Opinion
No. FA 09 4021046
February 26, 2010
MEMORANDUM OF DECISION MOTION #130
The matter before the court involves an interstate custody dispute between the plaintiff mother, Mary Claire Mayer, and defendant father, Daniel R. Barrow, the unwed parents of minor child, Dylan Carter Barrow born on April 3, 2008. The motion before the court is the defendant's motion to dismiss #130.
The court finds the following facts: the child lived in Massachusetts with both the plaintiff and the defendant for the greater part of September 1, 2008 to November 8, 2009. The plaintiff returned to Connecticut with the child on November 8, 2009. Presently, the plaintiff and child reside at 25 River Hill Road, Southbury, Connecticut 06488. The defendant currently lives in Sheffield, Massachusetts.
The defendant claims that the plaintiff moved from Massachusetts to Connecticut on November 8, 2009. The plaintiff provided inconsistent information regarding the date that she moved from Massachusetts to Connecticut. In the plaintiff's custody application of November 9, 2009, the plaintiff indicated that she and the child lived at 310 Miller Avenue, Sheffield, Massachusetts 01257 from August 1, 2009 to November 8, 2009. Conversely, in her memorandum in support of her opposition to the motion to dismiss, filed on December 14, 2009, the plaintiff claimed that "[a]fter the defendant-father abandoned the plaintiff-mother and their son in September 2009 . . . [the] plaintiff-mother left Massachusetts." The Massachusetts court found that the child resided in Massachusetts from September 1, 2008 to November 8, 2009.
When the plaintiff filed her custody application with this court on November 9, 2009, she listed the defendant's address as 310 Miller Avenue, Apartment B, Sheffield, Massachusetts 01257. When the defendant filed his custody application with the Massachusetts court on November 25, 2009, he listed his address as 296 Miller Avenue, Sheffield, Massachusetts 01257. It is unclear exactly when the defendant moved from 310 to 296 Miller Avenue.
Custody applications in this matter have been filed both in this court and with the Commonwealth of Massachusetts. In this court, the plaintiff filed a custody application on November 9, 2009. On December 7, 2009, the defendant filed the subject motion to dismiss (#103), on the basis of jurisdiction, and a supporting memorandum of law. On December 14, 2009, the plaintiff filed a memorandum in opposition to the motion to dismiss accompanied by a supporting memorandum of law. Thereafter, the court held a hearing.
In the Probate and Family Court of the Commonwealth of Massachusetts, the defendant filed a motion for order of temporary custody on November 25, 2009. The Massachusetts court found that it had jurisdiction to decide the matter based upon a "home state" determination, and granted temporary custody to the defendant on December 18, 2009.
"Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. Except in summary process matters, the motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the judicial authority otherwise directs. Any adverse party may, within ten days of the filing of the motion with the court, file a request for extension of time to respond to the motion. The clerk shall grant the request and cause the motion to appear on the short calendar not less than thirty days from the filing of the request." Practice Book § 10-30.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).
"The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).
In the present case, the defendant argues that the plaintiff's custody application should be dismissed by this court because, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), this court does not have jurisdiction to decide this matter. The defendant contends that Massachusetts is the home state of the minor child in this matter. He supports his contention as follows: "The [m]inor [c]hild resided in Massachusetts from at least September 1, 2008 through November 8, 2009, when the [c]hild was taken without consent of his father to Connecticut by the child's mother . . . The [a]pplicant [p]laintiff filed this action on November 9, 2009 in Connecticut, [one] day after departing Massachusetts . . . This nexus does not create jurisdiction under [either] the [c]onstitution [or] the laws of this [s]tate. Therefore, this matter should be dismissed for lack of jurisdiction."
The plaintiff concedes that Massachusetts is technically the home state of the child, as defined in General Statues § 46b-115a(7). Nevertheless, she contends that Connecticut should be the initial child custody jurisdiction under General Statutes § 46b-115k(3). The plaintiff provides the following information in support of her contention. The plaintiff, defendant and child were all born in Connecticut. The plaintiff and the defendant were raised and educated in Connecticut. All four of the child's grandparents live in Connecticut, and all of his pediatricians are located in Connecticut. The defendant works for a company located in Connecticut. Prior to moving to Massachusetts, the two parents and the child lived in Connecticut for five months and only moved to Massachusetts so that the plaintiff would be closer to her employer. The plaintiff returned to Connecticut in November 2009, after the defendant left her and the child, so that the plaintiff's family could help her raise the child. Most visits between the defendant and the child have taken place at the defendant's parents' home in Fairfield, Connecticut, and the plaintiff believes that future visits will also take place at the home of the defendant's parents. The plaintiff has voluntarily enrolled in a drug treatment program in Connecticut. She plans to obtain work and to reside permanently in Connecticut. The plaintiff also expresses concern that the defendant is not able to provide a safe and secure environment for the child, and that the defendant abuses alcohol and controlled substances.
