Opinion
No. FA 04-4001981S
January 10, 2007
Memorandum of Decision on Defendant's Motion to Vacate
The defendant has moved to vacate the court's order awarding temporary custody of the parties' six-year-old child Brittany to the plaintiff under § 46b-115n of the General Statutes, this state's codification of the temporary emergency jurisdiction provision of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). The motion requires the court to determine the appropriate interplay between this state's custody laws, the UCCJEA, and the federal Parental Kidnapping Prevention Act of 1980 (PKPA), 28 U.S.C. 1738A. Last summer the Appellate Court of this state held that Connecticut does not have jurisdiction to enter custody orders regarding this minor child. See Scott v. Somers, 97 Conn.App. 46, 903 A.2d 663 (2006). The court held that the State of Florida is the home state with exclusive jurisdiction under the UCCJEA and PKPA to enter custody orders regarding this child. The plaintiff father then sought an order for temporary emergency jurisdiction under § 46b-115n. Pursuant to affidavits and evidence submitted ex parte, this court found, without prejudice to the mother's right to challenge the legal or factual basis for such an order, that the plaintiff had presented sufficient allegations of imminent emotional harm to the minor child should she be abruptly returned to her mother in compliance with current custodial orders from the State of Florida to warrant the exercise of temporary emergency jurisdiction under § 46b-115n. Later appearing through counsel, the defendant mother then filed the present motion to vacate that order. The gravamen of her argument is that, even if temporary emergency jurisdiction may sometimes be appropriate to protect a child from abuse,
Section 46b-115n provides in pertinent part as follows: "(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and . . . (2) it is necessary in an emergency to protect the child because the child, a sibling or a parent has been, or is under a threat of being, abused or mistreated . . . (c) If there is a previous child custody determination that is enforceable under this chapter or if a child custody proceeding has been commenced in a court of a state having jurisdiction under a provision substantially similar to section 46b-115k, 46b-115l or 46b-115m, the court of this state which issues an order pursuant to this section shall specify that such order is effective for a period of time which the court deems adequate to allow the person seeking an order to obtain such order from the other state which has jurisdiction. Such order shall be effective for that period of time specified in the order or until an order is obtained from the other state whichever occurs first. (d) If the court, in any proceeding commenced pursuant to this section, is informed that a child custody proceeding has been commenced, or that a child custody determination has been made, by a court of another state having jurisdiction pursuant to a provision substantially similar to section 46b-115k, 46b-115l or 46b-115m, such court shall immediately communicate with the court of the other state and take appropriate action, including the making of temporary orders for a specified period of time, to resolve the emergency and to protect the safety of the child and tile parties."
sending the child to Florida in accordance with the Florida court order is not parental abuse . . . If this court were to find that the mere transfer of the child pursuant to the Florida order is abuse, it would render superfluous the entire Federal Act and any of the other rules of the Uniform Act adopted in Connecticut.
(Def.'s Supplementary Memorandum dated November 6, 2006, at 3-4.) For the reasons set forth herein, the defendant's motion is granted and the action is ordered dismissed.
Resolution of a court's jurisdiction over child custody proceedings is governed by two statutes: the PKPA and a particular state's version of the UCCJEA. Connecticut's version of the UCCJEA is found in General Statutes § 46b-115 et. seq. A state's particular version of the UCCJEA will determine whether it has jurisdiction to decide the matter; the PKPA will determine whether the jurisdictional decision should be given full faith and credit. By virtue of the Supremacy Clause of the United States Constitution, the PKPA also imposes limits on the jurisdiction of states to enter custodial orders. Scott v. Somers, supra, 97 Conn.App. 51.
Article six of the constitution of the United States provides in relevant part that the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
The PKPA sets forth four jurisdictional bases for determining child custody or visitation. In the present case, the jurisdictional basis at issue is found in 28 U.S.C. § 1738A(c)(2)(C), which provides, in relevant part, that a "child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if "such court has jurisdiction under the law of such State, . . . the child is physically present in such State and it is necessary in an emergency to protect the child because . . . the child has been subjected to or threatened with mistreatment or abuse." This jurisdictional basis is often referred to as temporary emergency jurisdiction. Section 204 of the UCCJEA provides, in relevant part, that a court may exercise temporary emergency jurisdiction if the child is present in this state and "it is necessary in an emergency to protect the child because the child . . . has been, or is under a threat of being, abused or mistreated." This is the same standard as provided in the PKPA. The PKPA and the UCCJEA permit a court to exercise temporary emergency jurisdiction not just to prevent the repetition of abuse ("the child has been subjected to . . . mistreatment or abuse"), but also if a child is "threatened" with or is "under a threat of mistreatment or abuse. This court's review of cases decided under the PKPA and the Uniform Child Custody Jurisdiction Act (UCCJA), the predecessor to the UCCJEA, has persuaded the court that a threat of imminent emotional harm would suffice to exercise temporary emergency jurisdiction.
