. realistically antici- commissioners pated problem jurisdic- of concurrent existing in one state. more than
Therefore, they provided steps additional only
to assure that one state makes one state decision. The fact that custody dispute has over a Joyce Jerry Ingram, INGRAM preclude from does not another state ... Plaintiffs-Appellants, in the jurisdiction.... step first orderly procedure determin- UCCJA’s The STATE court may which Defendant-Appellee. requires that must ascertain whether No. second, UCCJA; the court terms Supreme Court is a custo- must determine whether there Jan. proceeding a decree exist- dy pending or presently has ing in another state which that it has If the finds proceed- no
jurisdiction, and there is