Justis v. Justis

[This opinion has been published in Ohio Official Reports at 

81 Ohio St.3d 312

.]




                 JUSTIS, APPELLANT, v. JUSTIS ET AL., APPELLEES.
                      [Cite as Justis v. Justis, 

1998-Ohio-626

.]
Custody—Interstate child custody dispute—Uniform Child Custody Jurisdiction
        Act, R.C. 3109.21 et seq., and the Parental Kidnapping Prevention Act,
        Section 1738A, Title 28, U.S. Code, construed.
Under the Uniform Child Custody Jurisdiction Act, R.C. 3109.21 et seq., and the
        Parental Kidnapping Prevention Act, Section 1738A, Title 28, U.S.Code, a
        state court that has rendered an initial custody decree has exclusive
        jurisdiction over the ongoing custody dispute if that state has continuing
        jurisdiction. Where that state complies with the jurisdictional requirements
        under state law and under the Parental Kidnapping Prevention Act, its
        orders are entitled to full faith and credit enforcement by any other state.
        (R.C. 3109.21 et seq. and Section 1738A, Title 28, U.S.Code, construed.)
        (No. 97-17—Submitted January 21, 1998—Decided April 1, 1998.)
        APPEAL from the Court of Appeals for Meigs County, No. 96CA11.
                                  __________________
        {¶ 1} Rhonda Kaye Justis, plaintiff-appellant, and Charles Rex Justis,
defendant-appellee, were married on April 17, 1987, and divorced on July 5, 1990.
At the time of the divorce, the parties had one daughter and were expecting their
second daughter. The court awarded custody of the children to appellant and
granted appellee reasonable visitation rights.           Appellee Darlene Newell, the
paternal grandmother, sought visitation rights. Newell was subsequently added as
a third-party defendant and was awarded visitation rights.
        {¶ 2} Appellant moved to terminate her ex-husband’s visitation rights,
claiming that he was sexually abusing the older child. The court initially believed
her claims and terminated Mr. Justis’s visitation rights in August 1992. Soon after,
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the court curtailed the visitation rights of appellee Newell and prohibited her from
allowing appellee Justis to have any contact with the children. However, after the
parties submitted to polygraph tests, the court became concerned that appellant had
fabricated the claims and had even sexually abused the child herself, just to make
it appear that the child’s father had committed the abuse. The court ordered that
Mr. Justis be permitted supervised visitation. The court also ordered the parties and
the children to continue counseling, which they had been receiving per court order.
Throughout this period, appellant repeatedly interfered with the visitation rights of
both Newell and Mr. Justis.
       {¶ 3} On April 5, 1994, appellant filed a motion seeking court permission
to move with the children to North Carolina, to pursue a job opportunity. The court
held a hearing on April 19, 1994 and granted appellant’s motion. The order was
journalized on May 17, 1994. Appellant moved to North Carolina with the children
on April 20, 1994.
       {¶ 4} In its May 17, 1994 order, the court also modified custody. To ensure
that the children would continue their relationship with their father, the trial court
named appellant residential parent for the school year and appellee Justis residential
parent for the summer months. Mr. Justis was also awarded visitation during the
school year. The court noted that it was in the best interest of the children to
continue visitation with Newell. Because of appellant’s previous attempts to cut
off her ex-husband’s contact with the girls, the court warned appellant that if she
failed to return the children to their father for the summer, she could be charged
with kidnapping.
       {¶ 5} On June 13, 1994, appellant filed a motion for stay of execution and
asked the court to readjust the summer visitation schedule to give her parents, who
reside in Ohio, visitation rights. The court denied these motions on June 14, 1994.
That same day, appellant filed a complaint in Forsyth County, North Carolina,
asking North Carolina to assume jurisdiction for the purpose of modifying the May



