ADDENDUM, additional precedent, law, code, statute, constitutional
PRECEDENT
176 OS 299,199 NE(2d) 586 (1964),Bartlett v Bartlett.
Error in the application of law to the facts in the
rendition of a judgement is judicial error, and is a matter
which must be raised by appeal, and is not irregularity in
obtaining the judgement within the meaning of RC
2325.01.(Annotation from RC 2325.01.)
59 USLW 4070(US 1991), FirsTier Mortgage Co. v Investors
Mortgage Insurance Co.
Under Fed ÿApp R 4(a)(2), a notice of appeal filed from a
decision that is not final can serve as an effective notice
of appeal from a subsequently entered final judgement when a
district court announces a decision that would be
appealable if immediately followed by the entry of judgement.
18 OS(2d) 154,248 NE(2d) 57(1969), Lincoln Properties,Inc. v
Goldslager.
In an appeal on questions of law and fact, a court of
appeals is without power to remand the cause to the inferior
court for further proceedings tantamount to a new trial, but
is required to substitute it's independant judgement for that
of the inferior court and to grant final judgement in
accordance with its findings on the evidence before it.
63 O St. 3d 173,State, ex rel. Beacon Journal Publishing Co.,
v. Donaldson
An appeal may be heard when there is a reasonable
expectation that the same complaining party will be subject
to the same action again.
Pence v. Darst(1989), 62 Ohio App. 3d 32
When an appellant elects to wait until the case is
completely over in the trial court before maintaining his
appeal, and the issue that he is seeking to raise on appeal
has not become moot as result of intervening events, it will
not have been impracticable for him to have waited to perfect
his appeal.......
176 OS 299,199 NE(2d) 586 (1964),Bartlett v. Bartlett
Error in the application of law to the facts in the
rendition of a judgement is judicial error, and is a matter
which must be raised by appeal,... .
46 App(3d) 102,546 NE(2d) 950(Franklin 1988), Buckles v. Buckles
A trial court's failure to individually determine each piece of
property considered in an alimony determination constitutes error.
40 App(3d) 155,532 NE(2d) 201(Franklin 1988),Day v. Day
A trial court's failure to consider whether or not a spouse's
pension plan may properly be subject to "qualified domestic
relations order" pursuant to "29 USC 1056" constitutes an abuse of
discretion.
CUSTODY
49 OS(3d) 21,550 NE(2d) 178(1990),Bechtol v. Bechtol
When forming a custody order, a trial court should give due
consideration to which parent performed the role of primary
caregiver.
Am. Sub. S.B. 3 submits guidelines for the issue of
custody, and additional property seperation, spousal support
guidelines and who must report known or suspected cases of
neglect or abuse and certain related issues, to include the
presiding judge in the court of common pleas or his
representative.
49 OS(3d) 21,550 NE(2d) 178(1990), Bechtol v Bechtol.
When forming a custody order, a trial court should give due
consideration to which parent performed the role of primary
caregiver.
23 O App 3d 109,Charles v. Charles
There is no longer a presumption that the mother is entitled
to custody of a child of tender years.
In re Maxwell(1982),8 O App 3d 302,
"In those custody disputs where the facts demonstrate that child
care and custody are shared in an entirely equal way, then indeed no
presumption arises and the court must proceed to inquire further
into relative degrees of parental competance. However, where one
parent can demonstrate with regard to a child of tender years that
he or she is clearly the primary caretaker parent, then the court
must further determine only whether the primary caretaker parent is
a fit parent. Where the primary caretaker parent achieves the
minimum, objective standard of behavior which qualifies him or her
as a fit parent, the trial court must award the child to the primary
caretaker parent.
66 O App 3d 724, Glover v. Glover
The court abused its discretion by failing to consider the
primary caretaker factor.
No.88-CA-119(7th Dist. Ct. App.,Mahoning, 3-23-89),Paparodis
v Paparodis.
A trial court does not abuse it's discretion in modifying a prior
custody order when there is some evidence to support the trial
court's finding of a change in circumstances in that the children's
schooling is very poor while in the mother's custody and the father
can offer a better educational environment, which is in the
children's best interest.
66 O App 3d 342, Seibert v. Seibert(1990).
A child's tender years, like the role of the primary caretaker, is
a relevent factor in a custody determination. An award based on
future possibilities is contrary to the purpose of R.C. 3109.04
which is to base custody on present circumstances.
60 App(2d) 339,397 NE(2d) 425 (1978), Sexton v. Sexton
Where a court in a change of custody action determines it is no
longer equitable that a judgement continue to have prospective
application, it may change such, not withstanding RC 3109.04(B) and
even though none of the exceptions in that statute exist.
Snelling v. Gardner(1990),69 O App 3d 196
Custody of the child must be a disputed issue before the UCCJA
applies.
In Am. Sub. H.B. 514 and Am. Sub. S.B.3 the court finds the
guidelines under which it must distribute marital property and
assets, and spousal support.
31 O App 3d Thomson v. Thomson,
O Jur 3d Family Law ÃÃ1013,1197--The "primary caretaker doctrine" is
part of the best interest of the child and is included in the
language of R.C. 3109.04(C)(3),"the child's interaction and
interrelationship with his parents."
70 O App 3d 317, Thornton v. Thornton(1990)
The court did not err by awarding custody to the husband where the
wife provided an unclean and unfit enviroment for them and did not
participate sufficiently in thier activities.
3 O App 3d 210,Thrasher v. Thrasher(1981)
Suitable parent has paramount right to custody so long as such
custody is not detrimental to the child.
Professional degree, property division, spousal support
4 ALR4th 1294
Spouse's professional degree or licence as marital property
for purposes of alimony, support, or property settlement.
In Am. Sub H.B. 514 the court finds that if a spouse has
engaged in financial misconduct, the court may compensate the
offended spouse with a distributive award or with a greater
distributive award to the offended party.
42 O St. 3d 61, Kahn v. Kahn(1987)
Goodwill is part of a professional business.
23 O St. 3d 115, Stevens v. Stevens(1986)
Professional degree or licence is not marital property, and
the present value of the projected future earnings of the
degreed spouse is not a marital asset subject to division
upon divorce. Although not a marital asset, the future value
of a professional degree or licence acquired by one of the
parties during the marriage is an element to be considered in
reaching an equitable award of alimony.
21 O St. 3d 73,Worthington v. Worthington
Court does not abuse its discretion by apportioning the
appreciation in value of non-marital property as a marital asset,
where significant marital funds and labor are expended to improve
and maintain such property.
Compensable Loss
In re Wilson(1989),61 O Misc. 2d 369
For an unemployed claimant to sustain compensable "work loss," it
must be shown that he had secured a specific job commencing at some
known date or was in the process of negotiating for a job he was
likely to get.
Retirement benefits, pension plans, related matter
94 ALR3d 176
Pension or retirement benefits as subject to award or division by
court in settlement of property rights between spouses.
49 OS(3d) 120,551 NE(2d) 157 (1990), Bolinger v Bolinger.
The subject matter jurisdiction of a trial court to award permanent
alimony and to formulate an equitable division of the marital assets
commences when either party files a complaint for divorce and a
division of marital property.
11 O Misc. 2d 26, Bohnlein v. Bohnlein(1983)
Spouse's vested interest in a profit sharing and pension plan
earned during marriage is a marital asset subject to division.
46 ÿApp(3d) 102,546 NE(2d) 950(Franklin 1988),Buckles v
Buckles.
" Parity as a goal of alimony expressed in RC 3105.18 is not a
mathematical equality but an equitable term.
A trial court's failure to indivigually determine each piece of
property considered in an alimony determination constitues error.
At the very least, equity requires that a party receives sufficient
sustanance alimony to bring him or her to a reasonable standard of
living, one in reasonable relationship to the standard maintained
during the marriage.
In achieving a reasonable property-division alimony award, under
R.C. Ã3105.18, the court must first determine the seperate property
of each party, including but not limited to property held outside
the marriage, and must divide between the parties the property
acquired during the marriage sometimes referred to as "marital
property." After making this determination, the court must consider
whether either party should be awarded alimony from the property of
the other party by utilizing all relevent factors including those
set forth in R.C.Ã 3105.18."
46 ÿApp(3d) 132,546 NE(2d) 226(Wayne 1988),Carr v Carr.
A court may order an award of sustenance alimony where no specific
demand for alimony has been made if such an award is warrented.
70 O App 3d 738, Connolly v. Connolly(1990)
The trial erred by failing to affix a present value to the
husband's retirement benefits. Portion of retirement benefits which
is marrital property should be determined by computing the ratio of
the number of years of employment during the marriage to the toal
years of employment.
40 ÿApp(3d) 155,532 NE(2d) 201(Franklin 1988),Day v Day.
