*1 94
EUGENE PASLOV, JOSEPH Respondent, Petitioner v. COX,
KATHLEEN M.
Respondent Appellant. No. 02-656. February Briefs 2003.
Submitted on Decided November 2004. MT 2004 325. Mont. 324 94. P.3d 1025. *2 Dale, Nygren, Milodragovich, T. Appellant: For Christian P.C., Binney, & Steinbrenner Missoula. Shanahan, Waterman, Respondent: Gough,
For Ronald F. Waterman, & Johnson Helena. Opinion
JUSTICE REGNIER delivered the Court. appeal custody dispute This Kathleen M. Cox ¶1 (Cox) involves between (Paslov) son, Eugene Joseph regarding Paslov their minor courts, Dylan. At the two the Third Judicial appeal, time of Court, Montana, Court of County, High District Powell Samoa, conflicting custody American had rendered determinations 2002, 22, appeals July Cox from the order of regarding parenting plan Third Judicial District Court which enforced an earlier High 11,2000, custody by order issued September issued on over 17, affirm. July of American Samoa on 2001. We Court on presents following appeal: issues Cox ¶2 failing recognize erred in 1. Whether the District Court ¶3 custody by High of American Samoa. order entered Court modifying original 2. Whether the District Court erred by parenting plan Oregon awarding issued the State of sole Dylan Paslov. presents cross-appeal: Paslov issue on 11, timely appealed September Whether Cox the District Court’s 1, Appellant’s we order. Because affirm on Issue is not 2 or necessary Appellant’s Respondent’s reach either Issue issue on cross-appeal.
FACTUAL AND PROCEDURAL BACKGROUND February 5,1991, on Paslov Coxwere married in Nevada their Oregon. marriage, later moved to At time of had two previous marriage, older children from a Diedre and Warren Enteron. 8,1994. together, Dylan, and Coxhad one child born November Paslov on March 1999. The final parties Oregon were divorced granted parenting plan Oregon issued sole month Dylan provided pay per $300 to Cox and that Paslov agreed Additionally, Oregon granted parties’ support. have parenting provided regular that Paslov plan paternal his alternating weekends with visitation *3 Nevada, City, pay with to for air grandparent’s home in Carson Paslov by an transportation (either Dylan, accompanied for who would be adult Warren). Cox, was to parenting Paslov have time Deidre birthday, alternating holidays on and for one Dylan Dylan’s with period by after Cox of the time during notifying the summer month year. May 1 of each and, divorce, to Nevada sometime in After the Paslov moved back
¶8 1999, Montana, anticipation to Lodge, fall of Cox moved Deer the McGee, Butte following the summer to Don resident. marriage her notification, which was without Cox Paslov asserts this move made case, parties the ongoing relations between Whatever the denies. difficult, Dylan Paslov and was proved and visitation between attempt deny was an to his Paslov Cox’srelocation sporadic. asserts pay to for Dylan. to Cox counters Paslov’s failure opportunity visit any City the reason for visitation airfare to Carson was Dylan’s difficulty Paslov have encountered. Montana, Helena, attorney an then to and secured Paslov traveled
¶9 for visitation time parenting plan to the more to initiate modification in the Third Judicial District 3,2000, On Paslov filed Dylan. April Oregon parenting recognize register to petition Court The parenting plan. to plan, Oregon a motion amend custodian, but that Paslov requested Dylan’s Cox remain sole motion expanded granted be visitation with 18, 2000, stipulated Cox May response petition, On to Paslov’s Oregon decree recognize register the District Court could jurisdiction over parenting plan final and assume
of dissolution and However, objected to Paslov’s she parenting plan proceedings. day, plan. request parenting for modification Paslov Cox requiring an ex motion granted parte District also Butte, Dylan a weekend visit in Montana. produce for Court, 22, 2000, noting that both Cox and May On District Montana, Dylan and that had residing Lodge, in Deer Montana, in the an in which significant contacts State of issued order recognized registered Oregon decree of dissolution parenting plan accepted jurisdiction valid It also in all as a decree. Dylan, including involving matters and visitation amending parenting plan Paslov’s motion for and all other subsequent actions. modify parenting plan pending While Paslov’s motion was Court,