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17, 1994 custody decree rendered in Ohio. This time, appellant claimed that both
daughters had been abused and mistreated by their father and that she should be
given exclusive custody of the children.
       {¶ 6} The North Carolina court issued an ex parte protective order,
restraining appellees from removing the children from North Carolina or from
appellant’s custody. Subsequently, while motions were still pending in Ohio, on
October 20, 1994, the North Carolina court determined that it had jurisdiction over
the matter and granted appellant exclusive permanent custody of the children.
Although appellee and Newell were notified of the North Carolina proceedings,
they did not appear in or contest the North Carolina case or appeal the judgment.
       {¶ 7} Meanwhile, in Ohio, the proceedings were ongoing. On September
20, 1994, appellees filed a contempt motion against appellant for her failure to abide
by the terms of the May 17, 1994 order. In response, appellant filed a motion to
dismiss for lack of subject matter jurisdiction. On October 25, 1994, appellant filed
the North Carolina decree with the Ohio trial court. Following a hearing on
appellant’s motion to dismiss, the court found that it had jurisdiction over the
pending dispute, and that Ohio, not North Carolina, was the proper forum to resolve
issues relating to the custody of the children. The trial court subsequently held
appellant in contempt for her failure to abide by the terms of the May 17, 1994
custody order.
       {¶ 8} On appeal, appellant challenged the jurisdiction of the Ohio court to
find her in contempt. She also argued that the Ohio court should have recognized
the North Carolina decree, which modified the May 17, 1994 custody
determination. The court of appeals affirmed. It found that the Ohio court had
jurisdiction over the contempt motion, that the North Carolina court lacked
jurisdiction to modify the Ohio custody decree, and that Ohio was not required to
accord the North Carolina order full faith and credit.




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       {¶ 9} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                               __________________
       Eslocker, Hodson & Oremus Co., L.P.A., and T. E. Eslocker, for appellant.
                               __________________
       FRANCIS E. SWEENEY, SR., J.
       {¶ 10} In this case, we must decide which state court, Ohio or North
Carolina, had jurisdiction to rule on the custody dispute between the parties.
       {¶ 11} Generally, “[t]he court in which a decree of divorce is originally
rendered retains continuing jurisdiction over matters relating to the custody, care,
and support of the minor children of the parties.” Loetz v. Loetz (1980), 

63 Ohio St.2d 1, 2

, 

17 O.O.3d 1

, 

406 N.E.2d 1094

. However, a jurisdictional dispute may
arise when one parent moves out of state with the children. The question then
becomes which state has the authority to exercise jurisdiction over the matter.
       {¶ 12} To help resolve interstate custody disputes, the Uniform Child
Custody Jurisdiction Act (“UCCJA”) was drafted in 1968 and adopted by Ohio in
1977. See R.C. 3109.21 to 3109.37, 137 Ohio Laws, Part I, 359. North Carolina
also adopted the UCCJA. See N.C.Gen.Stat. 50A-1 et seq. The Act was intended
to “avoid jurisdictional conflict and to promote cooperation between state courts in
custody matters so that a decree is rendered in the state that can best decide the best
interest of the child.” State ex rel. Aycock v. Mowrey (1989), 

45 Ohio St.3d 347, 349

, 

544 N.E.2d 657, 660

. By promulgating uniform rules regarding jurisdiction
over such matters, the Act sought to decrease the epidemic of parental kidnapping
and to “prevent the desperate shifting from state to state thousands of innocent
children” caught amidst interstate custody battles. Fry v. Ball (1975), 

190 Colo. 128, 131

, 

544 P.2d 402, 405

. To bolster the effectiveness of the UCCJA, Congress
passed the Parental Kidnapping Prevention Act (“PKPA”), Section 1738A, Title
28, U.S.Code, in 1980, mandating that states afford full faith and credit to valid



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                                        January Term, 1998




child custody orders of another state court. Thompson v. Thompson (1988), 

484 U.S. 174

, 

108 S.Ct. 513

, 

98 L.Ed.2d 512

; Demelis, Interstate Child Custody and
the Parental Kidnapping Prevention Act: The Continuing Search for a National
Standard (1994), 

45 Hastings L.J. 1329

, 1329-1330.
         {¶ 13} In deciding the question of which state court should exercise
jurisdiction in this interstate custody dispute, it is necessary to review the pertinent
sections of R.C. 3109.21 et seq. and of the PKPA, Section 1738A, Title 28,
U.S.Code. Under R.C. 3109.22(A), a trial court in Ohio that has jurisdiction to
make a parenting determination1 shall exercise that jurisdiction only if one of the
conditions specified in subsections (1) through (4) is met. In this case, subsections
(A)(1) and (2) are applicable.2 R.C. 3109.22 (A)(1) and (2) provide:
         “(A) No court of this state that has jurisdiction to make a parenting
determination relative to a child shall exercise that jurisdiction unless one of the
following applies:
         “(1) This state is the home state of the child at the time of commencement
of the proceeding, or this state had been the child’s home state within six months
before commencement of the proceeding and the child is absent from this state


1. R.C. 3109.21(B) defines “parenting determination” as “a court decision and court orders and
instructions that, in relation to the parents of a child, allocates parental rights and responsibilities for
the care of the child, including any designation of visitation rights, and designates a residential parent
and legal custodian of the child or that, in relation to any other person, provides for the custody of
a child, including visitation rights. It does not include a decision relating to child support or any
other monetary obligation of any person.”