A trial court's failure to consider whether or not a spouse's
pension plan may properly be subject to "qualified domestic
relations order " pursuant to 29 USC 1056" constitues an abuse of
discretion.
24 O App 3d 151, Eisler v. Eisler(1985)
It is error for the trial court to fail to make findings as to the
fair market value of each item of marital property so that an
appellate court may effectively review.
44 OS(3d) 128,541 NE(2d) 597(1989), Holcomb v Holcomb.
A vested pension plan accumulated during a marrige is a marital
asset and must be considered in conjunction with other factors
listed under RC 3105.18 and other relevant factors in dividing
marital assets and liabilities to insure the result reached is
equitable.
53 OS(3d) 120,551 NE(2d) 1292(1990),Hoyt v Hoyt.
When considering a fair and equitable distribution of pension or
retirement benefits in a divorce, the trial court must apply it's
discretion based on (1) the circumstances of the case; (2) the
status of the parties; (3) the nature, terms and conditions of the
pension or retirement plan; and (4) the reasonableness of the
result.
35 O St. 3d 93, Kaechele v. Kaechele (1988)
In making a sustanance alimony award the court must consider all
factors listed in R.C.Ã 3105.18(B). For puposes of an appellate
review, the court must detail the basis for its property allocation
and alimony award.
51 OS(3d) 64,554 NE(2d) 83(1990), Kunkle v Kunkle.
Except in cases involving a marriage of long duration, parties of
advanced age, OR a homemaker-spouse who has had little opportunity
to develope meaningful employment outside the home, where a payee
spouse has the resourses, and potential to be self-supporting, an
award of sustenance alimony should provide for the termination of
the award, to place a definative limit upon the parties rights and
responsibilities.
42 App(3d) 142,537 NE(2d) 246(Hocking 1988),Lemon v Lemon.
An unvested pension may be a marital asset under RC 3105.18 and in
determining whether the unvested pension is a marital asset the
court should consider the time left before the pension becomes
vested, the length of the marriage between the parties, and the
contribution of the parties both primarily and secondarily to the
pension plan.
24 App(3d) 74,24 OBR 129,493 NE(2d) 317 (Geauga 1985),McKay
v. McKay
A court may render a nunc pro tunc order only to place upon the
record evidence of judicial action which actually was earlier taken;
a nunc pro tunc order may not be used to modify an order.
63 O App 3d 671,Mocho v. Mocho(1990),
Trial court exceeded its discretion in its division of marrital
property and its denial of sustenance alimony.........its
distribution of marital assets, spouses' incomes and earning
capacities, its failure to state with specificity its reasons for
its decision. R.C.Ã3105.18(B)
65 O App 3d 763, Pendleton v. Pendleton(1989),
Under appropriate cicumstances, a court may award sustenance
alimony without setting a definate termination date.
52 App(3d) 117,557 NE(2d) 145(Putnam 1988),Schroeder v
Schroeder.
A divorce decree awarding specific marital property to one spouse
and "the balance of the property" to the other spouse may be
modified to fairly and completely dispose of newly disclosed
property after it is found that the parties did not disclose the
full extent of marital property.
55 App(3d) 111(Williams 1988),Welly v Welly.
In a divorce action, the trial court may either divide the interest
in a retirement plan or award it entirely to one party depending on
what would be equitable in the circumstances.
19 O App 3d 45,Willis v. Willis
Court must develop some method of valuing marital property prior to
division.
Physical condition of parties
23 O App 3d 67,Reichert v. Reichert
Court is required to consider the physical conditions of the
parties in deciding alimony.
Moving to another state
In re Fields(1989),61 O Misc. 2d 376
Moving expences necessary to seperate the offender from the child
victim may be an allowable expence.
8 O App 3d 372,In re Marriage of Barber
Where it is in the best interests of the child, the custodial
parent will be permitted to move with the child to another
jurisdiction.
Undue influance, ineffective use of counsel, other related material
10 O App 3d 44, Dipetro v. Dipetro
To vacate a seperation agreement on the basis of incompetency, a
party must prove by clear and convincing evidence that the agreement
was executed while he was mentally incompetent or under the
influance of fraud, undue influance or duress.
In re Murphy(1983),10 O App 3d 134
Seperation agreement incorporated into a dissolution decree may be
vacated under Civ. R. 60(B) where the agreement omits a substantial
and material amount of the parties' property.
8 O App 3d 52, Young v. Young(1982)
Court may refuse to incorporate a seperation agreement into a
divorce decree where the agreement was the product of one spouse's
duress and undue influance.
Wife's duty to support
5 O App 3d 46, Hacker v. Hacker
Under appropriate circumstances, a wife may be required to pay
support for children in the custody of the father.
NUNC PRO TUNC ORDERS
24 App(3d) 74,24 OBR 129,493 NE(2d) 317 (Geauga 1985) McKay
v. McKay
A court may render a nunc pro tunc order only to place upon
the record evidence of judicial action which actually was
earlier taken; a nunc pro tunc order may not be used to
modify an order.
Buckles v. Buckles (1988,Franklin Co.) 46 O App 3d 118,546
NE(2d) 965
During the pendency of an appeal a trial court continues to
have jurisdiction to exercise so long as the exercise of that
jurisdiction does not interfere with the power of the
appellate court to review the judgement under appeal and
affirm, modify, or reverse that judgement;........
Code, Rule, Statute, Law
Spousal support, property disbursement
3105.18 (C)(1)
In determining whether spousal support is appropriate and
reasonable, and in determining the nature, amount, and terms
of payment, and duration of spousal support, which is payable
either in gross or in installments, the court shall consider
all of the following factors:
(a) The income of the parties, from all sources, including
but not limited to, income derived from property divided,
disbursed, or distributed under section 3105.171 of Revised
Code;
(b) The relative earning abilities of the parties;
(c) The ages and physical, mental, and emotional conditions
of the parties;
(d) The retirement benefits of the parties;
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a
party, because he will be custodian of a minor child of the
marriage, to seek employment outside the home;
(g) The standard of living of the parties established during
the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties;
(j) The contribution of each party to the education,
training, or earning ability of the other party, including,
but not limited to, any party's contribution to the
acquisition of a professional degree of the other party.
(k) The time and expense necessary for the spouse who is
seeking spousal support to acquire education, training, or
job experience so that the spouse will be qualified to obtain
appropriate employment, provided the education, training, or
job experience, and employment is in fact, sought.
(l) The tax consequences, for each party, of an award of
spousal support;
(m) The lost income production capacity of either party that
resulted from that party's marital responsibilities;
(n) any other factor that the court expressly finds to be
relevant and equitable.
(2) In determining whether spousal support is reasonable and
in determining the amount and terms of payment of spousal
support, each party shall be considered to have contributed
equally to the production of marital income.
(H)
In divorce or legal seperation proceedings, the court may
award reasonable attorney's fees at any stage of the
proceedings, including but not limited to appeal, any
proceeding arising from a motion to modify a prior order or
decree, and any proceeding to enforce a prior order or
decree, if it determines that the other party has the ability
to pay the attorney's fees that the court awards. When the
court determines whether to award reasonable attorney's fees
to any party pursuant to this division, it shall determine
whether either party will be prevented from protecting his
interests if it does not award reasonable attorney's fees.
Investigation, Custody
3109.04 (C)
Prior to trial, the court may cause an investigation to be
made as to the character, family relations, past conduct,
earning ability, and financial worth of each parent and may
order parents and thier minor children to submit to medical,
psychological, and psychiatric examinations................
..............................................
If the court determines.................................
(E)(1)(a)(iii)
(F)(1)
In determining the best interest of a child pursuant to this
section, whether on an original decree allocating parental rights
and responsibilities for the care of the children or a modification
of a decree allocating those rights and responsibilities, the court
shall consider all relevant factors, including, but not limited to:
(h)
....; and whether there is reason to believe that either
parent has acted in a manner resulting in a child being an
abused or neglected child.
Proper Forum, Investigations, Party Actions, Court procedure
Snelling v. Gardner(1990),69 O App 3d 196
Custody of the child must be a disputed issue before the UCCJA
applies.
FLR INTERSTATE CUSTODY--TEXT OF UCCJA (Ohio laws derived from)
1 SECTION 1.[Puposes of Act; Construction of Provisions.]
2 (a) The general purposes of this Act are to:
3 (1)avoid jurisdictional competition and conflict with courts
4 of other states in matters of child custody which have in the
5 past resulted in shifting of children from state to state with
6 harmful effects on their well-being;
7 (2) promote cooperation with courts of other states to the
8 end that a custody decree is rendered in that state which can
9 best decide the case in the interest of the child;
10 (3) assure that litigation concerning the custody of a child
11 take place ordinarily in the state with which the child and his
12 family have the closest connection and where significant evidence
13 concerning his care, protection, training and personal relation-
14 ships is most readily available, and that courts of this state
15 decline the exercise of jurisdiction when the child and his
family
16 have a closer connection with another state;
17 (4) discourage continuing controversies over child custody in
18 the interset of greater stability of home enviroment and of
19 secure family relationships for the child;
20 (5) deter abductions and other unilateral removals of children
21 undertaken to obtain custody awards;
22 (6) avoid re-litigation of custody decisions of other states in
23 this state insofar as is feasible;
24 (7) facilitate the enforcement of custody decrees of other
25 states;
26 (8) promote and expand the exchange of information and
27 other forms of mutual assistance between the courts of this state
28 and those of other states concerned with the same child; and
29 (9) make uniform the law of those states which enact it.