General Statutes § 46b-115a(7) provides: "'Home state' means the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months old, the term means the state in which the child lived from birth with any such parent or person acting as a parent. A period of temporary absence of any such person is counted as part of the period."
General Statues § 46b-115k(3) provides: ". . . a court of this state has jurisdiction to make an initial child custody determination if: (3) A court of another state does not have jurisdiction under subdivision (1) or (2) of this subsection, the child and at least one parent or persons acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships."
Based upon the above variables, the plaintiff asserts that a Connecticut court should have jurisdiction to decide custody matters in this dispute because "it would be highly inconvenient for all parties and material witnesses to have to travel to Massachusetts for custody and visitation matters that are taking place or will take place in Connecticut."
"Historically, child custody proceedings between the various states and territories of the United States were problematical, yielding conflicting and varying results. In 1981 the United States Congress passed legislation directed at rectifying these problems. That legislation was called the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A. It mandated that all states apply full faith and credit to interstate custody decisions. Enforceability under the PKPA was based on the priority of home state jurisdiction." Landrum-Spitia v. Spitia, Superior Court, judicial district of Windham, Docket No. FA 05 4001478 (May 9, 2007, Riley, J.) ( 43 Conn. L. Rptr. 353).
"The purpose behind the PKPA was to eliminate the four 'bases' or 'factors' in the original [Uniform Child Custody Jurisdiction Act (UCCJA)] which had resulted in all of the conflicts and resulting inconsistencies which had created an unworkable and non-uniform interstate act. Instead, enforceability under the PKPA was to be based on the priority of home state jurisdiction. That provision of the uniform act was adopted in Connecticut as [General Statutes] § 46b-115k." Lebejko v. Lebejko, Superior Court, judicial district of Windham, Docket No. FA 06 4004870 (February 8, 2007, Riley, J.).
The UCCJEA "became effective in Connecticut on July 1, 2000. It replaced the [UCCJA] which was the law controlling jurisdiction between states in child custody and visitation actions for almost thirty years." Lippman v. Perham-Lippman, Superior Court, judicial district of Fairfield, Docket No. FA 06 4013911 (March 10, 2006, Wolven, J.). "The purposes of the UCCJEA are to avoid jurisdictional competition and conflict with courts of other states in matters of child custody; promote cooperation with the courts of other states; discourage continuing controversies over child custody; deter abductions; avoid re-litigation of custody decisions; and to facilitate the enforcement of decrees of other states . . . [T]he UCCJEA prioritizes 'home state' when establishing jurisdiction. Uniform Child Custody Jurisdiction Enforcement Act, 9 U.L.A. 2 (1997). In addition, the term 'best interest' was specifically omitted from the jurisdictional provisions of the UCCJEA to sharply delineate between jurisdictional standards and the substantive standards relating to child custody and visitation, 9 U.L.A. 4 (1997)." (Citation omitted; internal quotation marks omitted.) Lippman v. Perham-Lippman, supra, Superior Court, Docket No. FA 06 4013911.
"The UCCJA provided four alternative jurisdictional grounds to make child custody determinations, including 'significant connection,' with the state. This created the possibility that more than one state would have jurisdiction over a proceeding. Moreover, the original [a]ct also conflicted with the federal Parental Kidnapping Prevention Act (PKPA), passed in 1980, which gives priority to the 'home state' in establishing initial jurisdiction . . . These inconsistencies resulted in disparate court interpretations and contradictory custody orders, greatly undermining the original purpose of the UCCJA. Uniform Child Custody Jurisdiction Act, 9 Uniform Laws Annotated (U.L.A.) 1 (1997)." Lippman v. Perham-Lippman, supra, Superior Court, Docket No. FA 06 4013911.
