*1 8, 5, 2001, Argued and submitted October resubmitted en banc December reversed part; February remanded otherwise affirmed In the Matter of the Marriage MEDILL,
David Appellant, MEDILL, Elvira Respondent. 98-04-163;
DR
A112620
No Edmonds, Landau, Deits, Judge, Before Chief Kistler, Linder, Wollheim, Brewer Haselton, Armstrong, Schuman, Judges.
631-a
BREWER, J. dissenting.
Edmonds, J.,
631-b *4 BREWER, J. appeals dismissal, for from the trial court’s
Father subject jurisdiction, father’s motions to mod- lack matter provisions ify parenting plan dis- child and of a modify, judgment; suspend terminate, or his child solution support to obligation; contempt to of court and hold mother violating plan. assigns parenting Father also error denying entry the order of an order his motion set aside subject- dismissal.1 Father contends that the court had determina- matter initial child Custody Act under the Uniform Child Jurisdiction tion (UCCJA), by repealed 109.930, ORS 109.700 to ORS 649, 55, former authority § to mod- 1999, Laws ch and that it had Or Custody ify that under the Uniform Child (UCCJEA), 109.701 to Enforcement Act Jurisdiction (1999).2In addition, 109.834 father contends that modify, suspend his terminate, parenting plan support obligation, and to enforce contempt proceedings. part; other- We reverse and remand in wise, we affirm. military, serving in the States father
While United parties The mother Denmark 1985. met married marriage Germany their until Their two lived in after 1997. respec- 1988, in 1986 children were born expecting tively. 1997, fall of Father in the moved Oregon. Mother mother children move to that and the would the children remain later informed father she and would Germany. agreed parties father file a dis- The would Oregon. May 1998, action in the Clackamas solution County consent, a dis- entered, Circuit Court with mother’s judgment parenting par- plan. that included a solution joint custody enting plan children, called for custody, retaining physical and it awarded father mother UCCJA cable enacted 1999 version version of Effective October Mother has not provisions are to the 1997 version of in its place. the ORS. of each Or Laws Act. Unless otherwise appeared 23, 1999, act in analyzing appeal. ch Act, UCCJA 649. As father’s noted, statutory was references to the UCCJEA necessary, repealed arguments. we and the UCCJEA will refer to references are to References are to the to the appli was *5 during any parenting with time the children school vacation period lasting at least weeks. two July 1998,
In the children traveled to to visit father. Based on information he from children obtained the during temporary protective visit, the father a obtained order prevented returning Germany that the children from to as protective Mother scheduled. came to contest the hearing, order. September a After the trial vacated order in court the 1998, and the children returned to vacating specified timing mother. The quency telephonic order and fre- of access between father and children, rights parenting reaffirmed father’s time with the chil- provided any dren, and court should be notified of parenting further time violations mother. contempt proceed- 1998,
In a December father filed ing against alleging repeatedly mother, that she had violated parenting plan. April In 1999, the trial entered court a judgment finding contempt, sentencing mother in her to one- year probation, modifying parenting plan court and once clarify parenting more of terms father’s Later in time. reporting 1999, father sent a of court, series to the affidavits alleged parenting plan by additional violations ofthe mother. custody proceedings 1999, In October mother initiated in a family asserting engaged court, German had father a campaign bad-faith to undermine her of children throughout previous proceedings. pleadings, court In her any legal proceeding— mother that the tody first asserted —for the time in German court exclusive cus- parenting plan regarding issues the children. In December father initiated the current mod- proceeding ification in the trial court. His third amended sought change order motion and or, to show cause of alternatively, parenting plan, as modification of the well support obligation, as modification or termination of his child suspension support of child based mother’s interference parenting plan, judgment contempt with the based on alleged parenting plan, mother’s violations ofthe and various hearing those sanctions for violations. trial held a appear. August on father’s motion in 2000. did not Mother dismissing November, the court entered an order father’s sua motions, it lacked sponte holding subject-matter court’s focused findings over them. The written on the determination: been, times [mother] has at all material
“That remains, Germany; a citizen and resident always parties
“That the children of been Germany; remain residents of to the [mother]
“That submitted herself her purposes dissolving marriage Court [father], though present Oregon; never within *6 from the children [father]
“That thereafter withheld forcing [mother] to after a summer visitation [mother] Germany to the return of the Oregon travel from secure to children; proceedings participated [mother] those
“That finding in con- [mother] in the Court which resulted regard- tempt violating a of Restraint Temporary for Order children, phone with the and which ing [father’s] contact [mother]; custody of to returned the children correspon- in her “That makes credible claims [mother] dence, attorney, may consti- and that of her German which proceeding; contempt tute a to this defense has been involved local German Youth Office “That the to and [mother] and other services providing counseling [father’s] are [mother] related to what claims the children with relationship [mother’s] to ongoing efforts undermine change custody; engineer and the children resolve necessary to the issues “That all of witnesses judicial response, appropriate and fashion an presented [father], Germany; except are residents hearing date at the ofthe pending there were time “That Bayreuth, Family herein in the proceedings general issuesf]” relating Court to these same that concluded the trial court findings, From those had been the children’s home and never Oregon was not UCCJEA and the UCCJA or the of either purposes forum in which was an available family the German court litigate The trial also con- parties’ ongoing dispute. cluded that lacked par- over and, therefore, issues enting time raised father lacked authority any to enforce order it enter. On November might 14, the dismissing court entered an order motion and father’s order to cause in entirety. show its trial time,
Unknown to the court at that the German family court entered an order previously declining exercise involving par- issues decision, ties’ children. its explained: German court connection, “In this it is important recognize that previously [mother] consented to American Court’s decision, divorce parental custody. which also dealt with The the provision divorce decision’s [mother] would have parental custody
actual for the minor children parties both otherwise would joint legal right [mother] caveat has the sole to determine the permanent residence, children’s place of is a decision that could have also been reached under German It corre- law. sponds law, approximately to German which allows the parents joint custody gives right mother the permanent case, determine can, residence. In this [mother] law], [German accordance with custody.’ exercise ‘actual “In previous view of the proceeding regarding parental cus- tody in the USA and in view of pending custody proceed- ing Court, in the recognized Circuit which can be law, [German court] German considers a impermissible.” decision to be
After receiving copy a of the German court’s decision 28, on November father filed a to set motion aside the trial court’s order of argued dismissal. Father the German court’s to failure assert over the children jurisdiction freed court to On 8,2001, do so. the trial court January denied the motion to set aside the dismissal. In a written order, explained: the court
“The German Court’s decision to defer to the Court here objection jurisdiction, based on [father’s] its determina- tion proceeding proceeding that the here had initiated prior been