Connecticut's version of the UCCJEA's temporary emergency jurisdiction section is set forth in § 46b-115n. Tracking the language of the UCCJEA, it provides, in relevant part, that a court may exercise temporary emergency jurisdiction if the child is present in this state and "it is necessary in an emergency to protect the child because the child . . . has been, or is under a threat of being, abused or mistreated." The Connecticut statute, however, also provides specific guidance for the meaning of the word "abuse:" "As used in this subsection with respect to a child, `abuse' shall have the same meaning as in section 46b-120." General Statutes § 46b-120(4) defines abuse as when a child or youth "(A) has been inflicted with physical injury or injuries other than by accidental means, or (B) has injuries that are at variance with the history given of them, or (C) is in a condition that is the result of maltreatment such as . . . emotional maltreatment . . ." Reading § 46b-115n together with § 46b-120, as principles of statutory construction require, the Connecticut statutes permit a court to exercise temporary emergency jurisdiction to protect a child who is "under a threat of being" "in a condition that is the result of . . . emotional maltreatment."
No Connecticut court has yet construed the term "abuse" in the context of § 46b-115n and § 46b-120. There are cases from other jurisdictions, however, that specify what qualifies as abuse for the purpose of asserting temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), the predecessor to the UCCJEA. The UCCJA had a broader standard for the exercise of temporary emergency jurisdiction, permitting such orders to protect a child against neglect as well as abuse or mistreatment, and the defendant here correctly asserts that a finding of neglect will no longer suffice for such an order. Cases under the UCCJA applying the abuse standard, however, are still relevant in considering whether an allegation of abuse is sufficient to invoke the UCCJEA. Although decisions from courts outside Connecticut do not apply this state's statutory definition of "abuse" contained in § 46b-120, they are still instructive because all of the states that have adopted the UCCJEA, including Connecticut, use the same standard for determining when to apply temporary emergency jurisdiction — when it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse.
In Iacouzze v. Iacouzze, 137 Ariz. 605, 607, 672 P.2d 949 (1983), the Arizona Court of Appeals upheld a trial court determination that an emergency existed for temporary emergency jurisdiction where an expert had testified for the mother "that the child was `on an emotional precipice' and `any more stress was going to destroy her emotionally and intellectually.' " The court granted her temporary emergency custody and directed her to file custody proceedings in New Jersey, which had been the child's primary residence with his father in recent years. In In Re Joseph D., 19 Cal.App. 4th 678, 23 Cal. Rptr. 2d 574 (1993), a California Court of Appeals denied a father's claim that there was insufficient evidence for the trial court to invoke emergency jurisdiction where "there was a sworn declaration by a psychologist known to the court that Joseph was `potentially in imminent and/or immediate risk for psychological and/or physical danger if returned to his father's home in Pennsylvania.' " Id. "Given the declaration of [the psychologist] and the allegations of the petition, we deem it proper for the [trial] court . . . to assume emergency jurisdiction under the Uniform Act." Id., 689. In Nelson v. Nelson, 433 So.2d 1015, 1019 (Fla.Dist.Ct.App. 1983), the court stated, "[w]here a Florida court is presented with substantial evidence of imminent physical or emotional danger to the child upon the child's return to the custodial parent, it is, under the doctrine of parens patriae, empowered to issue a temporary protective order which will preserve the status quo for such limited time as is required to permit the petitioner to apply for a change of permanent custody to the state which has jurisdiction over such a petition under the provisions of the Uniform Child Custody Jurisdiction Act." See also Coleman v. Coleman, 493 N.W.2d 133 (Minn.App. 1992) (affidavit alleging emotional and physical abuse sufficient to confer temporary jurisdiction under UCCJA); Matter of Olivia H. v. John H., 130 Misc.2d 756, 758, 497 N.Y.S.2d 838 (1986) (emergency jurisdiction denied since no "imminent danger of emotional or physical harm to the child"); Matter, of Severio P. v. Donald Y., 128 Misc.2d 539, 545, 490 N.Y.S.2d 439 (1985) (exercising emergency jurisdiction under UCCJA where child was "in such a state of emotional turmoil and crisis that his return to Ohio at this time would seriously jeopardize his well-being and place him at great risk"); Soto-Ruphuy v. Yates, 687 S.W.2d 19, 21 (Tex.App. 1984) (trial court erred where "no danger of physical or emotional harm that requires immediate action to protect the child"); Ferreira v. Ferreira, 9 Cal.3d 824, 837, 512 P.2d 304, 109 Cal. Rptr. 80 (1973) (holding that the "the requirement of allegation and proof that the child's health or safety will be `jeopardized' includes a showing of substantial emotional harm or other forms of injury in addition to physical mistreatment"); McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex. 1977) (emergency jurisdiction statute "contemplate[s] a situation where the child is in imminent danger of physical or emotional harm and immediate action is necessary to protect the child").