General Statutes § 46b-115k(a) sets forth six jurisdictional bases for determining child custody. Connecticut courts acknowledge that, pursuant to General Statutes § 46b-115a(5), "[J]urisdiction attaches at the commencement of a proceeding." See e.g., Graham v. Graham, Superior Court, judicial district of Middlesex, Docket No. FA 92 65185 (February 6, 2002, Parker, J.). "The jurisdiction of a court of a [s]tate which has made a child custody determination consistently with the provisions of this section continues as long as [such court has jurisdiction under the law of such state,] and such [s]tate remains the residence of the child or of any contestant." Title 28 U.S.C. § 1738A(d) (1994); see also Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988) (holding that 28 U.S.C. § 1738A effectively imposes duty upon states to accord full faith and credit to custody or visitation determinations made in accordance with standards derived from the UCCJA).
"[A] court of this state has jurisdiction to make an initial child custody determination if: (1) This state is the home state of the child on the date of the commencement of the child custody proceeding; (2) This state was the home state of the child within six months of the commencement of the child custody proceeding, the child is absent from the state, and a parent or a person acting as a parent continues to reside in this state; (3) A court of another state does not have jurisdiction under subdivisions (1) or (2) of this subsection, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships; (4) A court of another state which is the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision substantially similar to [General Statutes §] 46b-115q or [General Statutes §] 46b-115r, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships; (5) All courts having jurisdiction under subdivisions (1) to (4), inclusive, of this subsection have declined jurisdiction on the ground that a court of this state is the more appropriate forum to determine custody under a provision substantially similar to [§] 46b-115q or [§] 46b-115r; or (6) No court of any other state would have jurisdiction under subdivisions (1) to (5), inclusive, of this subsection." General Statutes § 46b-115k(a).
The Massachusetts Child Custody Jurisdictional Act (MCCJA) governs jurisdictional issues in custody matters in Massachusetts, and provides in pertinent part: "(a) Any court which is competent to decide child custody matters has jurisdiction to make a custody determination by initial or modification judgment if: (1) the commonwealth (I) is the home state of the child on the commencement of the custody proceeding, or (ii) had been the child's home state within six months before the date of the commencement of the proceeding and the child is absent from the commonwealth because of his or her removal or retention by a person claiming his or her custody or for other reasons, and a parent or person acting as parent continues to reside in the commonwealth." [Mass. Gen. Laws.] c. 209B § 2. "The MCCJA is similar, but not identical, to the [UCCJA]." In re Adoption of Yvette, 71 Mass.App.Ct. 327, 336 n. 11, 881 N.E.2d 1159 (2008), citing Umina v. Malbica, 27 Mass.App.Ct. 351, 354-56, 538 N.E.2d 53 (1989).
"In situations where the MCCJA permits the exercise of jurisdiction, but the PKPA does not, the PKPA is controlling. Delk v. Gonzalez, 421 Mass. 525, 531, 658 N.E.2d 681 (1995). Where Massachusetts is the second court to be asked to adjudicate a custody dispute, the jurisdictional demands of the PKPA must be satisfied. [ Id.] See Hillier v. Hillier, 41 Mass.App.Ct. 486, 488, 671 N.E.2d 520 (1996); Fortier v. Rogers, 44 Mass.App.Ct. 732, 733, 693 N.E.2d 1058 (1998); Cricenti v. Weiland, 44 Mass.App.Ct. 785, 791, 694 N.E.2d 353 (1998)." In re Adoption of Yvette, supra, 71 Mass.App.Ct. 335.
"The first basis for jurisdiction under § 2 of the MCCJA is as the home state of the children on the commencement of the custody proceeding . . . Home state is defined as: the state in which the child immediately preceding the date of commencement of the custody proceeding resided with his parents, a parent, or a person acting as parent, for at least [six] consecutive months . . . Periods of temporary absence of any of the named persons are counted as part of the [six]-month or other period." (Citations omitted; internal quotation marks omitted.) MacDougall v. Acres, 427 Mass. 363, 368, 693 N.E.2d 663 (1998).
"Under the MCCJA, [a]ny [Massachusetts] court which is competent to decide child custody matters has jurisdiction to make a custody determination if Massachusetts was the home [s]tate of the child on the commencement of the divorce action . . . The probate courts are competent to decide custody matters, as they have been vested by the [l]egislature with exclusive original jurisdiction . . . of actions relative to the care, custody, education and maintenance of minor children." (Citation omitted; internal quotation marks omitted.) E.N v. E.S., 67 Mass.App.Ct. 182, 192-93, 852 N.E.2d 1104 (2006). "The Probate Court judge's decision to exercise jurisdiction under the MCCJA is a discretionary one." Orchard v. Orchard, 43 Mass.App.Ct. 775, 779-80, 686 N.E.2d 1066, 1070 (1997), citing Tazziz v. Tazziz, 26 Mass.App.Ct. 809, 815, 533 N.E.2d 202 (1988); Umina v. Malbica, 27 Mass.App.Ct. 351, 355-60, 538 N.E.2d 53 (1989).
