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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Atkins v. Vigil (11/22/2002) sp-5645

Atkins v. Vigil (11/22/2002) sp-5645

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


TRACY O. ATKINS,              )
                              )    Supreme Court No. S-10621
             Appellant,            )
                              )    Superior Court No.
     v.                       )    3AN-02-3822 CI
                              )
VERONICA L. VIGIL,            )    O P I N I O N
                              )
              Appellee.             )    [No. 5645 - November 22,
2002]
________________________________)



          Appeal  from the Superior Court of the  State
          of    Alaska,    Third   Judicial   District,
          Anchorage, William F. Morse, Judge.

          Appearances:    Tracy   Atkins,    pro    se,
          Anchorage, Appellant.  Maryann E. Foley,  Law
          Office  of  Maryann E. Foley, Anchorage,  for
          Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          PER CURIAM.


          1.    Appellant  Tracy Atkins challenges  the  superior

courts  determination that the Uniform Child Custody Jurisdiction

and  Enforcement  Act  (UCCJEA) prevents Alaska  from  exercising

jurisdiction  over a custody dispute between Atkins and  appellee

Veronica  Vigil over their son Julian.  The superior court  ruled

that California is Julians home state and that even if Alaska has

home  state jurisdiction, Californias proceeding preempts Alaskas

jurisdiction.  We reverse the ruling of the superior court.

          2.   Julian Atkins was born to Veronica Vigil and Tracy

Atkins  on  April 2, 1996.  Julians parents were  never  married.

Vigil  and  her family have taken care of Julian ever  since  his

birth.

          3.   On July 4 or 5, 2001, Julian went to California to

visit Vigils mother, Julie Roby.  While Julian was in California,

Vigil  decided  that Julian should permanently  stay  with  Roby.

Since Vigil initially only intended to send Julian for a visit to

California,  Julians initial absence from Alaska was a  temporary

absence and not intended to be permanent.

          4.    Less  than  six  months  after  Julian  moved  to

California,  Roby petitioned the Superior Court of California  in

Marin  County  to name Roby guardian of Julian.   The  California

court  ordered  a child custody investigation.  On  November  28,

2001, a California investigator spoke to Atkins on the phone  and

informed   Atkins  of  the  California  guardianship  proceeding.

Atkins objected to Robys petition for guardianship.

          5.    On  January 11, 2002, six months and six or seven

days  after  Julian went to California, Atkins  filed  a  custody

petition  in  Alaska.   Vigil filed a motion  asking  the  Alaska

superior  court  to decline custody jurisdiction.   The  superior

court  granted Vigils motion, ruling that it could  not  exercise

jurisdiction.  Atkins now appeals.

          6.   Whether a lower court can exercise jurisdiction is

a  question of law.1 For questions of law, the standard of review

is  de novo or independent judgment.2  This court adopts the rule

of law that is most persuasive in light of precedent, reason, and

policy.3

          7.     The  Uniform  Child  Custody  Jurisdiction   and

Enforcement Act4 (UCCJEA) and the Parental Kidnapping  Prevention

Act5  (PKPA) govern jurisdictional issues regarding child custody

cases  in Alaska.6  These statutes were promulgated in an  effort

to   encourage  courts  considering  child  custody  matters   to

cooperate  in  order  to  arrive at  a  fully  informed  judgment

transcending state lines and considering all claimants, residents

          and nonresidents, on an equal basis and from the standpoint of

the welfare of the child.7

          8.    In  order  to advance this uniform  treatment  of

custody  cases, the statutes assign children home  states.8   The

home  state  of  the child determines which court  has  principal

jurisdiction.  A childs home state is the state where  the  child

has  lived with his parent or person acting as a parent  for  six

consecutive  months  immediately before the commencement  of  the

proceeding.9

          9.    The  superior  court  ruled  that  it  could  not

exercise  jurisdiction on two grounds.  First, it  reasoned  that

California  was Julians home state.  Alternatively, it  concluded

that  even  if  Alaska  had jurisdiction, Californias  proceeding

still preempted the trial courts jurisdiction.

          10.   A childs home state is determined at the time  an

action   commences.10   Because  Roby  commenced  the  California

proceeding   less  than  six  months  after  Julian  arrived   in

California, California was not Julians home state when Roby filed

the  California  guardian petition.  Moreover, Julians  continued

residence  in  California after Roby filed her  petition  is  not

relevant  in determining Julians home state; a child  and  parent

cannot  fulfill  the  six-month home state period  through  their

continued  residence in a state after a custody action  has  been

filed.11  Therefore, California is not Julians home state.

          11.   Alaska has jurisdiction under AS 25.30.300(a)(2),

which  provides  that a court of this state has  jurisdiction  to

make  an initial child custody determination only if . .  .  this

state  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  .  .  . .  In this  opinion  we  refer  to

jurisdiction   under   this  section   as   recent   home   state

jurisdiction.   Alaska  had been Julians home  state  within  six

months  of  Atkinss  filing  of  his  child  custody  action  and

          therefore Alaska had recent home state jurisdiction.  In

calculating  whether  Alaska is a childs home  state  within  six

months  of  a  proceedings commencement, a court  should  include

temporary  absences from the state.12  Therefore, in  this  case,

the  superior  court should have included any  temporary  absence

from  Alaska  in assessing whether Julian lived in Alaska  within

six months of the commencement of the Alaska proceeding.  Julians

initial departure from Alaska was temporary.  According to  Roby,

Vigil  agreed to make Julians absence from Alaska permanent  only

after  Julian was in California for a significant period of time.