30 (b) This Act shall be construed to promote the general purposes
31 stated in this section.
Comment
Because this uniform law breaks new ground not previously covered
by legislation, its purposes are stated in some detail. Each section
must be read and applied with these purposes in mind.
1 SECTION 2.[Definitions.] As used in this Act:
2 (1)"contestant" means a person, including a parent, who
3 claims a right to custody or visitation rights with respect to a
4 child;
5 (2)"custody determination" means a court decision and court
6 orders and instructions providing for the custody of a child, in-
7 cluding visitation rights; it does not include a decision relating
8 to child support or any other monetary obligation of any person;
9 (3)"custody proceeding" includes proceedings in which a cus-
10 tody determination is one of several issues, such as an action
for
11 divorce or seperation, and includes child neglect and dependency
12 proceedings;
13 (4)"decree" or "custody decree" means a custody determina-
14 tion contained in a judicial decree or order made in a custody
15 proceeding, and includes an initial decree and a modification
decree;
16 (5)"home state" means the state in which the child imme-
17 diately preceding the time involved lived with his parents, a
18 parent, or a person acting as parent, for at least 6 consecutive
19 months, and in the caes of a child less than 6 months old the
state
20 in which the child lived from birth with any of the persons men-
21 tioned. Periods of temporary absence of any of the named
22 persons are counted as part of the 6-month or other period;
23 (6)"initial decree" means the first custody decree concerning
24 a particular child;
25 (7)"modification decree" means a custody decree which
26 modifies or replaces a prior decree, whether made by the court
27 which rendered the prior decree or by another court;
28 (8)"physical custody" means actual possession and control
29 of a child;
30 (9)"person acting as parent" means a person, other than a
31 parent, who has physical custody of a child and who has either
32 been awarded custody by a court or claims a right to custody;
33 and
34 (10)"state" means any state, territory, or possession of the
35 United States, the Commonwealth of Puerto Rico, and the Dis-
36 trict of Columbia.
Comment
Subsection (3) indicates that "custody proceeding" is to be
understood in a broad sense. The term covers habeas corpus actions,
guardianship petitions, and other proceedings available under
general state law to determine custody. See Clark, Domestic
Relations 576-582(1968).
Other definitions are explained, if necessary, in the comments to
the sections which use the terms defined.
1 SECTION 3.[Jurisdiction.]
2 (a) A court of this State which is competent to decide child
3 custody matters has jurisdiction to make a child custody deter-
4 mination by initial decree if:
5 (1) this state (i) is the home state of the child at the time of
6 commencement of the proceeding, or (ii) had been the child's
7 home state within 6 months before commencement of the pro-
8 ceeding and the child is absent from this State because of his
9 removal or retention by a person claiming his custody or for
10 other reasons, and a parent or person acting as parent continues
11 to live in this State; or
12 (2) it is in the best interest of the child that a court of this
13 State assume jurisdiction because (i) the child and his parents,
14 or the child and at least one contestant, have a significant con-
15 nection with this State, and (ii)there is available in this State
16 substantial evidence concerning the child's present or future
care,
17 protection, training, and personal relationships; or
18 (3) the child is physically present in this State and (i) the
19 child has been abandoned or (ii) it is necessary in an emergency
20 to protect the child because he has been subjected to or threat-
21 ened with mistreatment or abuse or is otherwise neglected [or
22 dependant]; or
23 (4)(i) it appears that no other state would have jurisdiction
24 under prerequisites substantially in accordance with paragraphs
25 (1),(2), or (3), or another state has declined to exercise juris-
26 diction on the ground that this State is the more appropriate
27 forum to determine the custody of the child, and(ii) it is in the
28 best interest of the child that this court assume jurisdiction.
29 (b) Except under paragraphs (3) and (4) of subsection (a),
30 physical presence in this State of the child, or of the child and
one
31 of the contestants, is not alone sufficient to confer
jurisdiction on a
32 court of this State to make a custody determination.
33 (c) physical presence of the child, while desirable, is not a
prerequisite for jurisdiction to determine his custody.
Comment
Paragraphs (1) and (2) of subsection (a) establish the two major
bases for jurisdiction. In the first place, a court in the child's
home state has jurisdiction, and secondly, if there is no home state
or the child and his family have equal or stronger ties with another
state, a court in that state has jurisdiction. If this alternative
test produces concurrent jurisdiction in more than one state, the
mechanisms provided in sections 6 and 7 are used to assure that only
one state makes the custody decision.
"Home state" is definded in section 2(5). A 6-month period has been
selected in order to have a definite and certain test which is at
the same time based on a reasonable assumption of fact. See Ratner,
Child Custody in a Federal System, 62 Mich. L. Rev. 795,818 (1964)
who explains:
"Most American children are integrated into an American community
after living there six months; consequently this period of residence
would seem to provide a reasonable criterion for identifying the
established home."
Subparagraph (ii) of paragraph (1) extends the home state rule for
an additional six-month period in order to permit suit in the home
state after the child's departure. The main objective is to protect
a parent who has been left by his spouse taking the child along. The
provision makes clear that the stay-at-home parent, if he acts
promptly, may start proceedings in his own state if he desires,
without the necessity of attemping to base jurisdiction on paragrph
(2). This changes the law in those states which required presence of
the child as a condition for jurisdiction and consequently forced
the person left behind to follow the departed person to another
state, perhaps to several states in succession. See also subsection
(c).
Paragraph (2) comes into play either when the home state test
cannot be met or as an aternative to that test. The first situation
arises, for example, when a family has moved frequently and there is
no state where the child has lived for 6 months prior to suit, or if
the child has recently been removed from his home state and the
person who was left behind has also moved away. See paragraph (1),
last clause. A typical example of alternative jurisdiction is the
case in which the stay-at-home parent chooses to follow the departed
spouse to state 2 (where the child has lived for several months with
the other parent) and starts proceedings there. Whether the departed
parent also has access to a court in state 2, depends on the
strength of the family ties in that state and on the applicability
of the clean hands provision of section 8. If state 2, for example,
was the state of matrimonial home where the entire family lived for
two years before moving to the "home state" for 6 months, and the
wife returned to state 2 with the child with the consent of the
husband, state 2 might well have jurisdiction upon petition of the
wife. The same may be true if the wife returned to her parents in
her former home state where the child had spent several months every
year before. Compare Willmore v. Willmore, 273, Minn. 537, 143 N.W.
2d 630 (1966), cert. denied 385 U.S. 898 (1966). While jurisdiction
may exist in two states in these instances, it will not be exercised
in both states. See sections 6 and 7.
Paragraph (2) of subsection (a) is supplemented by subsection (b)
which is designed to discourage unilateral removal of children to
other states and to guard generally against too liberal
interpretation of paragraph (2). Short-term presence in the state is
not enough even though there may be intent to stay longer, perhaps
to establish a technical "domicile" for divorce or other purposes.
Paragraph (2) perhaps more than any other provision of the Act
requires that it be interpreted in the spirit of legislative
purposes expressed in section 1. The paragraph was phrased in
general terms in order to be flexible enough to cover many fact
situations too diverse to lend themselves to exact discription. But
its purpose is to limit jurisdiction rather than to proliferate it.
The first clause of the paragraph is important: jurisdiction exists
only if it is in the child's interest, not merely the interest or
convenience of the fueding parties, to determine custody in a
particular state. The interest of the child is served when the forum
has optimum access to relevent evidence about child and family.
There must be maximum rather than minimum contact with the state.
the submission of the parties to a forum, perhaps for purpose of
divorce, is not sufficient without additional factors establishing
closer ties with the state. Divorce jurisdiction does not
necessarily include custody jurisdiction. See Clark, Domestic
Relations 578 (1968).
Paragraph (3) of subsection (a) retains and reaffirms \[parens\]
\[patriae\] jurisdiction, usually exercised by juvenile court, which a
state must assume when a child is in a situation requiring immediate
protection. This jurisdiction exists when a child has been abandoned
and in emergency cases of child neglect. Presence of the child in
the state is the only prerequisite. This extraordinary jurisdiction
is reserved for extraordinary circumstances. See Application of
Lang, 9 App Div. 2d 401, 193 N.Y.S. 2d 763 (1959). When there is
child neglect without emergency or abandonment, jurisdiction cannot
be based on this paragraph.