Massachusetts courts' determination of jurisdiction pursuant to [Mass. Gen. Laws.] c. 209B, § 2 "requires a two-step analysis: first, whether § 2 of the MCCJA confers jurisdiction upon the Massachusetts court at all; and, second, whether, after weighing the criteria in § 7 of the MCCJA (the inconvenient forum provision), the court should exercise jurisdiction." (Internal quotation marks omitted; emphasis in original.) Orchard v. Orchard, supra, 43 Mass.App.Ct. 780.
General Laws c. 209B, § 7, sets forth the following five factors that a court must consider when determining if it is an inconvenient forum: "(1) whether another state is or recently was the child's home state; (2) whether another state has a closer connection with the child and his family or with the child and one or more of the contestants; (3) whether substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state; (4) whether the parties have agreed on another forum which is not less appropriate; and (5) whether the exercise of jurisdiction by a court of the commonwealth would contravene any of the purposes of this chapter."
In the present dispute, on December 18, 2009, the probate and family court of the Commonwealth of Massachusetts issued an order finding that "pursuant to [Mass. Gen. Laws.] c. 209B (Massachusetts Child Custody Jurisdictional Act), Massachusetts was the home state of the minor child, namely: Dylan Carter Barrow, on November 25, 2009, the date of the commencement of this action." The court based its decision on the fact that the child has resided in Massachusetts from September 1, 2008 to November 8, 2009.
Nevertheless, the Massachusetts court's finding of jurisdiction does not necessarily mean that all future proceedings in this matter must take place in Massachusetts. In Connecticut, even if another state's court establishes jurisdiction under the home state jurisdiction test, "[u]nder the UCCJEA a 'home state' may be requested to consider whether it is an inconvenient forum for the purpose of deciding custody or visitation. [General Statutes] § 46b-115q." Lippman v. Perham-Lippman, supra, Superior Court, Docket No. FA 06 4013911.
Section 7c of Mass. Gen. Laws. c. 209B complements Connecticut General Statutes § 46b-115q, in that it "allows courts of the Commonwealth [of Massachusetts] to 'communicate and exchange information with a court or courts of any other relevant jurisdiction' in order to determine the appropriate forum for a custody proceeding." Custody of Brandon, 407 Mass. 1, 5 n. 3, 551 N.E.2d 506 (1990). "The MCCJA expressly permits communication and cooperation with the courts of other [s]tates in interstate custody cases. See [Mass. Gen. Laws.] c. 209B, § 7c (authorizing the communication and exchange of information relevant to deciding whether a Massachusetts court is "the appropriate forum"); § 10(a) (authorizing a Massachusetts court to request another [s]tate court to hold a hearing to adduce evidence, order a party to produce or give evidence, or have an investigation made with respect to a custody case pending in Massachusetts). The original UCCJA as well as the revised and renamed [UCCJEA] also encourage intercourt communication." In re Adoption of Yvette, supra, 71 Mass.App.Ct. 342 n. 18.
[Mass. Gen. Laws.] c. 209B, § 7c provides: "In order to determine whether it is the appropriate forum, a court of the commonwealth [of Massachusetts] may, in its discretion, at any time during the pendency of the custody proceeding, communicate and exchange information with a court or courts of any other relevant jurisdiction."
[Mass. Gen. Laws.] c. 209B, § 7 provides: "(d) For the purposes of this section, a court may consider the following factors: (1) whether another state is or recently was the child's home state; (2) whether another state has a closer connection with the child and his family or with the child and one or more of the contestants; (3) whether more substantial evidence concerning the child's present or future care, protection, training, and personal relationships is available or whether such evidence is more readily available in another state; (4) whether the parties have agreed on another forum which is not less appropriate; and (5) whether the exercise of jurisdiction by a court of the commonwealth would contravene any of the purposes of this chapter.
