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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.