there, [mother] its mistaken belief that had petitioned this a judgment Court for modification of within proceeding this jurisdiction cannot create this Court 636 governing by applicationofthe statutes. none exists
where they ruling only that should not was The German Court’s proceed by [mother] [father’s] petition filed over on the objections, not the converse.” “Oregon jurisdiction never had determined that The court make an ‘initial child ” custody However, the determination.’ jurisdiction to make that, if had court also concluded “Oregon custody determination, would have an initial 109.744(1)(a) by jurisdiction pursuant to ORS lost that appeals hearing.” noted, from the trial As father time of this show cause and of his motion and order to court’s dismissal of the dismissal. its denial ofhis motion for reconsideration trial that the first address father’s contention We jurisdiction concluding to make that it lacked court erred urges custody determination. the trial Father the initial provides, jurisdiction 107.105, which court had part: “(1) grants a decree of marital Whenever the court separation, may
annulment, it further decree dissolutionor * * *. * * * “(a) custody all minor the future care and For ” * * *
children
did not have
over
However, the trial court
chapter
custody
107 if it lacked
under ORS
UCCJA,
in effect at the
under the
which was
determination. Mackie
time of the initial
Mackie,
(1992) (holding
App 273, 277,
637 custody the trial its initial deter When court made mination, jurisdic the governing ORS 109.730 was tional statute under the UCCJA. It is undisputed mother, custodian, physical children and their have never only resided in and that father had connection any with custody this state when the initial determination was made. it is trial Accordingly, readily apparent court did jurisdiction initial deter acquire custody make an (c) (1997). (b), 109.730(1)(a), mination under ORS or However, the did to make an 109.730(1)(d) initial determination under ORS (1997). That subsection applied because no other state had over the custody determination under ORS (c) 109.730(1)(a), (b), (1997), or and it was in best inter ests of the children that Oregon jurisdiction. assumed Under the UCCJA, state, “state” meant “any territory, or possession States, of the Rico, United Commonwealth Puerto and 109.710(10) (1997). the District of Columbia.” Because it might question Stork, exercise That was decided in Mackie at respect arising chapter Although least with to dissolution actions 107. directly contention, those decisions refute his has father not cited them his brief argument appeal. or (1997)provided, part: ORS 109.730 “(1) competent A court of this state which is to decide child mat-
ters has
fication
child
make a
or
initial modi-
if:
decree
“(a)
state
This
is the home state of
at the
the child
time of commencement
proceeding,
of the
or had
state
been
child’s home
within six months before
proceeding
commencement of the
and the child is absent from this state
by person claiming custody
because of removal or
retention
for other rea-
or
sons,
person
state;
parent
acting
parent
and a
or
as
continues to live in this
“(b)
It is
the best interest of the child that a court
state
of this
assume
parents
child,
because the child and the
of the
child
or the
and at
contestant,
state,
least one
have a
with
connection
this
there is
concerning
present
available in
state
this
substantial evidence
the child’s
or
care,
training,
personal
protection,
relationships;
future
“(c)
physically present
state
is
in this
and the child has been
necessary
emergency
protect
abandoned or
in an
the child because the
subjected
child has been
otherwise
threatened with mistreatment or abuse or is
or
neglected
dependent;
or
or
“(d)
prereq-
appears
It
that no other state would have
(b)
(c)
(a),
substantially
paragraph
uisites
tion,
or
of this subsec-
accordance
ground
to exercise
on the
another
has declined
child,
appropriate
more
this state is the
forum to determine
jurisdiction.”
and it is in the best interest
the child that this court assume
foreign nation,
not “a state” within the
is a
was
meaning
Horiba,
Horiba and
151 Or
UCCJA.
(1998).
(1997),
499-500, rev den
However, we conclude that trial court portions current to decide the father’s have seeking modify motion and order to show cause parenting plan UCCJEA, determination and controlling A the law effect when motion was filed. provision provides: Act, 109.744, of that ORS
“(1) 109.751, a Except provided as otherwise custody determi- of this that has made a child court or 109.747 has nation consistent with ORS 109.741 ORS exclusive, continuing jurisdiction over determination until:
“(a) determines that neither the A court of this state child, parent, per- child and a nor the child and one nor the significant connection with acting parent as a son longer evidence is no avail- this state and that substantial care, protection, child’s concerning in this state able training personal relationships;
“(b) a court of another state A court of this state or child, parents any per- the child’s determines that the reside in this state. acting parent presently son as a do not “(2) of this state that has made a child A court exclusive, continuing determination and does not have may modify that determina- jurisdiction under this section only if court has to make an initial tion 109.741.” 109.744(1)(a) makes clear that an over a determi does not have exclusive nation where the child lacks connection the child’s concerning this state and substantial evidence care, is no training, personal relationships protection, *10 dismissal, In available in this state. its order of longer in trial court found that the children have never resided con and that all of the witnesses with information Oregon Further, in Germany. the children’s welfare resided cerning reconsideration, in its order the trial court stated denying continuing jurisdiction that it did not have exclusive 109.744(1)(a), on the court depended conclusion found that the children did not have a con having nection to this state and that substantial evidence concern their here. Father does not ing welfare was not available those and our review of the record dis challenge findings, they beyond dispute. closes that are reasonable Oregon The dissent holds disagrees, asserting The exclusive over the determination. it is for possible Oregon dissent believes apparently under ORS 109.744 continuing jurisdiction retain exclusive and, time, Germany at the same to have “home state” 657 109.741. 179 Or at App J., That conclusion is (Edmonds, dissenting).5 perplexing. state’jur “Germany’s authority ‘home contends that to exercise The dissent * * * of‘exclusive, continuing grant deprive the trial court of isidiction does ambiguous. meaning The word “exclusive”is not Its common ~ <~ “single, agent> jurisdiction^” sole <an Webster’sThird 1993). Dictionary, (unabridged Nothing New Int'l ed meaning. the context of ORS 109.744 indicates a different Oregon’s jurisdiction simply Because could not be if sole Germany ambiguity. jurisdiction, could exercise “home state” there is no necessary implication
Thus, the of the dissent’s Oregon view that retains exclusive is that lifelong any jurisdic children’s home—lacks —the agrees, expressly pre tion at all. As the dissent the UCCJEA fers to be exercised a child’s “home state.” 179 App (Edmonds, dissenting); Or at J., 655-56 see also ORS (d) 109.741(b),(c), (deferring types other jurisdiction). favor of courts with “home state” The dissent’s Oregon’s belief that courts retain exclusive necessarily determination in this case contra preference. venes that Oregon