2. R.C. 3109.22(A)(3) and(4) also provide that no court of this state shall exercise jurisdiction
unless:
         “(3) The child is physically present in this state and either has been abandoned or it is
necessary in an emergency to protect the child because he has been subjected to or threatened with
mistreatment or abuse or is otherwise neglected or dependent;
         “(4) It appears that no other state would have jurisdiction under prerequisites substantially
in accordance with division (A)(1), (2), or (3) of this section, or a court in another state has declined
to exercise jurisdiction on the ground that this state is the more appropriate forum to make a
parenting determination relative to the child, and it is in the best interest of the child that this court
assume jurisdiction.”
         These subsections are inapplicable to this case.




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because of his removal or retention by a parent who claims a right to be the
residential parent and legal custodian of a child or by any other person claiming his
custody or is absent from this state for other reasons, and a parent or person acting
as parent continues to live in this state;
        “(2) It is in the best interest of the child that a court of this state assumes
jurisdiction because the child and his parents, or the child and at least one
contestant, have a significant connection with this state, and there is available in
this state substantial evidence concerning the child’s present or future care,
protection, training, and personal relationships[.]”
        {¶ 14} Similar language is found in the PKPA.                     See Sections
1738A(c)(2)(A) and (B), Title 28, U.S.Code.
        {¶ 15} In this case, Ohio was the home state of the two children when the
custody proceeding was commenced in 1990. Thus, under subsection (A)(1), Ohio
is the “home state.” Therefore, the trial court satisfied the jurisdictional conditions
set forth in R.C. 3109.22(A)(1).
        {¶ 16} Additionally, the Ohio court could exercise jurisdiction under R.C.
3109.22(A)(2). This section confers the authority to exercise jurisdiction on an
Ohio court if it is in the best interest of the children, if the children and at least one
contestant have a significant connection with this state, and if there is substantial
evidence available in Ohio concerning the children’s present or future care,
protection, training, and personal relationships.
        {¶ 17} Again, these requirements have been met. The children have a
significant connection to Ohio since several relatives, including their father and
their maternal and paternal grandparents, continue to reside here. There is also
substantial evidence in Ohio concerning their present and future care, protection,
and personal relationships. This evidence includes psychological and counseling
reports. The counselors in the relevant Ohio agencies have had a long-standing
relationship with the girls and are familiar with their complicated family histories.



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                                January Term, 1998




Furthermore, under R.C. 3109.22(A)(2), two contestants (appellees) have a
significant connection with this state because they reside here. R.C. 3109.21(A)
defines “contestant” as “a parent of a child who claims a right to be the residential
parent and legal custodian of the child or claims visitation rights with respect to the
child, or a person, other than a parent of a child, who claims a right to custody or
visitation rights with respect to the child.” Both appellees fall within the statutory
definition of “contestant.”     Thus, Ohio can assert jurisdiction under R.C.
3109.22(A)(2).
       {¶ 18} The North Carolina court asserted jurisdiction under similar sections
of its own version of the UCCJA, specifically, N.C.Gen.Stat. 50A-3. The court
found that North Carolina was the “home state” of the minor children (since the
children and their mother reside there), that the children have a “significant
connection” to North Carolina, and that there was “substantial evidence” there
relating to the children’s present and future care, protection, training, and personal
relationships. The North Carolina court further found that no other state, including
Ohio, had jurisdiction over this matter.
       {¶ 19} One of the problems inherent in the UCCJA is that some of its
provisions, such as the “substantial evidence” and “significant connection” factors
cited above (and found in R.C. 3109.22[A][2]), can be interpreted to allow two
states to exercise concurrent jurisdiction. See Atkins v. Atkins (1992), 

308 Ark. 1, 6

, 

823 S.W.2d 816, 819

. This is evident in this case where both Ohio and North
Carolina claim jurisdiction under their own versions of the UCCJA. The PKPA,
however, provides for exclusive jurisdiction, and eliminates the possibility of
concurrent jurisdiction by preventing a second state from modifying a custody
decree where the original home state has continuing jurisdiction. Crump v. Crump
(Utah App.1991), 

821 P.2d 1172, 1174-1175

. The PKPA “ ‘attempts to more
clearly limit the circumstances under which a court may modify the custody decree
of another state.’ ” McDow v. McDow (Alaska 1996), 

908 P.2d 1049, 1053

, quoting




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Greenlaw v. Smith (1994), 

123 Wash.2d 593, 603

, 

869 P.2d 1024, 1031

. Therefore,
the terms of the PKPA prevail over the UCCJA. 