before the relations between Cox and Paslov worsened. District receiving was Among things, angry other Paslov because he was Dylan, was phone angry his calls from and Cox was Paslov insisting upon parent-child his contact for the summer. court-ordered 16, 2000, contempt On June Cox filed a motion hold Paslov Then, pay in child June support. failure thousands dollars days up month-long for his pick Dylan four before Paslov was to visitation, publicly had a heated argument summer Paslov and Cox argument, During in Butte. this Cox asserts Paslov Wal-Mart ruin her upcoming wedding, threatened to her stalk her for the rest of life, her and June Paslov and harm both her children. On parte parenting plan regarding filed an ex motion enforce visitation, was parent-child subsequently granted. summer which motion, Following parte ex public scene Paslov’s petitioned temporary Bow Peace for a the Silver Justice of the (TRO), restraining granted. the order was order was that a immediately rescinded Justice Court learned almost when *4 pending in District Court. proceeding custodial was for Ex Parte Order Parent-Child Cox was never served with the ¶14 the visit; nor she notified of regarding the summer was Contact left not because she Montana with rescinded TRO. She was notified Samoa, homeland, asserting to her Dylan and returned American left safety concerns for herself and her children. Cox without notice to Court, found, either she and Paslov Paslov or District was did in any parent-child not receive contact the summer of 2000. 1,2000, August pending request On Paslov amended his motion to ¶15 custody of Paslov Dylan. requested he receive sole also Cox’scontact visitation, undergo Dylan supervised be restricted to Cox a with evaluation, pay attorney Cox and psychological Paslov’s fees costs. September 7,2000, hearing On District Court conducted a on change was petition Dylan’s custody. Paslov’s not in attendance despite hearing, being hearing at the served notice of both her 11, 2000, September last On by publication. known address granted petition District Court awarded Paslov’s sole Additionally, the ordered Cox have no parent-child Paslov. court to, until Dylan, successfully contact with unless and she submit complete, psychological full evaluation. Once evaluations were report complete, therapist provide would written District for Cox and regarding a recommendation visitation between what, any, parent-child so the could if contact court determine fact, Dylan. specifies with In the court order that both Coxshould have participate psychological evaluations order for parents complete to have and well-rounded information. The court also support obligations, terminated Paslov’s child awarded Paslov all attorney Additionally, costs. the court ordered that fees and law searching efforts in agencies enforcement were to continue their Dylan, at that Cox and as their whereabouts were still unknown time. 22, 2000, Cox an action in the American On November filed 11, 2000, September order of the system modify Samoan court sought designated as the exclusive custodian District Court. She to be 5, 2001, High Court of American Samoa April On which both Cox and Paslov petition conducted trial Cox’s Paslov contested the personally appeared counsel. recognize the District Court’s requested Samoan court and parenting plan. over 17,2001, entered its July High On Court of American Samoa order, over the matter and concluding it had
opinion with his residing interests would best be served Dylan’s 11,2000, Court’s order September It modified the District mother. Cox, supervised visitation custody to with reasonable granting sole decision, Samoan but initially appealed Paslov rights Paslov. appeal. subsequently withdrew his Court to filed a motion District On March Paslov
99
date,
custody
the same
11, 2000,
order. On
September
enforce its
Court to
filed a motion District
also
Dylan’s paternal grandparents
a motion
responded
Cox
contact with
grandparent
enforce
jurisdiction over this
Court had
the basis that
Samoan
quash
on
2002,
22,
arguments
and oral
July
On
after briefs
matter.
submitted,
granting
an
both Paslov’s
the District Court issued
order
11, 2000,
custody order and
September
enforce its
motion to
motion for
visitation.
grandparents’
grandparent
increased
entered into
pending,
motions were
Cox
While Paslov’s
¶20
an
County Attorney’s
regarding
office
negotiations with the Powell
Interference,
felony, pursuant to 45-5-
Parenting
§
of
a
charge
earlier
634, MCA,
negotiations
of
from
These
for her removal
Montana.
22,2002,
prosecution agreement which
resulted in a March
deferred
year
a
any
period
not
Montana laws for
of one
agreed
Cox
violate
in this matter.
and to
all valid court orders issued
follow
20,2002,
Control with
Supervisory
On
Cox filed a Writ of
August
recognize the
Court, alleging
failing
this
the District Court erred in
Court American Samoa
issue modified
jurisdiction
High
of
of
custody
which awarded
to her. We denied
writ
parenting plan
remedy
an
for the error
grounds
appeal
provide
adequate
an
would
10,2002,
alleged by
appeal
Cox. On
Cox filed a notice of
October
July 22,2002,
District Court’s
enforcement order. Paslov filed motion
motion,
untimely.
as
We denied Paslov’s
appeal
dismiss
beyond thirty days
Cox’s
filed
after the
concluding
appeal, although
order,
5(c),
Rule
timely
M.R.App.P.,
was nonetheless
filed under
never
entry
judgment
because a notice of the
of
had
been served.