Paragraph (4) of subsection (a) provides a final basis for
jurisdiction which is subsidiary in nature. It is to be resorted to
only if no other state could, or would, assume jurisdiction under
other criteria of this section.
Subsection (c) makes it clear that presence of the child is not a
jurisdictional requirement. Subsequent sections are designed to
assure the appearance of the child before the court.
This section governs jurisdiction to make an initial decree as well
as a modification decree. Both terms are defined in section 2.
Jurisdiction to modify an initial or modification decree of another
state is subject to additional restrictions contained in sections
8(b) and 14(a).
1 SECTION 4.[NOTICE AND OPPORTUNITY TO BE HEARD.] Before
2 making a decree under this Act, reasonable notice and opportunity
3 to be heard shall be given to the contestants, any parent whose
pa-
4 rental rights have not been previously terminated, and any person
5 who has physical custody of the child. If any of these persons is
6 outside this State, notice and opportunity to be heard shall be
given
7 pursuant to section 5.
Comment
This section lists the persons who must be notified and given an
opportunity to be heard to satify due process requirements. As to
persons in the forum state, the general law of the state applies;
others are notified in accordance with section 5. Strict compliance
with sections 4 and 5 is essential for the validity of a custody
decree within the state and its recognition and enforcement in other
states under sections 12, 13, and 15. See Restatement of the Law
Second, Conflict of Laws, Proposed Official Draft sec. 69 (1967);
and compare Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L.
Ed. 2d 62 (1965).
1 SECTION 5.[NOTICE TO PERSONS OUTSIDE THIS STATE; SUBMISSION
2 TO JURISDICTION.]
1 SECTION 6.[SIMULTANEOUS PROCEEDINGS IN OTHER STATES.]
Comments
...................................................................
In a proper case jurisdiction is yielded to the other state either
under this section or under section 7. Both must be read together.
When the courts of more than one state have juridiction under
sections 3 or 14, priority in time determines which court will
proceed with the action, but the application of the inconvenient
forum principle of section 7 may result in the handling of the case
by the other court.
While jurisdiction need not be yielded under subsection (a) if the
other court would not have jurisdiction under criteria of this Act,
the policy against simultaneous custody proceedings is so strong
that it might in a particular situation be appropriate to leave the
case to the other court even under such circumstances. See
subsection (3) and section 7.
1 SECTION 7.[INCOVENIENT FORUM.]
2 (a) A cort which has jurisdiction under this Act to make an
3 initial or modification decree may decline to exercise its
jurisdiction
4 any time before making a decree if it finds that it is an inconve-
5 nient forum to make a custody determination under the circum-
6 stances of the case and that a court of another state is a more
7 appropriate forum.
8 (b) A finding of inco0nvenient forum may be made upon the
9 court's own motion or upon motion of a party or guardian ad
10 litem or other representative of the child.
11 (c) In determining if it is an inconvenient forum, the court
shall
12 consider if it is in the interest of the child that another state
assume
13 jurisdiction. For this purpose it may take into account the
follow-
14 ing factors, amoung others:
15 (1) if another state is or recently was the child's home state;
16 (2) if another state has a closer connection with the child and
17 his family or with the child and one or more of the contestants;
18 (3) if substantial evidence concerning the child's present or
19 future care, protection, training, and personal relationships is
20 more readily available in another state;
21 (4) if the parties have agreed on another forum which is no
22 less appropriate; and
23 (5) if the exercise of jurisdiction by a court of this state
24 would contravene any of the purposes stated in section 1.
25 (d) before determining whether to decline or retain jurisdiction
26 the court may communicate with a court of another state and
27 exchange information pertinent to the assumption of jurisdiction
28 by either court with a view to assuring that jurisdiction will be
29 exercised by the more appropriate court and that a forum will be
30 available to the parties.
31 (e) If the court finds it is an inconvenient forum and that
32 a court of another state is a more appropriate forum, it may dis-
33 miss the proceedings, or it may stay the proceedings upon
condition
34 that a custody proceeding be promptly commenced in another
35 named state or upon any other conditions which may be just and
36 proper, including the condition that a moving party stipulate his
37 consent and submission to the jurisdiction of the other forum.
38 (f) The court may decline to exercise its jurisdiction under
this
39 Act if custody determination is incidental to an action for
divorce
40 or other proceeding while retaining jurisdiction over the divorce
41 or other proceeding.
42 (g) If it appears to the court that it clearly is an
inappropriate
43 forum it may require the party who commenced the proceedings to
44 pay, in addition to the costs of the proceedings in this State,
nec-
45 essary travel and other expences, including attorney's fees,
incurred
46 by other parties or thier witnesses. Payment is to be made to the
47 clerk of the court for remittance to the party.
48 (h) Upon dismissal or stay of proceedings under this section the
49 court shall inform the court found to be more appropriate
50 forum of this fact, or if the court which would have jurisdiction
in
51 the other state is not certainly known, shall transmit the
informa-
52 tion to the court administrator or other appropriate official for
53 forwarding to the appropriate court.
54 (i) Any communication received from another state informing
55 this State of a finding of inconvenient forum because a court of
this
56 State is a more appropriate forum shall be filed in the custody
57 registry of the appropriate court. Upon assuming jurisdiction the
58 court of this State shall inform the original court of this fact.
Comment
The purpose of this provision is to encourage judicial restaint in
exercising jurisdiction whenever another state appears to be in a
better position to determine custody of a child. It serves as a
second check on jurisdiction once the test of sections 3 or 14 has
been met.
The section is a paricular application of the inconvenient foum
principle, recognized in most states by judicial law, adapted to the
special needs of child custody cases. The terminology used follows
section 84 of the Restatement of the Law Second, Conflict of Laws,
Proposed Official Draft (1967). Judicial restrictions or exceptions
to the inconvenient forum rule made in some states do not apply to
this statutory scheme which is limited to custody cases.
Like section 6, this section stresses interstate judicial
communication and cooperation. When there is doubt as to which is
the more appropriate forum, the question may be resolved by
consultation and cooperation amoung the courts involved.
Paragraphs (1) through (5) of subsection (c) specify some, but not
all, considerations which enter into a court determination of
inconvenient forum. Factors customarily listed for purposes of the
general principle of the inconvenient forum (such as convenience of
the parties and the hardship to the defendant) are also pertenent,
but may under the circumstances be of secondary importance because
the child who is not a party is the central figure in the
proceedings.
Part of subsection (e) is derived from Wis. Stat. Ann., sec.
262.19(1).
Subsection (f) makes it clear that a court may divide a case, that
is, dismiss part of it and retain the rest. See section 1.05 of the
Uniform Interstate and International Procedure Act. When the custody
issue comes up in a divorce proceeding, courts may have frequent
occasion to decline jurisdiction as to that issue (assuming that
custody jurisdiction exists under sections 3 or 14).
Subsection (g) is an adaptation of Wis. Stat. Ann., sec. 262.20.
Its purpose is to serve as a deterrent against "frivolous
jurisdiction claims," as G.W. Foster states in the Revision Notes to
the Wisconsin provision. It applies when the forum chosen is
seriously inappropriate considering the jurisdictional requirements
of the Act.
1 SECTION 8.[JURISDICTION DECLINED BY REASON OF CONDUCT.]
2 (a) If the petitioner for an initial decree has wrongfully taken
3 the child from another state or has engaged in similar
reprehensible
4 conduct the court may decline to exercise jurisdiction if this is
5 just and proper under the circumstances.
6 (b) Unless required in the interest of the child, the court shall
7 not exercise its jurisdiction to modify a custody decree of
another
8 state if the petitioner, without consent of the person entitled to
9 custody, has improperly removed the child from the physical
10 custody of the person entitled to custody or has improperly re-
11 tained the child after a visit or other temporary relinquishment
12 of physical custody. If the petitioner has violated any other
13 provision of a custody decree of another state the court may
14 decline to exercise its jurisdiction if this is just and proper
under
15 the circumstances.
16 (c) In appropriate cases a court dismissing a petition under
17 this section may charge the petitioner with necessary travel and
18 other expences, including attorney' fees, incurred by other
parties
19 or their witnesses.
Comment
This section incorporates the "clean hands doctrine", so named by
Ehrensweig, Interstate Recognition of Custody Decrees, 51 Mich. L.
Rev. 345 (1953). Under this doctrine courts refuse to assume
jurisdiction to reexamine an out-of-state custody decree when the
petitioner has abducted the child or has engaged in some other
objectionable scheme to gain or regain custody of the child or has
engaged in some other objectionable scheme to gain or retain
physical custody of the child in violation of the decree. See Fain,
Custody of Children, The California Family Lawyer I, 539,546 (1961);
Ex Parte Mullins, 26 Wash. 2d 419,174 P. 2d 790 (1946); Crocker v.