In aid ofits conclusion that retains exclusive jurisdiction, the dissent relies on four factors—without differ support entiation —to its assertions both that has a “significant connection” to the children and also that it har concerning protection, bors “substantial evidence” care, their 109.744(1)(a). training, personal relationships. spent first factor is the time that the children in this state in July 1998. That visit commenced and was to have been parenting period. kept five-week time noted, As father September, children in until when the trial court Germany. Apart period, ordered their return to from that the the present children have never been Second, this state. dissent relies on father’s residence in this state since 1997 presence family, including and of members of his his jurisdiction.’ sions child has osition, so Child (1997)). this state. courts lack exclusive have exclusive any respect long 109.744(1)(a) * * * Custody as the the dissent cites the That *11 acquired are met.” 179 Or ” inconsistent with our conclusion —elaborated portion general 179 Or Jurisdiction and Enforcement Act 202 a new home because “substantial continuing of the requisites at while another has home state commentary UCCJEA State, at 657 (Edmonds, J., of the ‘substantial (Edmonds, J., dissenting) commentary connection” original in no over the dissenting). way suggests decree State retains § connection’ and states Comment, below —that support that one state that, (quotingUniform does not-exist 9 ULA “[e]ven jurisdiction, of that Nor is it in 649, Oregon under provi prop if the may [674] in
641 on one— present Third, the dissent relies wife, in this state. psychological perhaps, of the children evaluations or performed two— points Oregon to a Fourth, the dissent in 1998. in performed in 1998.6 evaluation court-ordered argument exclu assertion of down to an thus boils dissent’s presence Oregon jurisdiction father, his on based sive occurring parents 1998, state, in this and events wife, and apparently consisting and evidence that visit ofthe children’s during However, the and evi visit that visit.7 was obtained contacts, rather than limited from it constitute dence derived significant and this state. connections, the children between family’s pres coupled and his contacts, with father’s Those Oregon, rather than the sort of “maximum are not ence minimum may
contacts]” exclusive confer Weathersby, e.g., See, v. 320 Stubbs the courts ofthis state. (1995) (holding, simi 991 4,n 892 P2d Or 627-28 juris “significant requirement, connection” lar UCCJA requires than minimum contact “maximum rather diction physical pres child’s short-term state,” and that a with jurisdiction); enough rel State ex is not to establish such ence Washington App 477, 480-81, P2d Bue, Or v. State of requirement, (holding, UCCJA under similar 278 children did Oregon
not have a connection only of“the fact that father their connections consisted where family and that the chil relatives live in and other dren make occasional visits mother”). their so, trial court would not if that were not Even continuing exclusive 109.744(1)(a), applicable provision UCCJEA, concerning care, the children’s evidence unless substantial relationships protection, training, personal also existed testimony Oregon. father that the The dissent asserts together family evidence, such his members constitutes court, explained: the German father In a letter written to custody hearing September It was determined a cus- “A was held in 1998. enough physical tody to warrant a mod- that there was not evidence evaluator custody.” ification of passing Oregon court records the existence of The dissent also mentions However, proceedings. properly prior custody parenting relating time any jurisdiction- copies available for use of those records are authenticated may recognized. including Germany legal their effect be —where *12 642 disagree. requirement “[T]he
with the
evaluations.
We
availability
of the
of ‘substantial evidence’ should be under
require optimum
stood to
access to relevant evidence.” Settle
(1976).8
frag
Settle,
759, 767,
and
276 Or
under subsection jurisdiction on to exercise has declined of the child state forum under appropriate state is the more ground that this [jurisdiction or 109.764 forum] [inconvenient ORS 109.761 conduct], and: of by reason declined “(A) the child and parents, or and the child’s The child a parent, as a acting person or a parent at least one significant phys- mere other than this state connection with presence; ical
“(B) in this state con- available evidence is Substantial care, training personal protection, cerning the child’s relationships; “(c) jurisdiction under subsection having courts All
(l)(a) (b) jurisdic- to exercise have declined of this section or the more this state is that a court of ground on the tion custody of the child forum to determine appropriate 109.764; or or ORS 109.761 under “(d) jurisdiction would have any other state No court of (c) (b) (1)(a), or of specified subsection
under the criteria this section. “(2) juris- is the exclusive this section Subsection custody determination making a child for
dictional basis a court of
this state. over, “(3) of, personal or Physical presence make a necessary or sufficient is not or a child party a custody determination.” possible the four turn, each of examine,
We custody jurisdiction initial asserting for grounds (1)(a) because 109.741(1). inapplicable, is plainly Subsection any was not the children’s at home state time. See 109.704(7) (defining ORS “home state” as “the state which parent person acting parent a child lived with or a as a immediately at least six consecutive months before the com custody proceeding”). mencement of a child (1)(b) (c) inap Subsections also would have been plicable change of a fundamental because in the definition of JA, “state” the UCCJEA. Unlike the UCC the UCCJEA requires Oregon foreign country courts “treat a if it as were purpose applying the United States for 109.714(1). consequence, 109.701 to 109.771.” ORS aAs Germany is the state,” children’s “home and the trial court could not have asserted under either subsection (1)(b) (c) or unless German court had declined ground forum, on the it was an inconvenient engaged unjustifiable 109.761, or because mother had con duct, ORS 109.764. Neither reason was cited here. The German court deferred to the trial because that court had made an initial tive determination under substan legal principles that the German court believed were compatible with German law and mother had because con sented to the trial court’s exercise ini tial determination. Because the German court did grounds specified not decline to exercise on the 109.764, either ORS 109.761 ORS the trial court would not have had to make an initial determina *14 109.741(1)(b) (c). tion under ORS Finally, juris the trial court have also would lacked (1)(d), Germany diction under subsection because was the (1)(a). children’s “home state” under subsection short, In the trial court could not—at time the it decided father’s motion and order to show exer- cause—have custody cised an to make initial determination any paragraph 109.741(1), is, that under the consequence, jurisdic- UCCJEA. As a the trial court lacked modify custody tion under the UCCJEA to the determina- 109.744(2). tions it had made under the UCCJA. ORS reasons, For two the German court’s rationale for declining to exercise does affect our conclu although compatibility First, sion. the of German law and sensibly Influence will the court’s law could German ingness recognize the initial the effect of trial court’s statutory custody determination, it cannot override the jurisdiction modify that the trial court’s limitations trial court’s Second, mother’s consent to the determination.10 had have no over the initial determination would jurisdiction to make indeed, the had lacked if, effect court (holding App Chester, 172 Or at 469 that See jurisdiction determination. custody subject determi that matter over child by consent, nor can the want of nations cannot be conferred subject estopp matter be remedied waiver or el).1 although jurisdic- summarize,
To
trial court
custody
par-
tion under the UCCJA to make its earlier
enting
determinations,
it did
time
not have
modify
under the UCCJEA to
parenting plan.
determination and
properly
Therefore, the court
dismissed sua
sponte
portion
of father’s motion and order to show cause
sought modify
par-
and the
determination
enting plan
denying
and,
err
likewise, did not
father’s
reconsider
Rauda v.
motion to
that dismissal.12 See
(1999) (holding
Roses, Inc.,
265, 268,
329 Or
plan. requested termination, modification, Father also or of suspension obligations his child support and various con- tempt alleged sanctions for violations of the parenting plan, including recovery expenses of We attorney fees. must analyze those for relief requests separately.