OF REVIEW
STANDARD
findings
fact to determine whether
We review district court’s
of
(1996),
Marriage
Shape
In re
276
findings
clearly
are
erroneous.
of
(citation omitted).
We review a
Mont.
916 P.2d
district
conclusions
law to determine if
court’s
court’s
of
Shupe,
DISCUSSION Oregon correctly District Court assumed custody Dylan. sole Parenting Plan and modified it to award Paslov subsequently asserted over the The Samoan Court Dylan. As custody Montana modification awarded sole Cox, conflicting of these maintained the resolution Kidnaping the federal Parental must be decided under determinations 1738A, (PKPA), which sets forth Act1 28 U.S.C. Prevention competing in face of decisions jurisdictional guidelines that under the PKPA: Montana does states. Cox asserts sister and American custody dispute, have exclusive over decision. rendering properly Samoa exercised never lost argues the District Court Conversely, Paslov this matter. over in this matter with grievously have acted parties While both us is abuse, the case before stalking kidnaping,
assertions
question in this
matter. The essential
simply
jurisdictional
one of a
*6
custody
to make a
courts had
is which of two state
case
the Samoan
the District Court or
involving Dylan:
determination
custody determinations.
Court,2
opposing
which have rendered
(UCCJA) has been
Custody Jurisdiction Act
The Uniform Child
states,
Virgin
District of Columbia and
fifty
in all
adopted
139,
25, 12,
MT
314 Mont.
Drollinger,
¶
2003
¶
Islands. Stoneman v.
remedy th[e]
“to
12,
997,
12. The UCCJA was created
64 P.3d
¶
and
and the rule of ‘seize
self-help
of affairs where
intolerable state
Sherman,
to Child
Legal Response
&
The
Lansing
run’
....”
prevail
(1983)
UCCJA,
16,19
Commissioners’
(quoting
Snatching, 7 J.Juv.L.
(1979)).
(ULA)
1999,
112
In
Note,
Annotated
Prefatory
9 Uniform Laws
Custody
Child
adopted the Uniform
Legislature
the Montana
(UCCJEA),
repealed
Enforcement Act
Jurisdiction
Stoneman,
14.
law.
¶
in Montana
provisions
the UCCJA
replaced
been,
they
have
the uniform enactments
helpful
However
level,
parental
the state
while
large part
at
operate
nonetheless
interstate in
essentially
is
prevent
they
designed
are
conduct
the PKPA to
Thus,
enacted
government
the federal
nature.
of
continuing problems
addressing
national standards
establish
must
Full faith and credit
snatching.
and child
shopping
forum
of
made
a court
determination
custody
to a
ordinarily
given
be
under
exercised
appropriately
if that court
another state
(1993),
1738A(a);
261
Erler v. Erler
See 28 U.S.C. §
PKPA standards.
916 P.2d
12, 15;
part: to child given faith and credit
§ 1738A. Full determinations.
(a) every of State shall enforce authorities appropriate terms, modify provided as except according to shall (h) section, (f), any of this (g), subsections consistently made determination determination or visitation by a court of another State. provisions of this section (c) by a made A or visitation determination if—only of this section provisions consistent with the State is State; the law of such court has such met: one of conditions is (i)
(A) the child on the date of such State home State of (ii) had been the proceeding, the commencement the date child’s home State within six months before commencement proceeding and the child is absent from retention a contestant such State because his removal or reasons, live or for other and a contestant continues to in such State;
(B)(i) appears that no other State would have *7 (ii) (A),and it is in the best interest of the subparagraph under (I) a jurisdiction child that court of such State assume because parents, or the child and at least one the child and his contestant, significant connection with such State other have (II) State, there is physical presence than mere such concerning evidence available such State substantial care, training, and present protection, child’s or future personal relationships; (i)
(C) such physically present child is State (ii) abandoned, necessary or it is in an child has been child, sibling, or the child because emergency protect subjected to threatened with parent of the child has been or abuse; or mistreatment
(D)(i) jurisdiction State would have appears no other (B), (C), (E), (A), or State has another subparagraph that the State jurisdiction ground to exercise
declined appropriate is the more forum to jurisdiction is in issue whose (ii) child, it is in custody or visitation of the determine the that such court assume interest of the child the best jurisdiction; or
(E) continuing jurisdiction pursuant the court has (d) of this section. subsection
(d) child court of a State which has made a jurisdiction of a consistently with visitation determination custody or long requirement as the this section continues as provisions of (c)(1) to met and such State this section continues be subsection any child or of contestant. remains the residence of the (f) may modify a determination of A court of a State State, if— of another of the child made a comb same (1) to make such a it has determination; and
(2) or it longer jurisdiction, State no has the court of the other modify such exercise such has declined to determination. any not exercise A court of a State shall
