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Rogers v. Rogers (12/8/95), 907 P 2d 469
Notice: This opinion is subject to formal correction
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THE SUPREME COURT OF THE STATE OF ALASKA
LORETTA ROGERS, )
) Supreme Court File No. S-6740
) Superior Court No.
v. ) 3AN-94-2175 Civil
CHARLES ROGERS, ) O P I N I O N
Appellee. ) [No. 4293 - December 8, 1995]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Larry D. Card, Judge.
Appearances: Michael Gershel, Carol H.
Daniel, Alaska Legal Services Corporation,
Anchorage, for Appellant. Charles D. Rogers,
pro se, Gepp, Arkansas.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
Loretta Rogers appeals the superior court's decision to
decline exercising jurisdiction over this child custody
proceeding. We reverse.
I. FACTS AND PROCEEDINGS
Loretta Rogers and Charles Rogers were married in
January 1990. They have one child, Joshua, born in Arkansas in
December 1989. Loretta has an older daughter, Amanda, from a
prior marriage. In July 1990, when Joshua was seven months old,
the family moved to Louisiana. In November 1991 they moved to
Loretta and Charles separated in the fall of 1993. On
November 7, 1993, Loretta took Joshua and Amanda to Arkansas to
stay with Loretta's parents, and then returned to Alaska.
Loretta planned for the children to return to Alaska shortly
before Christmas, and provided her parents with return tickets
for both children. Loretta's parents, however, refused to return
On February 22, 1994, while still living in Alaska,
Charles filed a divorce and custody complaint in Arkansas. He
moved to Arkansas sometime after this.
On March 15, 1994, Loretta filed a complaint in
superior court in Anchorage, seeking a divorce and custody of
Joshua. The superior court concluded, after speaking with the
judge presiding over the Arkansas proceeding, that Arkansas was a
more convenient forum for the child custody proceeding.1 It
declined to exercise jurisdiction over the custody issue.
A.The Superior Court Has Jurisdiction to Make a Child
Jurisdiction over child custody proceedings is governed
by the federal Parental Kidnapping Prevention Act (PKPA), 28
U.S.C. ' 1738A,2 and the Uniform Child Custody Jurisdiction Act
(UCCJA), codified in Alaska at AS 25.30.010-.900. If the two
statutes conflict, the PKPA pre-empts the UCCJA. Murphy v.
Woerner, 748 P.2d 749, 750 (Alaska 1988); Atkins v. Atkins, 823
S.W.2d 816, 819 (Ark. 1992).
Under the UCCJA, a court has jurisdiction to make a
child custody determination if, inter alia, the state in which
the court sits is the child's home state, or had been the child's
home state "within six months before commencement of the
proceeding . . . and a parent . . . continues to live in [the]
state." AS 25.30.020(a)(1)(B); accord Ark. Code Ann. ' 9-13-
203(a)(1). "Home state" is defined in part as "the state in
which the child, immediately preceding the time involved, lived
with the child's parents, a parent or a person acting as parent,
for at least six consecutive months." AS 25.30.900(5); accord
Ark. Code Ann. ' 9-13-202(5). Jurisdiction under the UCCJA is
determined as of the date the custody proceeding is commenced.
Wanamaker v. Scott, 788 P.2d 712, 714 n.3 (Alaska 1990); accord
Rodriguez v. Saucedo, 621 S.W.2d 874, 877 (Ark. App. 1981).
Joshua lived in Alaska with his family for twenty-four
consecutive months, from November 1991 to November 1993. Loretta
sent Joshua and Amanda to Arkansas on November 7, 1993 and filed
her complaint on March 15, 1994. Loretta still lives in Alaska.
Thus the superior court has jurisdiction to make a child custody
determination, because Alaska was Joshua's home state within six
months of the commencement of the proceeding. See AS
Furthermore, the superior court could exercise this
jurisdiction even though Charles filed his complaint in Arkansas
before Loretta filed hers in Alaska. Under the UCCJA, a court
may not exercise jurisdiction if a custody proceeding is already
pending in another state, assuming that state has jurisdiction
over the case. See AS 25.30.050(a). The PKPA, however, pre-
empts this "first in time" provision, and grants exclusive
jurisdiction to the child's home state.3 28 U.S.C. '
1738A(a)(c)(2)(A) and (B)(i); see Atkins, 823 S.W.2d at 819
("[T]he principal distinction between the UCCJA and the PKPA is
that the PKPA gives exclusive jurisdiction to the child's home
state. . . . When the UCCJA and PKPA conflict, the pre-emptive
federal PKPA controls.") (emphasis in original). Thus, we need
not resolve the factual question of whether Arkansas could
exercise jurisdiction under its UCCJA.4 Because Alaska was
Joshua's home state at all relevant times,5 Alaska's jurisdiction
is exclusive. See Norsworthy v. Norsworthy, 713 S.W.2d 451, 455
(Ark. 1986) ("Under the federal act jurisdiction is given the
home state to the exclusion of other jurisdictional
B.The Superior Court Abused Its Discretion in Declining
to Exercise Jurisdiction
The UCCJA allows a court to decline jurisdiction if it
finds that it is an inconvenient forum and that a court of
another state is a more convenient forum.6 AS 25.30.060(a). In
determining whether it is an inconvenient forum, the court must
"consider if it is in the interest of the child that another
state assume jurisdiction." Id. at .060(c). To this end, the
court may take into account the following factors:
(1) if another state is or recently was the
child's home state;
(2) if another state has a closer connection
with the child and the child's family or with
the child and one or more of the contestants;
(3) if better evidence concerning the
child's present or future care, protection,
training, and personal relationships is
available in another state, or if equally
substantial evidence is more readily
available in another state;
(4) if the parties have agreed on another
forum which is no less appropriate; and
(5) if the exercise of jurisdiction by a
court of this state would contravene any of
the [UCCJA's stated purposes].