The jurisdictional UCCJEA’s applies primacy 109.741(2). “child custody By determination[s].” ORS defini “ ‘[cjhild tion, custody a determination’ does not include an relating order to child other support monetary or obliga 109.704(3). an tion[s] of individual.” ORS The UCCJEA thus did deprive terminate, not of jurisdiction modify, or suspend that provision the dissolution See judgment. 110.327(1)(a) (a ORS tribunal issuing of this state a support order consistent with laws of this state has continuing order, jurisdiction over the as this support long as Therefore, remains residence of the obligor). trial in dismissing terminate, court erred father’s motions to mod ify, suspend or support obligation. his child
The trial court’s to hold mother con for violations the current tempt and to parenting plan impose sanctions for those violations different presents issues. UCCJEA does not address enforce expressly ment custody made, here, by of a determination as a court of a state that no has longer modify deter 109.744(2). However, mination under ORS UCCJEA does contain extensive enforcement provisions concerning the child by determinations made another state. See ORS 109.774 to statutory ORS 109.827. The definition of “child custody proceeding” “enforcement specifically excludes 109.704(4). under ORS 109.774 to 109.827.” That defi nition suggests that a determination does not include an order existing an determina enforcing tion. That 109.704(3), is bolstered interpretation by “ ‘[cjhild which that a provides custody determination’ means decree other order a court judgment, or for the providing legal custody, time visitation physical custody, parenting or added.) to a respect (Emphasis child.” That definition contempt excludes a logically judgment provide does rather, but, time an parenting merely enforces existing custody determination. Such conclusion unsur modify because the trial court’s loss of prising, logic, existing custody not, does force of *16 did, If it the unenforceable. that determination render the could leave failure to exercise German court’s custody parties determination, a result enforceable with no purpose of the UCCJEA.13 that would serve no further that, and until a It follows unless having jurisdiction by to mod- a count is made determination authority ify to determination, the trial court has only custody contempt proceedings by determi- enforce currently parenting plan exists. that See nation and 33.015(2)(b) contempt (providing includes will- of court “[disobedience of, resistance to or obstruction full ** * (the power judgments”); to ORS 33.025 court’s orders or judi- impose contempt “is an inherent for of court sanctions dismissing Accordingly, power”). the trial court erred cial portions subject of father’s for lack of matter sought to hold mother to show cause that motion and order existing custody contempt determination for ofthe violations impose contempt parenting plan to sanctions. Noth- ing suggest understood to we have said should be impose par- or different trial court is authorized to additional contempt. enting change time a as a sanction for of judgment imposing any sanction would constitute such judgment custody determination, because it would be a child legal custody, physical custody, parenting providing respect parties’ time, to the children. ORS or visitation with 109.704(3). improperly modify judgment Such a would juris- existing custody determination when the court lacked (“ 109.704(11) diction do so. ‘Modification’means to See * * * previous custody determination made after a * * *.”). concerning the same child respect portions of Reversed and remanded seeking termination, and order to cause father’s motion show 109.717, provides: which is consistent with ORS Our conclusion juris- that has determination made a court of this state “A child persons served all who have been diction under ORS 109.701 to 109.834 binds in accordance with ORS with the of this state or notified in accordance laws court, and who have or who have submitted to the 109.724 persons, opportunity is given to those the determination been an to be heard. As except to extent the deter- law and conclusive as to all decided issues of fact added.) (Emphasis mination is modified.” suspension support obliga- modification, or of father’s child judgment contempt, including contempt tion and sanc- tions; otherwise affirmed. dissenting.
EDMONDS, J., though Even father remains a resident of the State provides Oregon and ORS 107.135 courts with con- tinuing subject Oregon’s matter over dissolution marriage judgments, majority interprets ORS 109.744 preclude the trial court’s exercise of modify.1 majority’s father’s motion interpretation I dissent because the contrary legislature’s to the intent as to how operate. the statute should May petition father filed a for dissolution of parties’ marriage County, in Clackamas and mother con- sented to the court’s Pursuant
jurisdiction, parties’ marriage, the trial court dissolved the put parent- awarded mother, of the children to ing plan place. in The trial court exercised its again April parenting plan 1999 when the was modified at request parties. early
Then, 1999, October mother asked a jurisdiction. German court to assume In 1999, December regarding father filed new motions modification of visitation registered equivalent “spe- in the trial court and also of a appearance” purpose cial of in the German court for the sole contesting jurisdiction. hearing the German court’s A August occurred the trial court in 2000 on father’s motion modify. 30, 2000, On October the German court declined jurisdiction. 15, On 2000, November the trial court ruled modify, on father’s motion to while still unaware of the jurisdiction. German court’s decision to decline It found that: 1 through Custody ORS 109.701 ORS 109.874 constitute the Uniform Child (the UCCJEA). They replacement Jurisdiction and Enforcement Act are a for for governing statutes, disputes. mer statutes interstate child Those former 109.930, through repealed by found in ORS 109.700 Or Laws former 649, 55, statutory § ch were referred to as the UCCJA. The other relevant scheme opinion (PKPA), Kidnaping referred to in this is the Parental Act Prevention 28 (1994), legislation governing §USC 1738A which is federal the unlawful removal of parents. children from their custodial (b) (a) Germany; Germany and resident of is a citizen Mother (c) potential are in witnesses state; home the children’s (d) Germany; available forum. court was an the German Sig- exercise therefore declined to The trial court nificantly, Oregon, left that father had court did not find longer connection no that the children longer no availa- evidence was state, or that substantial concerning care. their ble subsequently notice of the German received
Father that it was the decision and notified the trial court court’s Accordingly, only remaining father moved available, forum. B(1)(b) dismissal, the order of to set aside under ORCP (the newly arguing evidence there discovered was dismissal), dis which could not have been German order of considered, and alterna now should be covered but which tively, should withdraw its order ORCP that the court disp B(1)(e) provide parties’ present a forum for the so as to denied the and ruled: The court motion ute.2 109.741, Oregon never had “Under ORS make an ‘initial child determination.’ order 109.744, jurisdiction under ORS ‘continuing to have made con the ‘child determination’ must have been ORS 109.741. If it could somehow be said to sistent with jurisdiction, Oregon initial would have lost that have had 109.744(1)(a) to ORS the time pursuant hearing.”3 this judgment appealed originally dis from the
Father
appeal, also
missal,
later filed an amended notice of
but
provides,
part:
B
ORCP 71
*18
may
party
upon
just,
relieve a
and
such terms as are
the court
“On motion
following
party’s legal representative
judgment
from a
for the
reasons:
or such
(b) newly
by
diligence could not have been dis-
discovered evidence which
due
* *
* * *
*
(e)
F;
it is no
in time to move for a new trial under Rule 64
covered
judgment
prospective application.”