"(e) If a court shall find that a court of another jurisdiction is or may be a more appropriate forum under the terms of this chapter for the adjudication of the custody proceeding, it may do one or more of the following: (1) dismiss the proceeding with or without prejudice; (2) vacate any order or judgment already entered; (3) stay the proceeding upon condition that a custody proceeding be initiated or prosecuted in another state in a timely manner or upon any other condition that the court might deem just; (4) retain jurisdiction over any action to which the custody proceeding is incident, while declining to render a custody determination; (5) enter such temporary order or orders as may be required, in the court's discretion, pursuant to clause (ii) of paragraph (3) of section two; (6) assess any or all of the costs of the custody proceeding in this state, having due regard for the purposes of this chapter, including the reasonable travel and other expenses of any party and his or her witnesses, the reasonable attorneys fees of any party, the costs of the court's communications and information exchanges with other courts and the fees and costs of any person entitled to appear before the court as the representative of a child; (7) assess sanctions against any party whom the court finds has engaged in illegal or otherwise wrongful conduct; (8) enter any other order or judgment which may be meet and just under the circumstances of the case.
"(f) A court shall communicate to the court of any other relevant jurisdiction any determination or finding made pursuant to this section." [Mass. Gen. Laws.] c. 209B, § 7.
"While the precise method for intercourt communication may vary, the procedures employed should provide for an appropriate level of participation by the parties and the creation of a record for appeal." Id. In a number of cases, Massachusetts courts have communicated with courts in other states when there is a dispute as to which jurisdiction should have custody. See e.g., MacDougall v. Acres, supra, 427 Mass. 365 n. 3 ("As recommended under the MCCJA, the judge from Massachusetts spoke with the judge from Louisiana to discuss what should happen next."); Custody of Brandon, 407 Mass. 1, 5, 551 N.E.2d 506 (1990) ("The probate judge corresponded and spoke by telephone with the Mississippi judge regarding the custody petition.").
Similarly, Connecticut courts also communicate with courts in other states in instances when it is unclear which court should have jurisdiction. See e.g., Lippman v. Perham-Lippman, supra, Superior Court, Docket No. FA 06 4013911 ("Pursuant to the [UCCJEA], which governs the determination of child custody jurisdiction in this matter, this court communicated with the Colorado Court . . .")
General Statutes § 46b-115q(b) provides a list of factors that Connecticut courts should consider in determining whether a Connecticut court should have jurisdiction over a custody matter. This list presumably should also apply when a Connecticut court communicates with a court in a child's home state, in order to determine which jurisdiction is more appropriate to handle decisions in a particular custody dispute. "In determining whether a court of this state is an inconvenient forum and that it is more appropriate for a court of another state to exercise jurisdiction, the court shall allow the parties to submit information and shall consider all relevant factors including: (1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside this state; (3) the distance between the court in this state and the court in the state that would assume jurisdiction; (4) the relative financial circumstances of the parties; (5) any agreement of the parties as to which state should assume jurisdiction; (6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) the familiarity of the court of each state with the facts and issues in the pending litigation." General Statutes § 46b-115q(b).
"After considering these factors the 'home state' may conclude it is not the appropriate forum for resolution of custody issues in a particular matter. In that instance, the court may relinquish jurisdiction to another state's court. § 46b-115q. Despite the absence of 'best interest' language in Connecticut's UCCJEA, some courts have considered 'best interest' of the child as a relevant factor to consider when examining 'inconvenient forum.'" Lippman v. Perham-Lippman, supra, Superior Court, Docket No. FA 06 4013911.
In the present matter, although the plaintiff concedes that Massachusetts is technically the "home state" of the child, she requests that this court find that it has the jurisdiction to determine custody matters on the ground that Connecticut is the convenient forum and that it is in the best interest of the child for a Connecticut court to make a custody determination in this matter.
Although the plaintiff's argument may be compelling, this court does not have the authority to claim jurisdiction without first discussing this issue with the Massachusetts court, because the Massachusetts court has already claimed jurisdiction to decide this custody matter. See Title 28 U.S.C. § 1738A(d) (1994) ("The jurisdiction of a court of a [s]tate which has made a child custody determination consistently with the provisions of this section continues as long as [such court has jurisdiction under the law of such state,] and such [s]tate remains the residence of the child or of any contestant"); see also Thompson v. Thompson, supra, 484 U.S. 174 (holding that 28 U.S.C. § 1738A effectively imposes duty upon states to accord full faith and credit to custody or visitation determinations made in accordance with standards derived from the UCCJA).
Accordingly, this court shall communicate with the Massachusetts court so that the two jurisdictions may reach an agreement as to which forum is more appropriate to decide this custody matter. The defendant's motion to dismiss is denied pending such hearing. The court directs the clerks office to arrange for a teleconference hearing with the Massachusetts court and notify the parties and counsel of record of the date, time and location.
SO ORDERED.