Atkins, supra, at 6

, 

823 S.W.2d at 819

.
         {¶ 20} In accordance with these principles, we find that the North Carolina
court erred in asserting jurisdiction in this case and in failing to recognize that,
pursuant to the PKPA, Ohio had continuing jurisdiction. Section 1738A(f), Title
28, U.S.Code narrowly defines when a state court can modify a decree issued by
the original state court. In order for one state to modify an existing parenting
decree, or child custody decree (as it is referred to in the PKPA), from another state,
(1) the state seeking to modify the decree must have jurisdiction to make a child
custody determination, and (2) the original state must no longer have jurisdiction,
or must have declined to exercise such jurisdiction. Both prongs of this test must
exist.
         {¶ 21} North Carolina can satisfy the first prong of the test by asserting that
it is the home state of the children, since they resided in North Carolina at the time
the court modified the Ohio decree.3 Section 1738A(c)(2)(A), Title 28, U.S.Code.
However, North Carolina cannot satisfy the second prong of the test because Ohio
had continuing jurisdiction. Section 1738A(d), Title 28, U.S.Code provides that
the jurisdiction of a state continues as long as the state meets the jurisdictional
requirements under its own laws (here, R.C. 3109.21 et seq.) and the state remains
the residence of the children or at least one contestant. In this case, the trial court
had jurisdiction under Ohio laws (R.C. 3109.22[A][1] and [A][2]), and Ohio
remains the residence of two contestants.              Therefore, Ohio had continuing
jurisdiction in this case. Under these circumstances, North Carolina should not




3. Ohio can also be considered the “home state” under R.C. 3109.22(A)(2). This illustrates that
under the UCCJA, the two courts may have had concurrent jurisdiction.




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                                  January Term, 1998




have asserted jurisdiction in this case, and it acted improperly in modifying the
parenting determination made by the Ohio court.
        {¶ 22} In sum, we hold as follows: Under the UCCJA, R.C. 3109.21 et seq.,
and PKPA, Section 1738A, Title 28, U.S.Code, a state court that has rendered an
initial custody decree has exclusive jurisdiction over the ongoing custody dispute
if that state has continuing jurisdiction. Where that state complies with the
jurisdictional requirements under state law and under the PKPA, its orders are
entitled to full faith and credit by any other state.
        {¶ 23} We recognize that appellant failed to advise the North Carolina court
that a proceeding was pending in Ohio. Nevertheless, as the court of appeals stated,
we will not reward appellant for her deception by deferring to the jurisdiction of
the North Carolina court where it is clearly inappropriate to do so.
        {¶ 24} The evidence in this case demonstrates that appellant was willing to
go to any length to deprive appellees of contact with the two children. Not only
was there evidence that she fabricated claims of sexual abuse, but the trial court
found that she actually abused the children herself in order to cast suspicion on
appellees and to cut off their rights to visitation. Just as the trial court began to sort
things out and the girls were able to reestablish a loving relationship with their
father and paternal grandmother, appellant asked the court for permission to move
to North Carolina. We wonder whether the true motive for her relocation was not
a job opportunity but the chance to put distance between the girls and their father
and to end his parental rights by relitigating issues that the Ohio court had already
decided. One of the main goals of the PKPA was to deter parents from crossing
state lines to “forum shop” in order to relitigate custody disputes to reach more
favorable results. Tufares v. Wright (1982), 

98 N.M. 8, 11

, 

644 P.2d 522, 525

. This
is precisely what appellant has attempted to do here. We are unwilling to condone
such behavior.




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       {¶ 25} When Ohio adopted the UCCJA, it did so for the express purpose of
avoiding “jurisdictional competition and conflict with the courts of other states and
assur[ing] that the state with the optimum access to the relevant facts makes the
custody determination, thus protecting the best interests of the child.” In re
Guardianship of Wonderly (1981), 

67 Ohio St.2d 178, 180

, 

21 O.O.3d 111, 113

,

423 N.E.2d 420, 422

. Our holding today comports with that purpose. Since the
Ohio court had continuing jurisdiction over the custody dispute, it had the authority
to issue a contempt order against appellant for her failure to abide by the terms of
its prior parenting determination, which modified custody. Furthermore, the Ohio
court properly refused to afford full faith and credit to the decree of the North
Carolina court, since North Carolina lacked jurisdiction to modify the May 17, 1994
parenting determination. Instead, the parenting determinations made by the trial
court were entitled to full faith and credit recognition by the North Carolina court.
       {¶ 26} Accordingly, we affirm the judgment of the court of appeals.
                                                                 Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
                               __________________




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