(g) commenced custody or visitation determination proceeding for a of another State in a court during pendency proceeding of a exercising jurisdiction that other State is where such court of section to make provisions of this consistently or visitation determination. (c)(1),(c)(2),(d), (f), of the 1738A(a), (g). provisions These
28 U.S.C. § custody decree only modify the may state PKPA that a second provide circumstances, states though limited even both very the first state in interest in the matter. may have an (f) PKPA and key provision modification is the Subsection a second state apply. Before test for courts two-pronged
creates a have state, state must the second modify decree ofthe first 1738A(f)(l); laws, 28 U.S.C. § under its own “continuing” both given up jurisdiction, have lost or first state must 1738A(f)(2). state has neither If the first 28 U.S.C. “pending.” to ascertain no need there would be jurisdiction, refused lost nor Thus, authority jurisdiction. to assume has the second state whether jurisdiction. of Montana’s question we turn to Parenting Oregon Plan Jurisdiction over Montana’s purposes may assume of Montana The State
103 conflict arises when a modifying child determination a UCCJEA, under involving disparate decree from sister states a MCA, 40-7-203, provides: codified § modify Except as otherwise determination. Jurisdiction modify 40-7-204, a child a court of this state provided state unless a by a court of another custody determination made to make an initial jurisdiction this state has court of 40-7-20l(l)(a) (l)(b) determination and: under or (1) has longer it no court the other state determines exclusive, or that a court continuing jurisdiction under 40-7-202 40-7-108; or ofthis be a more convenient forum under state would determines state or a cotut of the other state a court this child, a tuny person acting as parents, that the child’s and in the other state. parent presently do not reside 40-7-201(l)(a) MCA, 40-7-203, MCA, (l)(b), Section and referenced § provides: custody jurisdiction. as Except
Initial child otherwise 40-7-204, this has make provided a court of state if: only an child determination initial (a) this state the home of the child on the date of is state proceeding commencement of the or was home state of proceeding child the commencement ofthe within months before a or parent person and the child is absent this state but from state; acting parent as a continues to live in this (b) have under a court another state does not (l)(a), state of the child has subsection or court of home ground declined to exercise on the state 40-7-109, or appropriate forum under 40-7-108 and: more (i) parents, the child’s or the child at least significant or a as a have a parent person acting parent, one physical presence; than connection with this state other mere (ii) concerning in this evidence is available state substantial care, relationships training, personal protection, the child’s sum, UCCJEA, made modify a determination In order state, must another court have by a Montana 40-7-20l(l)(b)(i) (ii), MCA, MCA; and 40-7-20l(l)(a), under § § MCA, 40-7-203(2), 40-7-203(1), MCA. or § Oregon parenting In over accepting its order Dylan residing Cox and plan, the District Court found that both in Montana. Dylan significant had contacts Lodge in Deer Additionally, ofthe record reveals that Cox and moved review *9 1999, October, which would likely to Montana in the fall of most requisite “home state” criteria of 40- have established six-month § 7-201(l)(a), MCA,3 of his 2000 motion to prior filing April to Paslov’s plan. party Neither asserts that the six- Oregon parenting amend finding was not satisfied. The District Court’s period month fulfillment only part of the “significant contacts” constitutes (i). 40-7-201(1)(b), MCA, specifically, subpart requisite criteria of § MCA, 40-7-201(1)(b), light necessary fulfillment is not of § 40-7-201(1)(a),MCA, long as as 40-7- of fulfillment ofthe criteria of § § 203(1) 40-7-203(2), MCA, Dylan finding is met. The court’s that or § requirement of 40-7- residing in Montana meets the § and Cox were (“the 203(2), child, presently do not parents [and] MCA the child’s ... state”). Thus, met the requisite in the other Montana reside 40-7-201(1)(a) 40-7-203(2), jurisdictional under requirements § § Additionally, specifically stipulated MCA. the record reflects that Cox Therefore, accept appropriate we as jurisdiction. to Montana Oregon over the jurisdiction initial decision and exercise of Montana’s 11, 2000. leading September to its order of parenting plan the District Court retained question then'becomes whether (d) PKPA. under of the that subsection under the PKPA Montana’s Jurisdiction modify custody a child a sister state to The PKPA enables (1) jurisdiction to make state when it has determination of first (2) laws; under its own such a child determination by losing either longer jurisdiction, no has court of the first state modify such such declining or to exercise Erler, 70, 1738A(f); at 862 P.2d 261 Mont. determination. 28 U.S.C. § modify a decree of the Therefore, may state before a second at 15-16. up “continuing” its state, given must have lost or first the first state jurisdiction, has not lost jurisdiction. If Montana “pending” instead, it authority jurisdiction, to assume Court has no Samoan U.S.C. custody determination. 28 § must enforce Montana 1738A(a). long as it satisfies “continuing” jurisdiction as A retains state law, under its own it has requirements:
two parent person or a a child lived with the state in which “Home state” means immediately before the acting parent months at least 6 consecutive as 40-7-103(7), custody proceeding. MCA. Section child commencement of a 28 U.S.C. any child or contestants. the residence remains 1738A(d). states must jurisdiction, other “continuing” If a state has § the first enforce, determination modify, not 11, Here, September its the time the District Court made state. Paslov, the custody to 2000, custody awarding sole determination MCA, 40-7-203, satisfying Court had District 1738A(d): law. jurisdiction under own requirement of § first (d)-the Nevertheless, state of subsection requirement the second no any of the child or of the contestants-was remains residence Dylan July Cox and relocated longer satisfied as of when longer were no in Montana Although Dylan American Samoa. state while because Cox removed across lines Montana, an act the PKPA was proceedings pending nor prevent, parties designed fact remains neither Thus, did retain in Montana. Montana resided specific for the “continuing” jurisdiction as term defined *10 of PKPA. purposes the that, “continuing” in to PKPA addition provides the also
jurisdiction, jurisdiction. “pending” the first state also retain (g) exercising the to from Subsection of PKPA directs a court abstain or “any custody in for a visitation proceeding commenced in a during proceeding of a pendency determination the is court of State where such court of that other State another [the of to exercising jurisdiction consistently provisions Act] with the 1738A(g). determination.” or visitation 28 U.S.C. custody § make Thus, whether, custody question is the Court’s District jurisdiction” of the September “pending order of it retained Initiated matter at the time Cox the action in American Somoa November 2000. 11,2000, clearly provides that Judge September Mizner’s order of for therapists
he from licensed anticipating psychological reports was Additionally, the court further and visitation determinations. and be ordered that the search for Cox’s whereabouts continue Further, Cox, for prosecution back to it. in her deferred reported Interference, valid in agreed to all court orders issued Parental follow Court still had matter. All of these demonstrate the District this to ultimately going impact “pending” proceedings that visitation briefly necessary analysis, it for we will While is not further emergency Samoa couldexercise argument Cox’s that American review emergency for provides to PKPA. The PKPA jurisdiction pursuant present physically when child is state and it is necessary emergency protect in an to child because child has “subjected to or been threatened with mistreatment abuse.” 28 1738A(c)(2)(C)(ii). Cox asserts her decision to to U.S.C. return American Samoa was based on fear because Paslov had threatened her children, life her a propensity and the lives of Paslov had Paslov, conversely, characterizes actions as a violence. Cox’s “secret flight unilaterally “snatching” to Samoa” for the the child purpose hopes finding another forum which she could obtain a more abuse, allegations drug favorable outcome. Even if Cox’s of Paslov’s true, violent and fear for her and her children’s lives are propensities best, only temporary the Samoan court should have exercised protected PKPA it emergency jurisdiction whereby under the emergency from and imminent harm and continued substantial determined; jurisdiction only until forum and in this proper was fact, case, system. is In that forum the Montana District legal that Cox several remedies available her to Court found “had protect [Paslov] and her from in this if in fact herself Instead, she felt threatened him.” left the without to either Paslov or the District Court. notice UCCJEA, that the purpose It must be remembered here, PKPA, what occurred the removal of prevent precisely another, in obtain a a child from one order to different matters child. affecting or other minor regarding result case, acts on both sides this remains that While bad occurred law, jurisdiction simply by under the Cox cannot divest Montana of Samoa, recognize Dylan to which does removing American UCCJEA, thereby are satisfied the the entire issue. We restart fully properly applied was of and correct law District Court aware We the District jurisdictional issue. conclude addressing Samoa, instead jurisdiction American retained did not decline *11 of the PKPA. jurisdiction provision under the “pending” is affirmed. The District Court’s order ¶38 WARNER, GRAY, and JUSTICES COTTER CHIEF JUSTICE concur. LEAPHART dissenting. RICE
JUSTICE I dissent. render an international purports Court to The it describes as of assertions which jurisdictional decision on the basis truth, which background factual In much of the “facts.” all any factfinding premised ofits is not support offers in decision Further, the Court matter. briefing in this but is drawn from which is based only factfinding-that completely ignores proper counsel, represented discovery, testimony parties sworn a neutral credibility determinations cross-examination case, High in this that of has been conducted magistrate-which had no Concluding that American Samoa American Samoa. Court of only credible then refuses to consider jurisdiction, the Court evidence herein. declares, without Indeed, aside the facts the Court brushes in this grievously have acted