In  a pleading filed in the California action, Roby describes the

evolving nature of Vigils decision to leave Julian with Roby on a

permanent basis:  Julian stayed in California with me longer  and

longer  because  my daughter Veronicas life was  unstable  and  I

offered  to  keep him.  She agreed, first it was for a  few  more

weeks, then through summer camp, then to start kindergarten, then

to stay for the entire kindergarten year.13  Because Atkins filed

the Alaska petition six months and six or seven days after Julian

left  Alaska  for  California, and because it is undisputed  that

Julians  absence from Alaska did not become permanent until  more

than  seven days after his initial departure from Alaska,  Alaska

was  Julians home state within six months of the commencement  of

the  proceeding.   Accordingly,  Alaska  had  recent  home  state

jurisdiction.

          12.    Contrary   to   the  superior  courts   holding,

Californias  pre-existing  child  custody  proceeding  does   not

preempt  the  Alaska superior courts jurisdiction.   The  Uniform

Child  Custody Jurisdiction Act (UCCJA), which Alaska  has  since

replaced  with the UCCJEA, created the possibility of  concurrent

jurisdiction  and  resolved  the  potential  conflict  by  giving

preference  to  the first jurisdiction to hear the custody  case.

However,  the  PKPA  eliminated  the  possibility  of  concurrent

jurisdiction and the first in time rule:

          As   to  initial  jurisdiction,  the  federal

          standards  implement some of the same  policy

          judgments underlying the UCCJA, but there are

          also significant differences because the PKPA

          was  drafted, in part, to fill the gaps which

          existed under the UCCJA.  The key distinction

          is  that the UCCJA could result in concurrent

          jurisdiction if more than one state meets one

          of the conditions set forth in  3(a) thereof,

          while 28 USCS  1738A(c)(2)(B)(i) and  28 USCS

          1738A(d)     effectively    eliminate     the

          possibility of concurrent jurisdiction.[14]

          13.   This  court has held that the PKPA  preempts  the

UCCJA;  therefore,  under Alaska law, a  childs  home  state  has

exclusive jurisdiction in child custody cases: 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.  The PKPA, however,  preempts  this

first in time provision, and grants exclusive jurisdiction to the

childs home state.15

          14.  Moreover, the UCCJEA, which replaced the UCCJA, is

consistent with the PKPA and grants exclusive jurisdiction to the

home state or recent home state.16

          15.  Turner v. Pannick17 sets out the relevant standard

that  the  superior  court should apply  in  determining  custody

between  a  biological parent and a third party.  In  Turner,  we

concluded  that a biological parent should ordinarily be  awarded

custody over a third party unless it clearly would be detrimental

to  the child.18  This clear detriment standard may also bear  on

the  question  of whether the child should remain  with  Roby  in

California during the pendency of this litigation.

          16.   We REVERSE the superior courts decision declining

jurisdiction  in this case and REMAND for proceedings  consistent

with this order.

_______________________________
     1     Kopanuk  v. AVCP Regl Hous. Auth., 902 P.2d  813,  816
(Alaska 1995).

     2    Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).

     3    Id.

     4    AS 25.30.300-25.35.390.

     5    28 U.S.C.  1738A.

     6    Rogers v. Rogers, 907 P.2d 469, 471 (1995).

7       David    Carl    Minneman,   Annotation,    Home    State
Jurisdiction of Court Under  3(a)(1) of the Uniform Child Custody
Jurisdiction  Act  (UCCJA) or the Parental Kidnapping  Prevention
Act  (PKPA),  28  U.S.C.S.  1738A(c)(2)(A),  6  A.L.R.5th  1,  16
(1992).

     8    AS 25.30.300; 28 U.S.C.  1738A(b)(4).

     9    28 U.S.C.  1738A(b)(4).

     10   Bock v. Bock, 824 P.2d 723, 724 n.4 (Alaska 1992).

     11     David   Carl   Minneman,   Annotation,   Home   State
Jurisdiction of Court Under  3(a)(1) of the Uniform Child Custody
Jurisdiction  Act  (UCCJA) or the Parental Kidnapping  Prevention
Act  (PKPA),  28 U.S.C.S.  1738A(c)(2)(A), 6 A.L.R.5th  1,  48-50
(1992);  Irving v. Irving, 682 S.W.2d 718, 721 (Tex.  App.  1985)
([W]e cannot allow the appellee to bootstrap his way into a Texas
court   based   on   relationships  developed  after   suit   was
commenced.).

12    AS  25.30.909(7) ( home state means the state  in  which  a
child  lived with a parent or a person acting as a parent for  at
least six consecutive months, including any temporary absences of
the  child  or parent or person acting as a parent);   28  U.S.C.
1738A(b)(4) (Periods of temporary absence of [child,  parent,  or
person acting as parent] are counted as part of the six-month . .
. period.).

     13    Declaration of Julie Roby in Opposition to  Motion  to
Quash Guardianship Proceedings, executed on February 19, 2002, at
Novato, California.

     14    David Carl Minneman, Annotation, Pending Proceeding in
Another State as Ground for Declining Jurisdiction Under  6(a) of
the  Uniform  Child  Custody  Jurisdiction  Act  (UCCJA)  or  the
Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.S.  1738A(g),
20 A.L.R.5th 700, 731 (1994).

     15   Rogers v. Rogers, 907 P.2d 469, 471 (1995).

     16    AS 25.30.300.  AS 25.30.300(3) only gives jurisdiction
to  a  non-home state when there is no home state or recent  home
state  jurisdiction,  thereby  eliminating  the  possibility   of
concurrent jurisdiction.

     17   540 P.2d 1051 (Alaska 1975).
          
     18   Id. at 1054.