Id. at .060(c)(1)-(5). We review forum non conveniens decisions
for abuse of discretion. Pinneo v. Pinneo, 835 P.2d 1233, 1235
The superior court concluded it would be "much less
inconvenient" for Loretta to travel to Arkansas than for Charles
and the children to travel to Alaska. The court considered it
significant that Loretta sent the children to Arkansas while she
and Charles "were having severe domestic problems." The court
did not specifically reference any of the statutory factors, nor
did it explain why declining jurisdiction was in Joshua's best
Our review of the record convinces us that the superior
court abused its discretion in declining to exercise
jurisdiction. Every relevant statutory factor points to Alaska
as the most convenient forum for Joshua's custody proceeding.
Alaska was Joshua's home state when the proceeding commenced.
Alaska has the closest connection with Joshua. He and his family
lived here for over two years, or half of Joshua's life, before
Loretta sent Joshua and Amanda to Arkansas, a mere three months
before Charles filed his complaint. Alaska is most likely where
the best evidence concerning Joshua's care, protection, and
personal relationships is available.
The superior court erred in basing its decision
exclusively on which party it felt would be more inconvenienced
by the requisite travel to a non-local forum. While the
"relative hardship in appearing in non-local forums" is a
relevant consideration, Szmyd v. Szmyd, 641 P.2d 14, 19 (Alaska
1982), the central focus of any forum non conveniens inquiry is
"which forum is best in light of the child's best interest." Id.
at 20 (emphasis in original). We conclude that it is in Joshua's
best interests for the custody proceeding to take place in
We REVERSE the superior court's order declining
jurisdiction and REMAND this case for further proceedings.
1 AS 25.30.060(d) provides,
Before determining whether to decline or
retain jurisdiction the court may communicate
with a court of another state and exchange
information pertinent to the assumption of
jurisdiction by either court with a view to
assuring that jurisdiction will be exercised
by the more appropriate court and that a
forum will be available to the parties.
2 Charles argues that the PKPA only applies to cases
involving parental kidnapping. Even a cursory reading of the
statute indicates its reach is much broader. It has often been
applied in situations where parental kidnapping is not an issue,
see, e.g., Wanamaker v. Scott, 788 P.2d 712 (Alaska 1990); Atkins
v. Atkins, 823 S.W.2d 816 (Ark. 1992). Charles cites to no case
limiting the PKPA in the manner he suggests.
3 The PKPA's definition of "home state" is substantively
the same as the definition of "home state" in Alaska's and
Arkansas' UCCJA. Compare 28 ' 1738A(b)(4) with AS 25.30.900(5)
and Ark. Code Ann. ' 9-13-202(5).
4 In addition to home state jurisdiction, Arkansas' UCCJA
provides that a court may make a child custody determination if
[i]t is in the best interest of the child
that a court of this state assume
jurisdiction because (i) the child and his
parents, or the child and at least one (1)
contestant, have a significant connection
with this state and (ii) there is available
in this state substantial evidence concerning
the child's present or future care,
protection, training, and personal
Ark. Stat. Ann. ' 9-13-203(a)(2). Alaska's UCCJA does not
contain this provision.
5 Since Joshua had only been in Arkansas for four months
when Charles filed his complaint, Arkansas did not have home
state jurisdiction. See Ark. Stat. Ann. ' 9-13-202(5) (defining
"home state" to mean at least six consecutive months of
6 The PKPA contains a similar provision. See 28 U.S.C. '
1738A(c)(2)(D). Arkansas could exercise jurisdiction under the
PKPA if Alaska declined to exercise jurisdiction and if Arkansas'
exercise of jurisdiction was in Joshua's best interest. Id.
Thus, the PKPA does not require Alaska to take jurisdiction; but
if Alaska does take jurisdiction, then it takes exclusive
7 Charles argues that a complete forum non conveniens
analysis must include a consideration of what is best for Amanda,
Loretta's child from a previous marriage. While the family's
connections to a forum are a factor to be considered in deciding
which forum is most convenient, AS 25.30.060(c)(2), Charles has
not shown, nor do we see, how Amanda's contacts with Arkansas are
so substantial that the superior court should decline to exercise
jurisdiction over Joshua's custody proceeding. Amanda's custody
is not at issue in the Alaska proceeding.