evidentiary parties that “both support, abuse, Nothing stalking kidnapping.” matter with assertions the truth. the Court find such blame- could be further from While convenient, only has the evidence establishes Paslov spreading many years. engaged in such behaviors-over Court, mimics that of the District inadequate The Court’s review only after the briefest passed judgment on the Samoan order only parties It that “the had an sparse finding consideration. made Butte, had argument [Paslov] in the Wal Mart store in Montana after son,” been denied visitation with his and did so without repeatedly hearing parties present. benefit of a all This Court refers to that with worse, innocuously fails “publicly argument,” incident as a heated but mountain acknowledge repeated to of evidence of Paslov’s abuse order, beyond opinion the Wal-Mart incident. In its which this ignore, the court concluded: Court chooses to Samoan court, court, an This unlike the Montana had the benefit of inter clearly trial. The evidence before us shows that partes adversarial abuse and a history drug [Paslov] has a Respondent Furthermore, propensity Respondent’s demonstrated forviolence. of her pattern hostility [Cox] recent towards Petitioner because incident at the Montana proposed marriage culminating Mart, instability current Respondent’s Wal makes evident realities, namely plan certain Petitioner’s inability cope with subjected are not satisfied that Minor will not be remarry. We care, therefore, Respondent’s primary these harms while in best interest. protect exercise the child’s background litigation. ofthe This conclusion is consistent with the Dylan’s decree, designated Cox as Oregon, entered original visitation for supervised and restricted Paslov to primary custodian Thus, costs. two pay Dylan’s transportation required which he was Samoa, matter have reviewed this jurisdictions, Oregon and American that Paslov should factfinding, and both have concluded proper *12 108 However, Court, custody Dylan. this without of
not have of benefit factfinding, opposite reaches the conclusion. proper by claiming “simply attempts avoid facts this is However, 24. it has erred its jurisdictional a matter.” See ¶ First, as the Court application jurisdictional principles of well. stalking without tritely declaring, minimizes and violence Paslov’s evidence, that “bad acts occurred on both sides.” benefit of of from the Court’s hands is incorrect as washing Paslov’s abuse is a concern which courts must a matter of law. Domestic violence area to avoid such superior consider to a victim’s relocation to another harm: violence or partner
[W]e hold that when court finds intimate party has or that a has Montana to abuse occurred fled of abuse, is the court authorized to consider avoid violence further if might protected the child be better party whether ... custody proceedings [W]e further were held another state. urge priority safety to the victims give district courts to of of considering jurisdictional when issues .... domestic violence 139, 26, Drollinger, 2003 MT 314 Mont. ¶ Stoneman v. ¶ added). Thus, threats, physical Paslov’s death (emphasis P.3d 26¶ (for stalking Cox, drug ongoing abuse and threats assaults support) given priority is should be evidentiary which there the Court considering questions. Today, jurisdictional consideration important principle. turns its back law, concludes that American In next error of the Court Samoa, best, only emergency “temporary should have exercised To protect See 36. ¶ under the PKPA” “Temporary contrary, an for the Samoan court. option this was not rather, PKPA, but, jurisdiction” provided by is emergency not UCCJEA, Legislature by the which Montana authority provided 40-7-204, MCA. The codified at Section adopted in and which is has American Samoa recognize is the failure to error here thus, UCCJEA, and, “temporary” cannot exercise adopted herein, assumes explained American Samoa thereby. As law, and under its common ways: in two custodial (Second) Laws, 79§ Restatement reference to the of Conflict of 79(b) (1971). Restatement, “Custody entitled of the of the Section Person,” “emergency regarding in the PKPA language mirrors the “temporary.” term See reference to the without jurisdiction” Revisions). 79(b)(1971)(1988 (Second) La ws § Restatement Conflict of s i the terms Therefore, Samoa, which included under American PKPA, jurisdiction available to under under the properly proceeded “temporary” No “emergency jurisdiction.” reference federal act: jurisdiction exists in PKPA. protect acted properly To whether American Samoa determine test for two-pronged requires application ©(2) 1738A(f)(l) Specifically, PKPA. 28 U.S.C. § *13 if of the PKPA it has jurisdiction purposes