longer equitable that the
should have
that,
might
speculated
have
while the German court
The trial court also
Germany’s
jurisdiction
light
protests against
declined
over the claim in
of father’s
jurisdiction,
probably
if
assumption
hear the matter
of
the German court would
ruling
support
nothing
to
it
do so. There is
in the German court’s
father asked
to
ruling, the German court
evident from the content of its
that bald assertion. As is
jurisdiction
comity
principles
con
of
and the desire to
based its decision
(Edmonds, J.,
jurisdiction.
at
initial
179 Or
662-63
tinue in the court of
See
dissenting).
appealing
judg
from the denial of his motion to set
aside
questions
properly
pres
ment. Both
are
before
This
us.
case
question
continuing jurisdiction
ents a
under circum
jurisdiction
stances where the trial court had exclusive
at the
only
time of its initial determination and where the
other
subsequently
jurisdiction
court that could have
declined
exercised
has
deciding
Our standard
of review
modify
father’s motion to
is de novo on the factual record
19.125(3);Henry and Keppel,
166, 168,
before us. ORS
326 Or
(1997).
.
and matter power parent Also, 107.105. it had the to render ing plan decisions under ORS 107.105. Because the trial complete jurisdiction matter, court had over the ORS 107.135 ordinarily continuing personal subject would ter ment. tional confer mat jurisdiction, power modify prior judg as well as the to its legislature jurisdic
However,
intended
requirements
chapter
supplement
of ORS
those
chapter
might appear
Thus,
107.
while a court
to have
power modify
107.135,
its
under
awards
ORS
may
deprived
operation
be
because of the
chapter
Pennsylvania
Stork,
109. State ex rel
v.
56 Or
App 335, 340,
190,
641 P2d
rev den 293 Or
The difference between the understandings view exists because we hold different legislature’s when it intent enacted the UCCJEA 1999. provides following by The UCCJEA means which court (1) exercises in child it can take matters: initial of child matters under ORS (2) jurisdiction modify 109.741; it can take a determination (3) 109.747; made another state under ORS it can take temporary emergency jurisdiction 109.751; modify already-existing jurisdiction it can exercise proceeding there is a determination when simultaneous *19 state, under ORS in another determination enforce to exercise addition, it can decline 109.757. that the ground on statutes foregoing it has under
that forum more appropriate is the state another scheme, ORS statutory that within Operating 109.761. a has made of this state that a court declares 109.744 the UCCJEA with consistent determination deter- the court until exclusive, continuing jurisdiction has divest it of exist to statutory prerequisites that certain mines is a statute words, ORS 109.744 In other jurisdiction. ini- the court that on continuing exclusive
confers exercises valid tially initial jurisdic- acquired the trial court case,
In this diction was consistent juris exercise of That tion 1998. motion time. Father’s in effect at the was UCCJA, which the first implicates December filed in modify, 109.744. ORS and ORS of the UCCJEA
time the provisions 109.744 provides: 109.751,
“(1) a in ORS provided Except as otherwise custody determi- made a child state that has court of this has exclu- or 109.747 with ORS 109.741 nation consistent until: the determination sive, continuing jurisdiction over “(a) that neither of this state determines A court per- a the child and parent, and one nor child, the child nor connection with parent as a acting son longer avail- is no substantial evidence and that this state care, protection, the child’s concerning in this state able relationships; or personal training and “(b) of another state or a court A court of this state any per- child, parents the child’s determines in this state. reside presently do not acting parent as a son “(2) made a child that has A court of this state exclusive, continuing does not have determination modify that determina- may under this section an initial to make has only if the court tion under ORS 109.741.” determination continuing exclusive concludes that majority court under in the trial exists longer no that are 109.741 of ORS of the provisions
109.744 because in part: provides, ORS 109.741 in ORS 109.744. referred to “(1) Except provided 109.751, as otherwise in ORS court of this has state make an initial child only if: “(a) This state the home state ofthe child date of the commencement of the or proceeding, was the home state the child within six months before the commence- of the proceeding ment child is absent from this a parent person acting but as a parent continues *20 state; in live this “(b) A another state does not have (l)(a) section,
under subsection ofthis aor court ofthe home state of the child has declined exercise on the ground that state more appropriate this is the forum under 109.764, ORS 109.761 or and:
“(A) and parents, The child the child’s or the child and least parent person at one or a acting parent, as have a significant connection phys- with this state other than mere presence; ical and
“(B) Substantial evidence this con- available state cerning care, the child’s protection, training personal and relationships; “(c) All having courts under subsection
(l)(a) (b) or jurisdic- of this section have declined exercise ground tion on the that a court of this is the more appropriate forum determine the of the child 109.764; or or 109.761 “(d) any No court of other state would have (c) (b) specified (1)(a), under criteria in subsection or section.” this
As I understand it majority’s holds reasoning, trial court does continuing juris not have exclusive diction under 109.744 ORS because the trial court would 109.741, have had under had ORS ORS 109.741 effect in been in 1998. It interprets language “a court of this state had made a child custody determination con sistent with ORS 109.741” in ORS to require compli 109.744 ance with the ORS requirements of 109.741 before exclusive However, could continue in the trial court. when trial court made its initial determination 109.730(1)(b) jurisdiction under ORS of the UCCJA former by had not been ORS and, replaced if ORS 109.730 former continue.4 would still modify clearly 109.741, jurisdiction of the “consistent ORS interpretation The majority’s point ORS 109.744 is the from language pivotal 109.741” The reasoning proceed. which and its ultimate result its restrict interpretation continuing effect of its is to exclusive the initial determination had as jurisdiction to cases which grounds jurisdiction specified its basis one of Thus, by that the majority presumes legislature, 109.741. UCCJEA, juris intended to undo the grant adopting diction had authorized courts to exercise legislature (c) 109.730(1)(b), or (d), and ORS 107.105. former one of two majority’s is but interpretation intent as legislature’s reasonable possibilities regarding the text and context of ORS 109.744. The by demonstrated being by harmony, word “consistent” connotes as “marked steady showing no regularity, continuity throughout; sig- or contradiction,” “marked unevenness, nificant or change, agreement concord,” showing no “coexisting conflict, inharmonious, noteworthy or contradic- opposing, tory trends.” Webster’s Third New Int’l qualities 1993). ed In the context ORS Dictionary, (unabridged words, in accordance 109.744, the “consistent with” suggest, *21 that a determi- ordinary meaning, custody with their it nation in the time was that is valid under the law effect at made be deemed “consistent with” 109.741 it is will ORS if in with not or inharmonious ORS 109.741. It is conflict 109.744, that the did important legislature to note ORS not use the “a court of this state that made a child cus- phrase tody ORS 109.741” or the “a phrase determination under that court of this state made a child determination in ORS Because compliance legislature 109.741.” the chose 109.730(1)(b) provided: Former ORS “(1) competent of this is to decide child mat- A Court state which by initial or modi- ters to make a child determination has if: decree fication “(b) state best the child that a of this assume It is in the interests of court child, parents of or the child and at because the the the child and contestant, state, and there least have a connection with this is one present concerning child’s state evidence the or available in this substantial care, training personal relationship.” protection, future language use “consistent with” when could used language requiring provisions other adherence to the of ORS legislature 109.741, it follows that meant “consistent something requiring with” to mean than other that the initial grounds juris- has, basis, as its one of the under diction ORS 109.741. why majority’s interpre
