Which State for Custody? (Uniform Child Custody Jurisdiction Act: UCCJA in Oregon) - Arnold Law in Eugene, Oregon – Powerful Advocacy. Proven Results.

Which State for Custody? (Uniform Child Custody Jurisdiction Act: UCCJA in Oregon)

08.27.2011 – by Emilia Gardner

The UCCJEA provides for jurisdiction to make an initial determination of child custody pursuant to ORS 109.741 as follows:

(1) Except as otherwise provided in ORS 109.751, a court of this state has jurisdiction to make an initial child custody determination only if:

(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

oregon-uccjea-jurisdiction

(b) A court of another state does not have jurisdiction under subsection (1)(a) of this section, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under ORS 109.761 or 109.764, and:

(A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

(B) Substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships;

(c) All courts having jurisdiction under subsection (1)(a) or (b) of this section have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under ORS 109.761 or 109.764; or

(d) No court of any other state would have jurisdiction under the criteria specified in subsection (1)(a), (b) or (c) of this section.

(2) Subsection (1) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

(3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

In Chester and Chester, 172 Or App 462, 467, 19 P3d 111 (2001), the court recognized that under the UCCJA, supplanted by the UCCJEA in 1999: “[A] trial court must engage in a multi-step analysis to resolve child custody disputes. The initial step is for the court to determine whether it has UCCJA jurisdiction under [ORS 109.741 and 109.747]. Id. If it has jurisdiction, the trial court must then determine whether it will exercise jurisdiction by considering the factors enumerated under [ORS 109.761]***.” Id. ORS 109.761 states:

(1) A court of this state that has jurisdiction under ORS 109.701 to 109.834 to make a child custody determination may decline to exercise its jurisdiction at any time if the court determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the motion of a party, the court’s own motion or the request of another court.

(2) Before determining whether a court of this state is an inconvenient forum, the court shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(b) The length of time the child has resided outside this state;

(c) The distance between the court in this state and the court in the state that would assume jurisdiction;

(d) The relative financial circumstances of the parties;

(e) Any agreement of the parties as to which state should assume jurisdiction;

(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(h) The familiarity of the court of each state with the facts and issues in the pending litigation.

(3) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.

(4) A court of this state may decline to exercise its jurisdiction under ORS 109.701 to 109.834 if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

             ORS 109.744(1)(a) makes clear that an Oregon court does not have exclusive jurisdiction over a custody determination where the child lacks a significant connection with this state and substantial evidence concerning the child’s care, protection, training, and personal relationships is no longer available in this state. Medill and Medill, 179 Or App 630, 639, 40 P3d 1087 (2002). “[T]he requirement of the availability of `substantial evidence’ should be understood to require optimum access to relevant evidence.” Id. at 642; Settle and Settle, 276 Or 759, 767, 556 P2d 962 (1976).

Typically divorce proceedings can be stayed until this Court determines whether Oregon is an inconvenient forum and whether the other state is the appropriate forum pursuant to ORS 109.761(1) for the initial custody determination.

ORS 109.761 sets forth the procedure for the issue of the inconvenient and appropriate forum; a party can raise the issue by motion. Once a party makes the motion the Court should perform an investigation pursuant to ORS 109.737(2) as to the evidentiary basis for the inconvenient and/or appropriate forum, and also request that the other court assist to the extent it is necessary.

Oregon can decline to exercise jurisdiction because Oregon is an inconvenient forum and the other state is the more appropriate forum under the factors set forth by ORS 109.761. 

Even if a has not resided in the other state for the requisite six months for home state jurisdiction, often the other state is a more appropriate forum if there is substantial evidence concerning the child’s care, protection and personal relationships.  First, you look to see if the other state is better able to protect the parties and the child from further abuse by a party. While both Oregon and the other state are often able and equipped to protect the parties and the child, if a party has already initiated the process in the other state to protect himself from further physical abuse from the other party, it may be a more convenient forum.

Difficult choice

In addition to requesting that Oregon decline jurisdiction, a party may request that the court either sever the child custody determination from the dissolution proceeding pursuant to ORS 109.761(4), or dismiss the dissolution proceeding and order that a similar proceeding be filed in the other state pursuant to ORS 109.761(3).

The parties should be allowed to present facts and legal arguments in relation to a party’s request for a UCCJEA determination prior to ruling on the motion.  

These Oregon custody motions are often very fact specific. In re R. E. G, 234 Or App 652 (2010), is a recent Oregon Court of Appeals case on this very issue. In In re R.E.G., father filed a motion to transfer jurisdiction over a juvenile case to Montana. Id. at 654.  Without giving father an opportunity to present evidence, the Oregon court conference with the Montana court and the decision was made, denying father’s motion. Id. at 654-655. The father also requested that the court disclose the record of the communications between the courts; this motion was also denied. Id. The Court of Appeals held that the Oregon court was wrong to prevent father from accessing the communications between the courts and remanded the case to the juvenile court to allow the parties to present evidence and legal argument before making a decision on the father’s motion. Id. at 658.

A parent should be given an opportunity to make a factual record and legal arguments before an Oregon divorce or custody court rules upon a UCCJEA motion. The keys to the resolution of whether or not Oregon or the other state is the appropriate forum are the issues of fact and law.

Oregon can stay the Oregon proceeding because of a simultaneous proceeding as contemplated by ORS 109.757.

             Pursuant to ORS 109.757:

…a court of this state may not exercise its jurisdiction under ORS 109.741 to 109.771 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with ORS 109.701 to 109.834…

A custody proceeding in another state that is active or currently on appeal in the appellate courts can make a stay appropriate.

Contact an Oregon Custody Attorney Regarding Jurisdiction

The attorneys of Arnold Law have gone through the Oregon family court jurisdictional process regarding conflicting multi-state cases. For more information call 541-338-9111.

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