state has court laws, 1738A(c)(l), 28 custody under its own U.S.C. jurisdiction § (a) met: home state one of the five conditions is (b) 1738A(c)(2)(A); jurisdiction, significant 28 U.S.C. connection § (c) 1738A(c)(2)(B); jurisdiction, 28 jurisdiction, emergency 28 U.S.C. § (d) 1738A(c)(2)(C); jurisdiction, 28 U.S.C. U.S.C. default § § (e) 1738A(c)(2)(D); continuing jurisdiction, or 28 U.S.C. § 1738A(c)(2)(E). jurisdiction foreign modifies American Samoa exercises
custody question present territory. decrees where child in in The High explained Court ofAmerican Samoa that Samoa exercises its jurisdictional authority under its common law and reference to the (Second) See, Child, e.g. Restatement Laws. In re Minor of Conflict of (Trial (Second) 1995); Div. A.S.R.2d 33 Restatement of Conflict of (“A 79(b) (1971) power jurisdiction Laws state has exercise ....”). custody determine the ... of a child ... who is in the present state Although adopted American Samoa UCCJA has neither the nor the UCCJEA, statutory proper jurisdiction such basis for the exercise of over child is not a under the requirement determinations PKPA, only provides “ha[ve] that a state need under 1738A(c)(1). Thus, the law of such American State.” 28 U.S.C. § finding that Samoa’s exercise based its was had, fact, present territory, July been there from laws, was and therefore satisfied initial proper requirement of the PKPA. for a child or visitation determination to be PKPA, additionally necessary for a
consistent with the it is court to have of the enumerated in 28 U.S.C. § met one five conditions (c)(2) 1738A(c)(2). High the PKPA reveals that the Court of Subpart 17,2001, correctly July opinion in its order American Samoa noted only one of the need be met. awarding custody to that five bases stated it had if: Samoan court (i) (C) State and child physically present the child is such (ii) abandoned, emergency to necessary it is in an has been or child, of the sibling, parent child protect the child because the subjected abuse[.] has been to or threatened with mistreatment or Although July the District in its enforcement Court stated ofthe reading “[a] order that ofthe decision Samoan court reveals exigent it did not determine its based on [Cox],” emergency urged by Respondent circumstances now it is excerpt foregoing evident from the of the Samoan court’s order that so. did reading of law evident The Court’s errors are from field, precise in the situation. As noted
authorities which address by Minneman: emergency alleged
Where an situation is there is a clear tension immediately goal acting protect between allowing emergency jurisdictional provision of not goal jurisdictional to be other UCCJA and PKPA used end-run temptation parent cry emergency to a when there is rules. The strong, loving parent no inasmuch as a emergency real is no doubt problem convincing little or herself that the often has himself [Thus,] arrangement is harmful.... trial established they if would be advised to take a close look to determine judges invoke under the UCCJA or PKPA. emergency should added). today Minneman, (emphasis at 142 The Court 80 A.L.R. 5th *14 that courts “take a close look” overlooks Minneman’s admonition must Minneman, jurisdictional question. to determine the at facts Instead, completely ignores 142. the facts A.L.R. 5th at Court very a and by found Court. Samoan Court took close Samoan invoke very determining look the facts in whether to complete with conducting a trial on the issue emergency jurisdiction, court represented by Paslov and counsel. The present both Cox and Warren, Diedre, McGee, Cox, Paslov, testimony and Don heard from testified, testimony deposition Cox and Warren’s Cox’s fiance. corroborated, 22, 2000, publicly Paslov threatened Cox that on June wedding, ruin her going her and he was her stalk and children said out, this life, As it turned her and make her miserable. for rest of Beyond abuse. tip iceberg of Paslov’s was but only incident the District referenced-there incident-the others, many Paslov demonstrating pattern by a of abuse over many years. Paslov during nine-year marriage, that their Coxfurther testified abuse, regularly. She crack and cocaine history drug using
had a of fairly regular event which abuse was physical added that Paslov’s in 1993 Paslov was children. She stated that occurred in front over the further indicated that her the neck. She jailed grabbing for restraining orders when Paslov temporary years granted she had been in which she sustained her, including one incident hurt physically corroborated, testified, Diedre and both Warren and broken wrist. Cox Warren, 13, by grabbing aged then had abused physically that Paslov wall, when he tried to slamming against neck him him the and Cox, was then Paslov and who intervene in an altercation between drug testified that he found nine with Warren pregnant months during the time his mother was drugs and in the house paraphernalia straws, blades, Paslov, zip and including cut-up razor lock married to also testified Paslov packages containing powder. cocaine Warren drank. Warren, Paslov aged 19, further characterized as now being he liked
manipulative dangerous man with whom never an Dylan, that when as alone. Both Diedre Warren testified care, infant, house in the was left in Paslov’s Paslov would leave the At night, Dylan middle them to care for when he cried. leaving times, cried, fists at when he other Paslov would shake his he “just up.” shake the crib and tell him to shut Warren testified heard her; he Paslov tell Cox he hated and Cox testified Paslov said hated Diedre, (Dylan) hoped baby Warren and would die. trial, testimony at parties’ Based Samoan fact. found that complete findings