There are other reasons only interpretation tation not the reasonable of ORS 109.744. ORS 109.741 was not effect at the time that the validly exercised under the UCCJA and provides continuing jurisdiction ORS 107.105. ORS 107.135 modify determinations made under 107.105. It fol interpretations majority’s lows from the that in cases where a validly state initial on assumed the basis offor (c) 109.730(1)(b), (d), legislature mer ORS intended to continuing jurisdiction by that divest the enactment approach anomaly of the That UCCJEA. results ground sig in 1998 in this existed case on the of a nificant connection/substantial evidence under former 109.730(1)(b), by operation ceased exist but law by ORS 109.744 That December 1999. view of the law requires, effect, awkward, an retroactive reevaluation of concededly, jurisdiction, through was, what law valid the lens ofa It common not effect at the time. is at odds with sense legislature that the would have intended that a court that validly acquired has initial to determine child parenting plan issues lose will modification jurisdiction, change in the because of a circumstances of parties subsequent children, and the but because of a sum, said, amendment to the law. In it cannot be for all majority’s interpretation reasons, those of ORS only 109.744 is the reasonable one. susceptible
When a statute is
to more than one
history
interpretation,
legislative
reasonable
resort to
is nec-
history
essary.
legislative
legislature
shows
adopt,
verbatim,
intended to
almost
uniform
draft
proposed
UCCJEA
Conference of Commis-
National
(NCCUSL).
sioners Uniform State Laws
are
Thus, we
*22
rely
on both the
and the
on
NCCUSL commentaries
guidance
interpretation.
the UCCJEA for
See
ex rel
State
(1993) (relying
v. Mason,
Torres
315 Or
for the Its stated UCCJA. the PKPA and is to resolve conflicts created between ways. the UCCJA. It did so in two designed adopt
First, the UCCJEA was preference.5 Thus, in state cases where PKPA’s home having expressed an interest in known, home and has any jurisdiction, home must defer nonhome state prior case, no state. In a “clean slate” where under both made, the home state will win has been substantively Nothing commentary an intent the UCCJEA shows by changing goals of “state” to include alter of the UCCJA the definition the overall foreign nations.
the PKPA and the UCCJEA. That is the first of the two over- arching policy goals that the UCCJEA was intended to effectuate. importantly
Second, and more case, for this the continuing jurisdiction” UCCJEA conferred “exclusive, on jurisdiction. According the state that exercised initial to the legislative history, phrase continuing jurisdic- the “exclusive, particular meaning. explained by tion” has a As NCCUSL the phrase means: state once jurisdiction takes child a dis- “[i]/’a
pute, jurisdiction state, long retains so by as that its own determination, maintains a connection with the disputants disputants or until all away have moved from contrast, that state. In the jurisdiction UCCJA allows shift if ground the initial for taking jurisdiction ceases to Thus, jurisdiction exist. if a state takes a over child dispute child, because that state the is home state of the the subsequently state, establishes a new home jurisdiction state, can shift the par- new home even if one original ent remains the child’s home state. The jurisdiction UCCJEA would not allow the shift this fashion, keeping original it in the home state so as long the parent Custody remains there.” Uniform Child Jurisdiction Comment, 649, and Enforcement Act 202 ULA § 674 added).6 (emphasis continuing, jurisdiction” Thus, “exclusive as used in the operates exclusivity UCCJEA, is a term of art that to confer jurisdiction jurisdiction of the on state that first exercises jurisdic- a valid basis. That state continues have exclusive jurisdictional competing tion over claims under subject UCCJEA, to the discretion to defer to another state. That means continues even another later if gains continuity home state status. The of as a goal priority.7 by trump is intended UCCJEA to home state explanation Oregon Legislature adopted This was before the when it 1999, Ex F Testimony, 789, Judiciary Committee, See April UCCJEA. Senate SB (statement Brown); Testimony, Committee, Judiciary of Kate Senator House SB 789A, May 27, 1999, Ex 6. says, majority “Oregon’s jurisdiction simply could be if ‘sole’ jurisdiction!.]” could exercise ‘home state’ 179 Or at 640. What the however, majority ignores, operates is that ORS 109.744 as exclusive conferral changes history clear, the to the makes the above
As to divest a not intended UCCJEA were UCCJA made original validly exercised its if it had state of legislature antithesis: Instead, intended the validly jurisdiction in child exercised a state that dispute until one of statu- to have continues tory met. for loss of in ORS 109.744 criteria understanding policy underlying UCCJEA That has The trial court exclu- in this case clear. makes the answer continuing jurisdiction its because under ORS 109.744 sive with” was “consistent 1998 child authority Germany’s goals “home to exercise 109.741. deprive ORS 109.741 does not state” grant continuing jurisdiction.” “exclusive, trial court of the *24 jurisdiction so Rather, 109.744 is intended to honor that long ground its initial is consistent with as the commentary purposes. to the UCCJEA makes clear: As the State, orig- home acquired “Even if the child has a new continuing jurisdiction, inal State decree retains exclusive general so of the ‘substantial connec- long requisites as * * * met.” Child provisions tion’ are Uniform Comment, Act Custody Jurisdiction and Enforcement 202§ (1997). 9 ULA continuing jurisdiction exclusive, Because the trial court has 109.741, it lose consistent with ORS could only child, if nor it determined that neither 109.744 acting parent, person and as the child one nor the child a and any parent significant of a connection with State have concerning that evidence the child’s and substantial relationships protection training personal no care, and is longer available.8 mining the court does not exercised in a child’s exclusive so tion, This Enforcement The whether another state State “The training section majority on continuing jurisdiction and there a court that long makes §Act 202 reach its says, as the personal ‘home state.’ is substantial conclusion validly Comment, “the UCCJEA child, continuing jurisdiction might relations.” Uniform a exercises parent, ” have of the about the 9 ULA evidence Or original expressly initial 649, 674 person App concerning exclusivity jurisdiction. Child at 640. decree state is exclusive. acting (1997). prefers As the Custody the child’s of Also, as original decree jurisdiction by deter- (Emphasis commentary a Under the parent Jurisdiction says care, protec remains added.) that our statute, states: to be State * * * and
The also makes majority a factual determination under ORS I 109.744 with which The disagree. majority says:
“In its dismissal, order of the trial court found that the chil dren have never resided in Oregon and that all of the wit nesses resided in information concerning the children’s welfare Further,
Germany. in its order denying reconsid eration, the trial court that stated it did have exclusive continuing jurisdiction 109.744(1)(a), conclu depended sion that having the court found that the chil dren did not have connection to this state and that substantial available here. Father concerning evidence their was not welfare challenge findings,
does not those our review the record they beyond discloses that are reasonable dispute.” 179 Or at 639.