Crocker, 122 Colo. 49, 219 P. 2d 853 (1958). But when adherence to
this rule would lead to punishment of the parent at the expense of
the wellbeing of the child, it is often not applied. See Smith v.
Smith, 135 Cal. App. 2d 100,286 P. 2d 1009 (1955) and in re
Guardianship of Rogers, 100 Ariz. 269,413 P. 2d 744 (1966).
Subsection (a)_ extends the clean hands principle to cases in which
a custody decree has not yet been rendered in any state. For
example, if upon de facto seperation the wife returned to her own
home with the children without objection by her husband and lived
there for two years without hearing from him, and the husband
without warning forcible removes the children one night and brings
them to another state, a court in that state alough it has
jurisdiction after 6 months may decline to hear the husband's
custody petition. "Wrongfully" taken under this subsection does not
mean that a "right" has been violated-both husband and wife as a
rule have a right to custody until a court determination is made-but
that one party's conduct is so objectionable that a court in the
exercise of its inherent equity powers cannot in good concience
permit that party access to its jurisdiction.
Subsection (b) does not come into operation unless the court has
power under section 14 to modify the custody decree of another
state. It is a codification of the clean hands rule, except that it
differentiates between (1) a taking or retention of the child and
(2) other violations of custody decrees. In the case of illegal
removal or retention refusal of jurisdiction is mandatory unless the
harm done to the child by denial of jurisdiction outweighs the
parental misconduct. Compare Smith v. Smith and in Re Guadianship of
Rogers, \(supra\); and see In Re Walter,228 Cal. App. 2d 217,39 Cal.
Rpts. 243 (1964) where the court assumed jurisdiction after both
parents had been guilty of misconduct. The qualifying word
"improperly" is added to exclude cases in which a child is withheld
because of illness or other emergency, or in which there are other
special justifying ciscumstances.
The most common violation of the second category is the removal of
the child from the state by the parent who has the right to custody,
thereby frustating the exercise of visitation rights of the other
parent. The second sentence of the subsection (b) makes refusal of
jurisdiction entirely discretionary in this situation because it
depends on the circumstances where non-compliance with the court
order is serious enough to warrent the drastic sanction of denial of
jurisdiction.
Subsection (c) adds a financial deterrent to child stealing and
similar reprehensible conduct.
1 SECTION 9.[INFORMATION UNDER OATH TO BE SUBMITTED TO THE
2 COURT.]
3 (a) Every party in a custody proceeding in his first pleading
4 or in an affidavit attached to that pleading shall give
information
5 under oath as to the child's present address, the places where the
6 child has lived within the last 5 years, and the names and present
7 addresses of the persons with whom the child has lived during
8 that period. In this pleading or affidavit every party shall
further
9 declare under-oath whether:
10 (1) he has participated (as a party, witness, or any other
11 capacity) in any other litigation concerning the custody of the
12 same child in this or any other state;
13 (2) he has information of any custody proceedings concerning
14 the child pending in a court of this or any other state; and
15 (3) he knows of any person not a party to the proceedings
16 who has physical custody of the child or claims to have custody
17 or visitation rights with respect to the child.
18 (b) If the declaration as to any of thew above items is in the
19 affirmative the declarant shall give additional information under
20 oath as required by the court. The court may examine the parties
21 under oath as to details of the information furnished and as to
22 other matters pertinent to the court's jurisdiction and the dis-
23 position of the case.
24 (c) Each party has a continuing duty to inform the court of any
25 custody proceeding concerning the child in this or any other
state
26 of which he obtained information during this proceeding.
Comment
It is important for the court to receive the information listed and
other pertinent facts as early as possible for purposes of
determining its jurisdiction, the joinder of additional parties, and
the identification of courts in other states which are to be
contacted under various provisions of the Act. Information as to
custody litigation and other pertinent facts occuring in other
countries may also be elicited under this section in combination
with section 23.
1 SECTION 10. [ADDITIONAL PARTIES.] If the court learns from in-
2 formation furnished by the parties pursuant to section 9 or from
3 other sources that a person not a party to the custody proceeding
4 has physical custody of the child or claims to have custody or
5 visitation rights with respect to the child, it shall order that
person
6 to be joined as a party and to be duly notified of the pendency of
7 the proceeding and of his joinder as a party. If the person joined
8 as a party is outside this State he shall be served with process
or
9 otherwise notified in accordance with section 5.
Comment
The pupose of this section is to prevent re-litigations of the
custody issue when these would be for the benefit of third claimants
rather than the child. If the immediate controvercy, for example, is
between the parents, but relatives inside or outside the state also
claim custody or have physical custody which may lead to a future
claim to the child, they must be brought into the proceedings. The
courts are given an active role here as under other sections of the
Act to seek out the necessary information from formal or informal
sources.
1 SECTION 11.[APPEARANCE OF PARTIES AND THE CHILD.]
COMMENT
Since a custody proceeding is concerned with the past and future
care of the child by one of the parties,...............
1 SECTION 12.[BINDING FORCE AND RES JUDICIA EFFECT OF CUSTODY
2 DECREE.] A custody decree rendered by a court of this State which
3 had jurisdiction under section 3 binds all parties who have been
4 served in this state or notified in accordance with section 5 or
who
5 have submitted to the jurisdiction of the court, and who have been
6 given an opportunity to be heard. As to these parties the custody
7 decree is conclusive as to all issues of law and fact decided and
as
8 to the custody determination made unless and until that determi-
9 nation is modified pursuant to law, including the provisions of
this
10 Act.
Comment
This section deals with the intra-state validity of custody decrees
which provides the basis for their interstate recognition and
enforcement. The two prerequisites are (1) jurisdiction under
section 3 of this Act and (2) strict compliance with due process
mandates of notice and opportunity to be heard.
1 SECTION 13.[RECOGNITION OF OUT-OF-STATE CUSTODY DECREES.]
2 The courts of this State shall recognize and inforce an initial or
3 modification decree of a court of another state which had assumed
4 jurisdiction under statutory provisions substantially in
accordance
5 with this Act or which was made under factual circumstances
6 meeting the jurisdictional standards of the Act, so long as this
7 decree has not been modified in accordance with jurisdictional
8 standards substantially similar to those of this Act.
Comment
This section and sections 14 and 15 are the key provisions which
guarantee a great measure of security and stability of environment
to the "interstate child" by discouraging relitigations in other
states. See Section 1, and see Ratner, Child Custody in a Federal
System, 62 Mich. L. Rev. 795, 828 (1964)..........................
Recognition and enforcement is mandatory if the state in which the
prior decree was rendered 1) has adopted this Act, 2) has statutory
jurisdictional requirements substantially like this Act, or 3) would
have had jurisdiction under the facts of the case if this Act had
been law in the state. Compare Comment, Ford v. Ford: Full Faith and
Credit to Child Custody Decrees? 73 Yale LJ. 134, 148 (1963).
"Jurisdiction" or "jurisdictional standards" under this section
refers to the requirements of section 3 in the case of initial
decrees and to the requirements of sections 3 and 14 in the case of
modification decrees......................... .
The mandate of this section could cause problems if the prior
decree is a punitive or disciplinary measure. See Ehrenzweig,
Inter-state Recognition of Custody Decrees, 51 Mich. L. Rev. 345,370
(1953). .............................. .
1 SECTION 14.[MODIFICATION OF CUSTODY DECREE OF ANOTHER STATE.]
2 (a) If a court of another state has made a custody decree, a
3 court of this state shall not modify that decree unless (1) it ap-
4 pears to the court of this State that the court which rendered the
5 decree does not now have jurisdiction under jurisdictional prere-
6 quistes substantially in accordance with this Act or has declined
to
7 assume jurisdiction to modify the decree and (2) the court of this
8 State has jurisdiction.
9 (b) If a court of this State is authorized under subsection (a)
10 and section 8 to modify a custody decree of another state it
shall
11 give due consideration to the transcript of the record and other
12 documents of all previous proceedings submitted to it in
accordance
13 with section 22.
Comment
Courts which render a custody decree normally retain continuing
jurisdiction to modify the decree under local law. ........... .
In order to achieve greater stability of custody arrangements and
avoid forum shopping, subsection (a) declares that other states will
defer to the continuing jurisdiction of the court of another state
as long as that state has jurisdiction under the standards of this
Act. In other words, all petitions for modification are to be
addressed to the prior state if that state has sufficient contact
with the case to satify section 3. ..................... .
........................
The prior court has jurisdiction to modify under this section even
though its original assumption of jurisdiction did not meet the
standards of this Act, as long as it would have jurisdiction now,
that is, at the time of the petition for modification.