In this matter, as in the previous matter between these parties in the Superior Court, however, the PKPA imposes a significant limitation on the jurisdiction of Connecticut courts. As the court noted in Scott v. Somers, supra, 97 Conn.App. 53 fn. 11, "the PKPA prohibits a state court from exercising jurisdiction in any child custody dispute over which another state is currently exercising jurisdiction in accordance with 28 U.S.C. § 1738A":
A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.
28 U.S.C. § 1738A(g). In this case, both parents have again filed motions in the courts of different states seeking different orders. After the plaintiff sought the order to show cause seeking temporary emergency jurisdiction in this court, the defendant filed a motion in the Florida court seeking enforcement of that court's custodial orders. Unlike before, however, both parties have how appeared through counsel in both proceedings. The temporary emergency jurisdiction statute authorizes "temporary" orders to protect against abuse "if necessary in an emergency." Because the exercise of temporary emergency jurisdiction is "an extraordinary jurisdiction reserved for extraordinary circumstances," Comment, § 204, UCCJEA, 9 U.L.A. 649 (1999), a court should be cautious when presented with requests to make orders under that guise. On the other hand, "[t]he duties of States to recognize, enforce and not modify a custody determination of another State do not take precedence over the need to enter a temporary emergency order to protect the child." Id.
Describing the earlier proceedings between the parties, the Appellate Court noted that: "Relying on the action taken by the court of his or her respective state of residence, neither party participated in the proceedings of the other state. Somers did not participate in the Connecticut proceedings, and Scott did not participate in the Florida proceedings. Therefore, regrettably, because each order is based only on the version of events presented by the party present in each state, neither order is fully informed as contemplated by the PKPA." Scott v. Somers, 97 Conn.App. 46, 55-56, 903 A.2d 663 (2006).
The facts of this case show the Florida courts consistently, in the terminology of the PKPA, "exercising jurisdiction . . . to make a custody or visitation determination" between these two parties, first by entering temporary custody orders in 2002, then by making final custodial orders in 2004, and now by hearing the mother's 2006 motion for enforcement. The most recent order of the Florida court, on January 2, 2007, granted the mother's motion and further provided that
should Respondent, Matthew Scott, fail to deliver the minor child to the mother . . ., Matthew Scott will be in willful contempt of this Court's order . . . [and] failure to deliver the minor child will result in the issuance of the Writ of Attachment to attach the body of Matthew Scott to be brought before this court to show cause why he should not be incarcerated for his wilful contempt . . .
That order shows Florida continuing to exercise its jurisdiction in this matter. Subsection (g) of the PKPA thus prohibits courts of this state from exercising jurisdiction "during the pendency" of those proceedings.
Although there may be instances when a court should issue temporary orders despite the existence of custodial orders from another jurisdiction, on balance this court agrees with the defendant that returning a child to another state in compliance with that state's valid custodial orders cannot be considered an "emergency" for purposes of entering an order under § 46b-115n when the party seeking the emergency order is also then appearing and participating in custody proceedings in the other state in which that parent could make the same claims of that constituting alleged emergency. The language of 28 U.S.C. § 1738A(g) confirms that since the State of Florida is "exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination," Connecticut courts do not have any authority to interfere with that determination. The most that this court could have done, in exercising temporary jurisdiction under § 46b-115n, would have been to enter temporary orders protecting the child while giving the father sufficient time to obtain an order from the Florida court. He has appeared in the Florida proceeding, where he could have presented his claims. The virtual simultaneity of custody proceedings in the two states counsels against interfering with the orders issued by the state with exclusive continuing jurisdiction, particularly where the father has appeared in the proceeding in that other state.
The facts of this case thus do not require the court to decide whether it would adopt the reasoning of the California Court of Appeals in In re Mac, 2006 WL 2258028 (Cal.App. 2 Dist.), and the Florida Appellate Court in In Re D.N., 858 So.2d 1087 (Fla.App. 2003), that the temporary emergency provisions of § 204 of the UCCJEA can never be invoked once another state has entered custodial orders entitled to deference under the PKPA.
When this court entered the ex parte order of temporary custody to the father under § 46b-115n, the court did so without prejudice to the mother. Through her attorney, she has offered compelling authority and argument that the court should not continue to exercise temporary emergency jurisdiction under that statute. Accordingly, then, the motion to vacate the order of temporary emergency jurisdiction is granted. Since plaintiff's request for such an order is the only matter presently pending, the court, on its own motion, follows the directive of the Appellate Court and orders the case dismissed for lack of subject matter jurisdiction.
At the ex parte hearing, this court heard chilling evidence from a psychologist retained by the child's guardian ad litem on the severe emotional harm to the child if her present emotional condition and needs are not taken into consideration in effectuating her return to the mother's custody. The plaintiff must now present such claims to the Florida court for its consideration.