The trial court’s findings that mother is a citizen and of Germany, resident that Germany is the children’s home state, and that many potential witnesses reside in Germany are not determinative whether has 109.744(1)(a). been correctly lost under ORS urges Father that it does not follow from fact is the home state of mother and the potential children witnesses also reside there the children no significant connec tion to Oregon. majority’s view of the evidence that is available to the trial court and contrary to the myopic intent drafters of the UCCJEA.
The commentary to the UCCJEA states: *25 “The of significant determination connections has been changed [from the to language UCCJA] eliminate the ‘present or jurisdictional [of future care.’ The determination significant whether a state has connection/substantial evi- jurisdiction] by dence should made determining be whether is there evidence the the in State court to make sufficient for might an That determination. evidence informed ” past ‘present relate the as well to the Uni- as future.’ Custody Child form Jurisdiction and Enforcement Act 202§ added). Comment, (emphasis 9 ULA 674 understanding “necessarily preference.” ] would Id. As between contravene! jurisdiction, competing policies continuity the the or home state UCCJEA continuity higher priority. Commentary quoted chooses as the See at 179 Or at (Edmonds, J., dissenting). in children lived that the
The record shows parties litigating were while father for four months with their they disputes. During in time, were enrolled creating probability and school, exist that records contacts residing while with on their welfare comment the children underwent record also shows that father. The August psychological Dr. in with Richard evaluations Oregon psychologist Those Lazere, at the time. evalua- an their circum- information about revealed tions report con- care. His also while under their mother’s stances expressed the children’s information about tains relevant custody. Apparently, regarding children made wishes per- drawings during the that demonstrate their evaluations ception addition, there is custodial circumstances. In their by psy- the children were evaluated another evidence that chologist Oregon, in when Dr. Lazere became unavail- while able. record refers to a court-ordered
The also regarding father in mother and done evaluation testimony presumably Furchner. Furchner’s Jean significance ongoing it the court a more has because affords history parties understanding complete and of the relationship subsequent their their context with conduct. par- showing contains evidence that father’s record also multiple Oregon, ents, children, contacts who live during stay the children’s both They regarding wish to offer evidence the United States. attempts prevent deceptive them mother’s conduct parties’ having children, as as the from contact with well custody. regarding son’swishes Oregon, wife, current a resident of is
Father’s parties’ daughter godmother has had substan- also including talking with them children, tial contacts with the by telephone. lengthy periods has also known of time She family long appears to entire for a time and have been Finally, exists in this state mother’s best friend. there and subse- an initial court record of quent that are relevant modification ofthat determination modify. sum, the determination of father’s motion wrong argues majority that insufficient evidence when *26 660 Germany relating parents
exists outside and the chil- great dren. There is a deal available, ofevidence and while an Oregon permissibly court could decline on this record, it be cannot held as a matter of law to have lost the acquired chapter 107. majority
The reasons from several non-UCCJEA cases that address the amount of evidence that should be present in order to conclude that “substantial evidence” App commentary exists. However, 179 Or at 641-42. the UCCJEA shows that is intended to continue relationship until “the between the child and the State with continuing jurisdiction exclusive, becomes so attenuated that longer significant the court could no find connection or sub- Custody stantial evidence.” Uniform Child Jurisdiction and § Enforcement Act (emphasis Comment, 649, 9 ULA 674 added). commentary Also, the states that “the jurisdictional by determining determination should be made whether there is in evidence the state for the court sufficient (emphasis to make an informed determination.” Id. added). agree majority “physical pres
I with the that the period ence” of the children for a three or four month in Oregon by enough significant itself to establish a con 109.744(1)(a). 109.741(3). nection under See ORS How majority support argu ever, the cases cited in of its significant ment that was lost for lack of a readily distinguishable connection are case, from this where Oregon physical there are more connections to than the mere presence parent. Weathersby, In 620, of one Stubbs v. 320 Or (1995), adoptive 4, n P2d 991 mother went to Washington brought Oregon from an infant who Washington born in been back to in November 1989. petition adoption Then, she and her husband filed a for January Oregon. 30,1990, The birth mother was not a res Oregon, adoption pro ident of nor did she ever consent to ceedings Oregon. comparison, In both father and mother Oregon’s jurisdiction consented to case, in this there have prior adjudications been court, the trial and there is psychological available substantial information parents about the Washington and the ex rel children. State State Bue, 477, 480-81,
v.