If the state of the prior decree declines to assume jurisdiction to
modify the decree, another state with jurisdiction under section 3
can proceed with the case. That is not so if the prior court
dimissed the petition on its merits.
Respect for the continuing jurisdiction of another state under this
section will serve the purpose of this Act only if the prior court
will assume a corresponding obligation to make no changes in the
existing custody arrangement which are not required for the good of
the child. .......................... .
Under subsection (b) transcripts of prior proceedings if received
under section 22 are to be considered by the modifying court. The
purpose is to give the judge the opportunity to be as fully informed
as possible before making a custody decision. "One court will seldom
have so much of the story that another's inquiry is unimportant"
says Paulsen, Appointment of a Guardian in the Conflict of Laws,
45 Iowa L. Rev. 212,226 (1960). See also Ehrenzweig, the Interstate
Child and Uniform Legislation: A Plea for Extra-Litigious
Proceedings, 64 Mich. L. Rev. 1, 6-7 (1965); and Ratner, Legislative
Resolution of the Interstate Custody Problem: A Reply to Professor
Currie and a Proposed Uniform Act, 38 S. Cal. L. Rev. 183, 202
(1965). How much consideration is "due" this transcript, whether or
under what conditions it is received in evidence, are matters of
local, internal law which are not affected by this interstate act.
1 SECTION 15.[FILING AND ENFOREMENT OF CUSTODY DECREE OF
2 ANOTHER STATE.]
1 SECTION 16.[REGISTRY OF OUT-OF-STATE CUSTODY DECREES AND
2 PROCEEDINGS.]
1 SECTION 17. [CERTIFIED COPIES OF CUSTODY DECREE.]
1 SECTION 18.[Taking Testimony in Another State.] In addition
2 to other procedural devices available to a party,any party to the
3 proceeding or guardian ad litem or other representative of the
4 child may adduce testimony of witnesses, including parties and
5 the child, by deposition or otherwise, in another state. The court
6 on its own motion may direct that the testimony of a person be
7 taken in another state and may prescribe the manner in which and
8 the terms upon which the testimony shall be taken.
Comment
Sections 18 to 22 are derived from sections 3.01 and 3.02 of the
Uniform Interstate and International Procedure Act, 9B U.L.A.
305, 321, 326(1966); from ideas underlying the Uniform Reciprical
Enforcement of Support Act; and from Ehrenzweig, the Interstate
Child and Uniform Legislation: A Plea for Extralitigious
Proceedings, 64 Mich. L. Rev. 1 (1965). They are designed to fill
the partial vacuum which inevitably exists in cases involving an
"interstate child" since part of the essential information about the
child and his relationship to other persons is always in anotherv
state. Even though jurisdiction is assumed under sections 3 and 7 in
the state where much (or most) of the pertinent facts are readily
available, some important evidence will unavoidably be elsewhere.
Section 18 is derived from portions of section 3.01 of the Uniform
Interstate and International Procedure Act,9B U.L.A. 305,321. The
first sentence relates to depositions, written interogatories and
other discovery devices which may be used by parties or
representatives of the child. The procedural rules of the state
where the devise is used are applicable under this sentence. The
second sentence empowers the court itself to initiate the gathering
of out-of-state evidence which is often not supplied by the parties
in order to give the court a complete picture of the child's
situation, especially as it relates to a custody claimant who lives
in another state.
1 SECTION 19.[HEARINGS AND STUDIES IN ANOTHER STATE; ORDERS TO
2 APPEAR.]
3 (a) A court of this State may request the appropriate court of
4 another state to hold a hearing to adduce evidence, to order a
party
5 to produce or give evidence under other procedures of that state,
6 or to have social studies made with respect to the custody of a
child
7 involved in proceedings pending in the court of this State,and to
8 forward to the court of this State certified copies of the
transcript
9 of the record of the hearing, evidence otherwise adduced, or any
10 social studies prepared in compliance with the request. The cost
11 of the services may be assessed against the parties or, if
necessary
12 ordered paid by the [County,State].
13 (b) A court of this State may request the appropriate court of
14 another state to order a party to custody proceedings pending in
15 the court of this State to appear in the proceedings, and if that
16 party has physical custody of the child, to appear with the
child.
17 The request may state that travel and other necessary expences
18 of the party and of the child whose appearance is desired will be
19 assessed against another party or will otherwise be paid.
Comment
Section 19 relates to assistance sought by a court of the forum
state from a court of another state. See comment to Section 18.
Subsection (a) covers any kind of evidentiary procedure available
under the law of the assisting state which may aid the court in the
requesting state, including custody investigations (social studies)
if authorized by the law of the other state. Under what conditions
reports of social studies and other evidence collected under this
subsection are admissible in the requesting state, is a matter of
internal state law not covered in this interstate statute.
Subsection (b) serves to bring parties and the child before the
requesting court, backed up by the assisting court's contempt
powers. See section 11.
1 SECTION 20 [ASSISTANCE TO COURTS OF OTHER STATES.]
2 (A) Upon request of the court of another state the courts of this
3 State which are competent to hear custody matters may order a
4 person in this State to appear at a hearing to adduce evidence or
5 to produce or give evidence under other procedures available in
6 this State [or may order social studies to be made for use in a
7 custody proceeding in another state]. A certified copy of the
tran-
8 script of the record of the hearing or the evidence otherwise ad-
9 duced [and any social studies prepared] shall be forwarded by the
10 clerk of the court to the requesting court.
11 (b) A person within this State may voluntarily give his testi-
12 mony or statement in this State for use in a custody proceeding
13 outside this state.
14 (c) Upon request of the court of another state a competent court
15 of this State may order a person in this State to appear alone or
16 with the child in a custody proceeding in another state. The
court
17 may condition compliance with the request upon assurances by the
18 other state that state travel and other necessary expences will
be
19 advanced or reimbersed.
Comment
Section 20 is the counterpart of section 19. It empowers local
courts to give help to out-of-state courts in custody cases. See
comments to sections 18 and 19. The referances to social studies
have been placed in brackets so that states without authorization to
make social studies outside of juvenile court proceedings may omit
them if they wish. Subsection (b) reaffirms the existing freedom of
persons within the United States to give evidence for use in
proceedings elsewhere. It is derived from section 3.002 (b) of the
Interstate and International Procedure Act, 9B U.L.A. 327 (1966).
1 SECTION 21.[PRESERVATION OF DOCUMENTS FOR USE IN OTHER
2 STATES.] In any custody proceeding in this State the court shall
3 preserve the pleadings,orders and decrees, any record that has
been
4 made of its hearings, social studies, and other pertinent
documents
5 until the child reaches [18,21] years of age. Upon appropriate
6 request of the court of another state the court shall forward to
the
7 other court certified copies of any or all of such documents.
Comment
See comments to sections 18 and 19. Documents are to be preserved
until the child is old enough that further custody disputes are
unlikely. A lower figure than the ones suggested in the brackets may
be inserted.
1 SECTION 22.[REQUEST FOR COURT RECORDS OF ANOTHER STATE.] If
2 a custody decree has been rendered in another state concerning a
3 child involved in a custody proceeding pending in a court of this
4 State, the court of this State upon taking jurisdiction of the
case
5 shall request of the court of the other state a certified copy of
the
6 transcript of any court record and other documents mentioned in
7 section 21.
Comment
This is the counterpart of section 21. See comments to sections 18,
19, and 14(b).
1 SECTION 23.[INTERNATIONAL APPLICATION.]
1 [SECTION 24.[PRIORITY.] Upon the request of a party to a cus-
2 tody proceeding which raises a question of the existance or
exercise of
3 jurisdiction under this Act the case shall be given calender
priority
4 and handled expeditiously.]
Comment
Judicial time spent in determining which court has or should
exercise jurisdiction often prolongs the period of uncertainty and
turmoil in a child's life more than is necessary. The need for
speedy adjudication exists, of course, with respect to all aspects
of child custody litigation. The priority requirement is limited to
jurisdictional questions because an all encompassing priority would
be beyond the scope of this Act. Since some states may have or wish
to adopt a statutory provision or court rule of wider scope, this
section is placed in brackets and may be omitted.
1 SECTION 25.[SERVABILITY.] if any provision of this Act or the
2 application thereof to any person or circumstances is held invalid
3 its invalidity does not affect other provisions or applications of
the
4 Act which can be given effect without the invalid provision or
5 application, and to this end the provisions of this Act are
severable.
1 SECTION 26.[SHORT TITLE.] This Act mat be cited as the Uniform
2 Child Custody Jurisdiction Act.
3109.24
41 App(3d) 206,534 NE(2d) 1229 (Medina 1987), Daerr v. Daerr
RC 3109.24 contemplates that jurisdiction be exercised only after
there has been " some cooperation, exchange of information and
communication" between two states.