entered detailed and It throughout couple’s Paslov demonstrated an marriage, “unpredictably “physical hostility.” temperament” violent Paslov obsessively possibility “became concerned with the another father life, resentful, outright if figure very jealous, in his son’s over proposed remarriage.” days On June four before [Cox’s] Dylan, days visit and two before Cox’s Paslov’s scheduled McGee, managed [Cox] to track down marriage Paslov “somehow Butte, wedding at Wal Mart in shopped things while she for her Cox, Montana,” among the store” calling and “ranted and raved in cunt,” and to “ruin her things, other “an evil adulteress threatened life, her her and wedding, stalk her for the remainder of harm her children, years of her miserable.” make rest primarily had been The Samoan court further found *15 needs, that, day-to-day responsible Dylan’s upbringing for and his trial, provide [Dylan] with stable as of the time of she “continued managing found that while nurturing environment.” court employment, but gainful Cox had maintained single parenthood, interaction significant Dylan’s Paslov had not. The court also found actively participated had in siblings, both of whom with his two older [Paslov’s] that it was “not convinced of upbringing. his The court stated background drug abuse suitability custody given for sole his aggressive his behavior.” coupled with multiple parties under testimony, offered compelling This is this ignores Yet the Court subject to cross-examination. oath and that both not based on evidence: platitude in favor of a evidence been “bad.” parties have law, that Montana of the Court concludes In its final error entry of its of matter “pending jurisdiction”
retained therefore, 11,2000, was not American Samoa September order PKPA. See 37. for ¶ to later act under the empowered custody proceeding in a “pending” jurisdiction retain first state to specific make a custody, it must following its determination situation, jurisdiction to review or retention reservation W. v. further orders. See Diane hearings, further or to enter conduct (California’s 1982) (N.Y. 174, 175 446 N.Y.S.2d Norman W. court, of the stating “until further order interlocutory order New York’s prohibit sufficient to regard,” in this reserves (Fla. 1983),424 App. So.2d Burch v.Burch Ct. jurisdiction); exercise of (Florida New York’s exercising jurisdiction where 187, 188 erred March, 1982”); stated, Zellat “matter will come on for review order (Pa. 946, 950 could not 1985), (Pennsylvania 506 A.2d Super. v. Zellat hearings” ordered “further Tennessee court jurisdiction where exercise (Fla. 62, 1983), 432 So.2d matter); App. Ct. Greene v. Greene in the (Florida Virginia where assuming jurisdiction court erred matter”). subject it “retained over stated that 11, September although the District Court’s subjudice, In the case undergo 2000, required parties Paslov granting custody to order what, evaluations, if order does not indicate psychological further law, the case by the court. Under contemplated action was any, further “pending to reserve insufficient was ambiguity purpose PKPA, barring purposes defined jurisdiction,” as Samoa. jurisdiction by American emergency exercise that it Court’s conclusion the District foregoing, Based interpretation of incorrect jurisdiction was an subject matter retained “continuing” Court lost PKPA. The District law under the state. It relocated outside contestants the child and both when when September only until “pending” retained Thereafter, was American Samoa order was entered. the limited emergency to exercise eligible *16 PKPA. under the circumstances allowed contrary to traditional counterintuitive and appear It jurisdiction for acquire a court can to conclude that jurisprudence custody, only to to another purposes determining lose matter custody determination because state its However, the loss it must be understood that longer “pending.” is no possibility is a limited “pending” jurisdiction “continuing” both very facts: unique ofthe only the PKPA and occurs here because under state, located outside permanently child and both parents in this It must longer pending no state. proceeding and a was possible under be understood that loss of also vital, narrow, authorize purpose: PKPA in order fulfill a but very specific another state to exercise circumstances-here, in an protect for American Samoa to the child alleged emergency. inadequate The District Court’s review of American Samoan it to its
decision led conclude that the Samoan court “did determine exigent emergency based on ... circumstances.” contrary, “[t]he the Samoan court concluded clearly emergency circumstances in this case create an substantial enough protect confer this court Minor from Likewise, Respondent [Paslov].” this Court has turned back on the evidence, rejected from protect a sister state’s careful action to a child abuse, significance. and made an error of I great dissent. joins
JUSTICE in the dissent JUSTICE foregoing NELSON RICE.