117 Or
Moreover, as a matter of in cannot be that the children have never resided fact they finding significant that no connection treated as to the state. The “home have “significant statute,
state” and the separate grounds jurisdiction are connection” statute for Compare UCCJEA, UCCJA, the and the PKPA. under 109.741(1)(a) (1)(b)(A): also ORS ORS See former 109.730(1)(a) (1)(b). Clearly, under either the UCCJEA jurisdiction UCCJA, can have over a child even or the a court that the court is not a court of the home state. It follows when the finding majority in error when it conflates is Germany statutory req is the children’s home state with they significant Oregon. In no connection uisite have 109.744(1) continuing summary, exclusive, ORS confers court, on the trial and there is from no basis has which to conclude that it been lost. other alternative for loss of (b) 109.744(1) expressed is in of the statute.
ORS subsection provides It a loss of when child and parents presently in the The short child’s do not reside state. 109.744(1)(b) inquiry to an is that father answer presently this state. and the resides in Because that fact children to this connection continuing jurisdiction here, available substantial evidence (1)(b). 109.744(1)(a) either We has not been lost under or 109.744(1) go con no further than ORS to reach the have jurisdic continuing exclusive, has clusion that the trial court tion, consis because its exercise 1998 was goals ORS 109.741. tent with (2) analysis
Even if the somehow reaches subsection major- 109.744, it leads to a different result from the of ORS ity’s making requires the of a new conclusion. Subsection jurisdictional determination under ORS 109.741 when there exclusive, is no continuing jurisdiction. The majority says only that the subsections ORS 109.741 that apply could are (1)(b) or (1)(c), sections that neither would give Oregon It explains * * * state,’ “[because] children’s ‘home trial court could asserted under either (c) (1)(b) subsection unless the German declined ground on the that it was an inconven forum, 109.761, ient or because mother had engaged conduct, unjustifiable ORS 109.764. Neither reason was cited here.” 179 Or at 644.
I with the disagree above conclusion because juris 109.741(1)(b). diction exists under ORS The German court order gave reasons for following declining jurisdiction: previous proceeding
“[I]n view of the regarding parental pending custody pro- the USA and view of the Court, ceeding recog- Circuit which can be law, nized under the [German Court] German considers a *28 impermissible.” decision to be The court constitutes, substance, German order a decision to defer jurisdiction for reason that ORS 109.761 envi 109.741(1)(b) sions and that ORS contemplates. See also ORS 109.741(1)(c). order, The statute, of the language is a declaration that “is an inconvenient forum under the circumstances and that a court another is a of more Germany, forum.”9 Because appropriate children’s home state, has declined jurisdiction on inconvenient forum grounds, and there exists a significant connection this majority says support” “the record does not the view that “the German an considered the factors relevant to inconvenient forum determination.” 179 Or n 10. are at 645 Those factors found in ORS 109.761. The German court’s (1) deferral of shows that it considered: existence of divorce (2) courts; County decision in to the Clackamas the children’s visitations United (3) longer weeks; past States for than mother’s travel to the United in the (5) States (4) decisions; participate pending proceedings Oregon; to in court the fact given opportunity participate that mother was an to in the in the modification trial (6) court; (7) citizenship citizens; the children’s dual as both German and American (8) court; public principles policy; of the of the trial breadth agreement prior mother’s the divorce modification done in view, considerations, Oregon. my by those listed the German court its written 109.761(2)(b), order, very (e), (f), consideration in ORS show the factors listed (h). (g), and juris here, state and there is substantial evidence available 109.741(1)(b). diction also exists See also ORS 109.741(1)(c). necessarily It follows that the trial court also jurisdiction modify original judgment its 109.744(2), modify judgment which authorizes a court if “the court has to make an initial determination added.) (Emphasis under ORS 109.741.” policy weighs There is one more factor that in favor interpreting ORS 109.744 to authorize in this legislature case. The was aware of ORS 107.135 when it 109.744(1). gives enacted ORS ORS 107.135 a court continu- ing jurisdiction initially once it has acted in a child supplement case, and ORS 109.744 is intended to the author- ity existing under ORS 107.135. Where there are several subject, by statutes that address the same we are instructed legislature give to construe them as all, so effect to if possible. majority’s interpretation ORS 174.010. The of ORS 109.744(1) trumps jurisdic- in this case the continuation of contemplates. tion that “continuing However, ORS 107.135 if the words and exclusive consistent with ORS express 107.741”in ORS 109.744 are understood to an inten- tion that an exercise of if valid it honors the goals chapter given of ORS effect is to ORS 107.135 as 109.744(1). well as ORS my majority’s
The difference between and the inter- pretation of ORS 109.744 is to the outcome of this practical majority’s holding case. The effect of the is that the precluded exercising trial court is as a matter law from policy UCCJEA, That result violates the emphasizes cooperative which exercise of discretion multiple clear, state courts. As the statutes make the courts guided by are to be the UCCJEA but are to exercise discretion jurisdictional based on the enumerated factors and to reach *29 conclusions are the best interests ofchildren. The trial court’s decision not to exercise in this case is (1) not, error because: the trial did not, court and could 109.744(1) findings requires record, this make the that ORS continuing jurisdiction; to divest itself of if even resort 109.744(2) grounds exercising occurs, to ORS two initial custody jurisdiction under ORS 109.741 existed in modify authorizing the court to 2000, thus November continuing jurisdiction.10 judgment even in the absence of light happen question The becomes what should has review. The German court our de novo standard of of declined correctly juris- jurisdiction, and father asserts that Oregon the time, in the trial court. At this diction continues jurisdiction, only and it con- that has exercised initial Ultimately, what is at stake here tinues to have purpose The overall ofthe is the interests ofthe children. best appropriate, forum is con- one available UCCJEA afford holding. parties litigate by majority’s The chose to travened marriage in the dissolution of their State the issues continuing Oregon, cus- afford whose laws tody issues. What an unfortunate result and visitation parties majority of their choice of offers to the because they “legal limbo,” forum, are left in as their initial any litigate their current dis- available forum to without putes. concept juris- disputes. The Courts exist to resolve disputes by is intended to facilitate the resolution diction they ruling directing A should resolved. that results where be very pur- parties in pose forum for the frustrates no available exist. for which courts reasons, I dissent.
For all of the above joins J., Linder, in this dissent. that, commentary makes clear if a court declines The UCCJEA properly in another court: it believes it is more vested
because may simply do leave the case in dismiss the action. To so would “The court stay parties in the the case and direct the to file limbo. Rather the court shall is also to be the more convenient forum. State that has been found might any appropriate. impose other conditions it considers This authorized to necessary during temporary orders the time include the issuance of State; designated dismissing proceeding the case if the cus in the commence State; resuming jurisdiction tody if a proceeding in the is not commenced other Custody Uniform Child Juris refuses to take the case.” court of the other State (1997). 649, 683 Comment, § 9 ULA and Enforcement Act 207 diction