3109.25(A)
A court that has jurisdiction to make an initial or modification
decree may decline to exercise it's jurisdiction any time before
making a decree if it finds that it is an inconvenient forum to make
parenting determination under the circumstances of the case and that
a court of another state is a more appropriate forum.
(B) A finding of inconvenient forum may be made upon the court's own
motion or upon motion of a party or guardian ad litem or other
representative of the child.
(C) In determining if it is an inconvenient forum, the court shall
consider if it is the interest of the child that another state
assume jurisdiction. For this purpose it may take into account, but
not limited to, any of the following factors:
(1) if another state is or recently was the children's home state;
(2) If another state has a closer connection with the child and his
family or one or more of the contestants;
(3) If substantial evidence concerning the child's present or future
care, protection, training, and personal relationships is more
readily available in another state.
(G)
If it appears to the court that it clearly is an inappropriate
forum, it may require the party who commenced the proceedings to
pay, in addition to the costs of the proceedings in this state,
necessary travel and other expenses, including attorney's fees,
incurred by other parties or thier witnesses. Payment shall be made
to the clerk of court for remittance to the proper party.
3109.26(A)
If the petitioner for an initial decree has wrongfully taken
the child from another state or has engaged in similar
conduct, the court may decline to exercise jurisdiction, if
this is just and proper under the circumstances.
Constitutional Guaranties
Ohio Constitution
Art 1
Ã1
All men are, by nature, free and independant, and have
certain inalienable rights, amoung which are those of
enjoying and defending life and liberty, acquiring,
possessing, and protecting property, and seeking and
obtaining happiness and safety.
Ã9
......... Excessive bail shall not be required; nor
excessive fines imposed; nor cruel and unusual punishments
inflicted.
Ã10
.......... In any trial, in any court the party accused shall
be allowed to appear and defend in person and with counsel;
........; and to have compulsory process to procure witnesses
in his behalf, and a speedy public trial by an impartial jury
of the county in which the offence is alleged to have
committed;..............., always securing to the accused
means and the opportunity to be present in person and with
counsel...........
Ã15
Ã16
All courts shall be oopen, and every person, for an injury
done him in his land, goods, person, or reputation, shall
have remedy by due course of law, and shall have justice
administered without denial or delay
Ã20
This enumeration of rights shall not be construed to impair
or deny others retained by the people; and all powers, not
herin delegated, remain with the people.
Art IV
(B)(1) The courts of appeals shall have original jurisdiction in the
following:
(f) In any cause on review as may be necessary to its complete
determination.
(2) Courts of appeals shall have such jurisdiction as may be
provided by law to review and affirm, modify, or reverse judgements
or final orders of the courts of record inferior to the court of
appeals within the district and shall have such appellate
jurisdiction as may be provided by law to review and affirm, modify,
or reverse final orders or actions of administrative officers or
agencies.
Ã4
(A) ................... In the interest of the fair,
impartial, speedy, and sure administration of justice,......
Art XV
Ã7
Every person chosen or appointed to any office under this
state, before entering upon the discharge of its duties,
shall take an oath or affermation, to support the
Constitution of the United States, and of this state, and
also an oath of office.
United States
We the People of the United States, in order to form a more
perfect union, establish justice, insure domestic
tranquility, provide for the common defence, promote the
general welfare, and secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this
Constitution for the United States of America.
ART III
Sec. 1
The judicial power of the United States, shall be vested in
one Supreme Court, and in such inferior courts as the
Congress may from time to time ordain and establish. The
judges, both of the Supreme and inferior courts, shall hold
thier offices during good behavior,............
Sec. 2
(1) The judicial power shall extend to all cases, in law and
equity, arising under this Constitution, the laws of the
United States...............................: -to
controversies to which the United states shall be a party;-
to controversies between two or more States;- between a State
and citizens of another State;- between citizens of different
States;.......................
Art. IV
Sec. 1
Full faith and credit shall be given in each State to the
public acts, records, and judicial proceedings of every other
State. ............
Sec. 2
(1) The citizens of each State shall be entitled to all
privilages and immunities of citizens in the several States.
Art. VI
Sec. 2
This Constitution, and the laws of the United States which
shall be made in pursuance thereof; and all treaties made, or
which shall be made, under authority of the United States,
shall be the supreme law of the land; and the judges in every
State shall be bound thereby, anything in the constitution or
laws of any State to the contrary notwithstanding.
Articles and Amendments
Art. 1
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or of the
right of the people peaceably to assemble, and to petition
the government for redress of grievances.
Art. V
No person........................nor shall be compelled in
any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law; ........
Art. VI
..........................; to have compulsory process for
obtaining witnesses in his favor, and to have the assitance
of counsel for his defence.
Art. VIII
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
Art. IX
The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained
by the people.
Art. XIV
Sec. 1
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny any person
within its jurisdiction the equal protection of the laws.
Art. XXVII
(proposed to the States for ratification, March 22, 1972,
legislative intent)
Sec. 1
Equality of rights under law shall not be denied or abridged
by the United States or by any State on account of sex.
CRIMINAL
2921.11 Perjury
(A) No person, in any official proceeding, shall knowingly
make a false statement under oath or affermation, or
knowingly swear or affirm the truth of a false statement
previously made, when either is material.
(B) A falsification is material, regardless of its
admissibility in evidence, if it can affect the course or
outcome of the proceeding. It is no defence to a charge under
this section that the offender mistakenly believed a
falsification to be immaterial.
(C) It is no defence to a charge under this section that the
oath or affermation was administered or taken in an irregular
manner.
(F) Whoever violates this section is guilty of perjury, a
felony of the third degree.
2921.12 Tampering with evidence
(A) No person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to
be instituted, shall do any of the following:
(1) Alter, destroy, conceal, remove any record, document, or
thing, with purpose to impair its value or availability as
evidence in such proceeding or investigation;
(2) Make, present, or use any record, document, or thing,
knowing it to be false and with purpose to mislead a public
official who is or may be engaged in such proceeding or
investigation, or with purpose to corrupt the outcome of any
such proceeding or investigation.
(B) Whoever violates this section is guilty of tampering with
evidence, a felony of the third degree.
2921.13 Falsification
(A) No person shall knowingly make a false statement, or
knowingly swear or affirm the truth of a false statement
previously made, when any of the following applies:
(1) The statement is made in any official proceeding.
(2) The statement is made to incriminate another.
(3) The statement is made with the purpose to mislead a
public official in performing his official function.
(11) The statement is knowingly made to a probate court in
connection with any action, proceeding, or other matter
within its jurisdiction, either orally or in a written
document, including, but not limited to, an application,
petition, complaint, or other pleading, or an inventory,
account or report.
(D)(1) Whoever violates division (A)(1),(2),(3),(4),(5),(6),
(7),(8),(11), or (12) of this section is guilty of
falsification, a misdemeanor of the first degree.
Commonwealth Land Title Ins. Co. v. Davis(1989),63 O App 3d
521
Court properly found defendants guilty of contempt and
imposed a sentence where they concealed business records
which were ordered to be turned over to a receiver.
2151.03 "Neglected child" defined
As used in sections 2151.01 to 2151.54, inclusive, of the
Revised Code, "neglected child" includes any child:
(B) Who lacks proper parental care because of the faults or
habits of his parents, guardian, or custodian;
(C) Whose parents, guardian, or custodian neglects or refuses
to provide him with proper or necessary subsistance,
education, medical or sugical care, or other care necessary
for his health, morals, or well being;
2151.031 "Abused child" defined
As used in sections 2151.01 to 2151.54 of the Revised Code,
an "abused child" includes any child who:
(B) Is endangered as defined in secdtion 2919.22 of the
Revised Code, except that the court need not find that any
person has been convicted under that section in order to find
that the child is an abused child;
2151.352 Right to counsel O Const Art 1 Ã10
2151.353 Disposition of abused, neglected, or dependant child
(A) If a child is adjudicated an abused, neglected, or
dependant child, the court may make any of the following
orders of disposition:
(3) Award legal custody of the child to either parent or to
any other person who, prior to the dispositional hearing,
files a motion requesting legal custody of the child;
(B) No order for ................... right to be represented
by counsel and to have counsel appointed pursuant to Chapter
120, of the Revised Code if they are indigent.
(C) If the court issues an order for protective supervision
pursuant to division (A)(1) of this section, the court may
place any reasonable restrictions upon the child, the child's
parents, guardian, or custodian, or any other person,
including but not limited to, any of the following:
(1) Order a party, within forty-eight hours after issuance
of the order, to vacate the child's home indefinately or for
a specified period of time;
(2) Order a party, a parent of the child, or physical
custodian of the child to prevent any particular person from
having contact with the child;
(3) Issue an order restraining or otherwise controlling the
conduct of any person which conduct would not be in the best
interest of the child.
2151.421 persons required to report injury or neglect;
procedures on receipt of report
(A)(1) No attorney, ......, licenced professional counselor,
......, who is acting in his official professional capacity
and knows or suspects that a child under eighteen years of
age or a physically or mentally handicapped child under
twenty-one years of age has suffered or faces a threat of
suffering any physical or mental wound, injury, disability,
or condition of nature that reasonably indicates abuse or
neglect of the child, shall fail to immediately report or
cause reports to be made of that knowledge or suspicion to
the children services board, the county department of human
services exercising the children services function, or a
municipal or county peace officer in the county in which the
child resides or in which the abuse or neglect is occurring
or has occurred.
(C) Any report made pursuant to division (A) or (B) of this
section shall be made forthwith by telephone or in person
forthwith, and shall be followed by a written report, if
requested by the receiving agency or officer. The written
report shall contain:
(1) The names and addresses of the child and his parents or
the person or persons having custody of the child, if known;
(2) The child's age and nature and extent of the child's
known or suspected injuries, abuse, or neglect or of the
known or susupected threat of injury, abuse, or neglect
including any evidence of previous injuries, abuse, or
neglect;
(3) Any other information that might be helpful in
establishing the cause of the known or suspected injury,
abuse, or neglect, or of the known or suspected threat of
injury, abuse, neglect.
(D) Upon the receipt of a report concerning the possible
abuse or neglect of a child or the possible threat of abuse
or neglect of a child, the municipal or county peace officer
who receives the report shall refer the report to the
appropriate county department of human services or children
sevices board.
2919.22 Endangering children
(A) No person, who is the parent, guardian, custodian, person
having custody or control, or person in loco parentis of a
child under eighteen years of age or a mentally or physically
handicapped child under twenty-one years of age, shall create
a substantial risk to the health or safety of the child, by
violating a duty of care, protection, or support.
(B) no person shall do any of the following to a child under
eighteen years of age or a mentally or physically handicapped
child under twenty-one years of age:
(1) Abuse the child;
Civ R 60 Relief from judgement or order
(B) Mistakes; inadvertance; excusable neglect; newly
discovered evidence; fraud; etc.
On motion and upon such terms are just, the court may relieve a
party or his representative from final judgement, order or
proceeding for the following reasons:(1) mistake, inadvertance,
suprise or excusable neglect;(2) newly discovered evidence which by
due diligence could not have been discovered in time to move for a
new trial under Rule 59(B); (3)fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation or other misconduct of
an adverse party; (4) the judgement has been satisfied, released or
discharged, or a prior judgement upon which it is based has been
reversed or otherwise vacated, or is no longer equitable that the
judgement should have prospective application; or (5) any other
reason justifying relief from the judgement. The motion shall be
made within a reasonable time, and for reasons (1),(2),(3) not more
than one year after the judgement, order or proceeding was entered
or taken. A motion under this subdivision (B) does not affect the
finality of a judgement or suspend its operation.
The procedure for obtaining any relief from a judgement
shall be by motion as prescribed in these rules.
Civ R 75(G)
The trial court may, when a motion to modify a custody, support or
alimony order is filed prior to the filing of the notice of appeal
modify the order for the period of the pendency of the appeal upon
such terms as to bond or otherwise as it considers proper for the
security of the rights of the adverse party and in the best interest
of the children involved. Rule 62(B) does not apply to custody,
alimony or support orders. When appeal is taken by any party, the
court of appeals may grant like orders concerning custody, support
or alimony during pendency of the appeal.
Ã519 Unnecessary or immaterial matters
55 O App 3d 153, motion overr 41 OS3d 717,535 NE2d 313,
Frank v. Valcan Materials Co.(1988,Erie Co.)
Appellate courts are restrained from making premature declarations
upon merely potential controversies.
Ã522 Moot questions
30 OS3d 28,30 OBR 33,505 NE2d 966, Franchise Developers,Inc.
v. Cincinnati(1987)
Although a case may be moot with respect to one of the litigants,
this court may here the appeal where there remains a debatable
constitutional question to resolve, or where the matter appealed is
one of great public or general interest.
28 USCS Ã1738A
In Patricia R. v Andrew W.(1983) 121 Misc 2d 103,467 NY S 2d
322 the court finds:
"No condition of wrong doing is necessary to invoke
provisions of Parental Kidnapping Prevention Act. (28 USCS Ã
1738A)"
In Arbogast v Arbogast(1984,W.Va.)327 SE2d 675 the court
finds that:
"Before custody decree is entitled to recognition and
enforcement under 28 USCS Ã 1738A, it must be demonstrated
that decreeing court had jurisdiction of parties as well as
of subject matter."
TEXT
(a) The appropriate authorities of every State shall enforce
according to its terms, and shall not modify except as
provided in subsection (f) of this section, any child custody
determination made consistently with the provisions of this
section by a court of another State.
(b) (3) ............. Periods of temporary absence of any of
such persons are counted as part of the six-month or other
period;
(7) "physical custody" means actual possession and control of
a child
(c) A child custody determination made by a court of a State
is consistent with the provisions of this section only if-
(2)(B)(i) it appears that no other State would have
jurisdiction under subparagraph (A), and (ii) it is the best
interest of the child that a court of such State assume
jurisdiction because (I) the child and his parents, or the
child and at least one contestant, have a significant
connection with such State other than mere physical presence
in such State, and there is available in such State
substantial evidence concerning the child's present and
future care, protection, training, and personal
relationships;
Congressional findings and declaration of purposes (appears as 42
USCS Ã 1395\[1\], note provides:
"(a) The congress finds that-
(1) there is a growing number of cases annually involving
disputes between persons claiming rights of custody
and visitation of children under the laws, and in the courts
of different States,.........;
(2) the laws and practices by which the courts of those
jurisdictions determine thier jurisdiction to decide such
disputes, and the effect to be given the decisions of such
disputes by the courts of other juridictions, are often
inconsistent and conflicting;
(3) those characteristics of the law and practice in such
cases, along with the limits imposed by a Federal system on
the authority of each such jurisdiction to conduct
investigations and take other actions outside its own
boundaries, contribute to a tendency of parties involved in
such disputes to frequently resort to the seizure, restraint,
concealment, and interstate transportation of children, the
disregard of court orders, excessive relitigation of cases,
obtaining of conflicting orders by the courts of various
jurisdictions, and interstate travel and communication that
is so expensive and time consuming as to disrupt thier
occupations and commercial activities; and
(4) amoung the results of those conditions and activities are
the failure of the courts of such jurisdiction to give full
faith and credit to judicial proceedings of the other
jurisdictions, the deprivation or rights of liberty and
property without due process of law, burdens on commerce
amoung such jurisdictions and with foreign nations, and harm
to the welfare of children and thier parents and other
custodians.
(b) For these reasons it is necessary to establish a national
system for locating parents and children who travel from one
jurisdiction to another and are concealed in connection with
such disputes, and to establish national standards under
which the courts of such jurisdiction will determine thier
jurisdiction to decide such diputes and the effect to be
given by each such jurisdiction to such decisions by the
courts of other jurisdictions.
(c) The general purpose of sections 6 to 10 of this act
(which, amoung other things, enact this note; for full
classification, consult USCS Tables volumes) are to-
(1) promote cooperation between State courts to the end that
a determination of custody and visitation is rendered in the
State which can best decide the case in the interest of the
child;
(2) promote and expand the exchange of information and other
forms of mutual assistance between States which are concerned
with the same child;
(6) deter interstate abductions and other unilateral removals
of children undertaken to obtain custody and visitation
awards."
\[P.L. 96-611, Ã 8(c),94 Stat. 3571
\]"in futherance of the purposes of section 1738A of title 28,
United States Code, as added by subsection (a) of this
section [this section], State courts are encouraged to-
(1) afford priority to proceedings for custody
determinations; and
(2) award to the person entitled to custody or visitation
pursuant to a custody determination which is consistent with
the provisions of such section 1738A [this section],
necessary travel expenses, attorneys' fees, costs of private
investigations, witness fees or expenses, and other expenses
incurred in connection with such custody determination in any
case in which-
(A) a contestant has, without the consent of the person
entitled to custody or visitation pursuant to custody
determination which is consistent with the provisions of such
section 1738A [this section],(i) wrongfully removed the child
from the physical custody of such person, or (ii) wrongfully
retained the child after a visit or other temporary relinquishment
of physical custody; or
(B) the court determines it is appropriate.
Civ R 3
appendix.txt NEXT PAGE PLEASE IF APPLICABLE PAGE NO.ad.
A Peoples' Counsel presents: The "real" world of Law, Justice, and government
A Peoples' Counsel Website Effort to inform the People
link to http://peoplescounsel.orgfree.com/ <A layman's guide to the "real world" of Law, justice, and government.>