Opinion
No. FA 06-4020140S
August 18, 2006
MEMORANDUM OF PARTIAL DECISION ON MOTION TO DISMISS (#104)
The defendant, a resident of Brooklyn, New York, has moved to dismiss this action for a legal separation brought by his wife, who moved to this state with the parties' two children in February of this year and has since resided here with them while the defendant stayed behind in Brooklyn. His argument that the court lacks jurisdiction to enter child custody orders presents a question of first impression in this state and requires the court to address conflicting provisions in the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), codified in chapter 815p of the Connecticut General Statutes, §§ 46b-115 et seq. For the reasons set forth below, that aspect of the motion claiming lack of subject matter jurisdiction over the marriage or personal jurisdiction over the defendant is denied. The court reserves decision on the defendant's claims of lack of jurisdiction to enter child custody orders and that the case should be dismissed on grounds of forum non conveniens.
I PROCEDURAL BACKGROUND
The defendant's written motion merely asserts that the court "is without jurisdiction in this matter," but his affidavit and memorandum of law, filed with that motion in conformity with our rules of practice, claim both lack of personal and subject matter jurisdiction. After the plaintiff filed a responsive memorandum, a hearing was held on the motion on May 25, 2006. At that hearing, the defendant further argued that the court lacked jurisdiction to enter custodial orders over the minor children and should dismiss the action on grounds of forum non conveniens, claims addressed in the plaintiff's memorandum of law. After the court ordered additional evidence on issues not raised at the initial hearing, a second hearing was held on July 13, 2006, and additional briefs were submitted thereafter. On both occasions the plaintiff appeared with counsel and testified, and, though the defendant was not in court either time, his attorney was present both times.
II FINDINGS OF FACT
After the hearings on this matter, the court finds the following facts relevant to the motion under consideration:
Additional findings of fact relevant to specific legal issues in the case are discussed in later portions of this decision.
1. The parties have two minor children, twins born on January 29, 2004.
2. The plaintiff's county of origin is Canada. In April 2005 she married the defendant in New York State, where he had lived for 30 years. Many of his family members live in New York, and most of hers are in Toronto.
3. The parties lived together in Brooklyn, New York, with their children but decided to move to Connecticut to have a better environment for their children.
4. In November 2005 the plaintiff, who is a social worker, began working at a job in Connecticut to which she initially commuted back and forth from the parties' Brooklyn residence.
5. The husband purchased a home for the family in Milford, Connecticut on which the closing occurred on January 6, 2006.
6. After the closing the parties and children regularly went back and forth between both states while doing repairs and renovations on the new home but the children remained enrolled in daycare in New York until the end of January 2006.
7. Before the parties moved into the Milford home, a domestic violence incident occurred between them and they separated. The plaintiff subsequently sought a restraining order against the defendant from a court in New York, and he filed an action claiming she was harassing him. In May the plaintiff testified that New York courts had scheduled hearings on those matters in June, but this court has no further information about those actions.
8. On February 3, 2006, the plaintiff moved into the Milford home with the parties' children, and all three have resided permanently here since then. The defendant did not move his residence to this state but instead remained in New York and has not seen the children since then.
9. After moving to Connecticut the children were cared for during the day by their maternal aunt until April first, when they began attending a daycare facility in this state while the mother works days.
10. In order to enroll the children in the daycare, the plaintiff needed a health certificate, for which she took them to their pediatrician in New York. Since moving here permanently in February, the plaintiff has continued taking the children to their Brooklyn pediatrician, who has seen them four times since then for a complete physical, two routine checkups, and an ear infection.
11. While they lived in New York the children worshiped with their parents at the Brooklyn Tabernacle, but since April they have been attending religious services in Milford, Connecticut.
12. Since moving here, one of the children has exhibited significant behavioral problems, regarding which the mother has contacted a Milford social agency that works with children having such problems and conferred with the child's Brooklyn pediatrician.
13. After being served with process in this action, the defendant instituted a divorce action in New York courts. The plaintiff has appeared in that action and filed responsive pleadings seeking sole legal and physical custody of the minor children and an order of child support.
III DISCUSSION
A motion to dismiss is the proper method to raise lack of personal or subject matter jurisdiction in a family matter. LaBow v. LaBow, 171 Conn. 433, 436-37 (1976). Jurisdiction is the power of a court to hear and determine the cause of action presented to it. Zizka v. Water Pollution Control Authority, CT Page 15204 195 Conn. 682 (1985). "[I]n ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 326, 780 A.2d 98 (2001).
The defendant's claims that the court lacks personal jurisdiction over him or subject matter over the action may be rather summarily rejected. The amended complaint alleges two of the statutory bases for a legal separation — that the cause of the separation arose after one of the parties had moved to this state and that the plaintiff will have resided in this state for at least a year before entry of the final decree. The residency requirement in the statute is sufficient to confer subject matter jurisdiction to enter a judgment of legal separation to a party meeting that requirement; Williams v. North Carolina, 317 U.S. 287, 299 (1942) (holding that "each state, by virtue of its command over its domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent"); even if the other spouse does not live here and has only been constructively served with notice of the proceedings. Atherton v. Atherton, 181 U.S. 155 (1901).
Section 46b-44(a) of the General Statutes provides in pertinent part as follows: "(a) A complaint for dissolution of a marriage or for legal separation may filed at any time after either party has established residence in this state. (b) Temporary relief pursuant to the complaint may be granted in accordance with sections 46b-56 and 46b-83 at any time after either party has established residence in this state. (c) A decree dissolving a marriage or granting a legal separation may be entered if: (1) One of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree; or (2) one of the parties was domiciled in this state at the time of the marriage and returned to this state with the intention of permanently remaining before the filing of the complaint; or (3) the cause for the dissolution of the marriage arose after either party moved into this state."
Upon application of the plaintiff, the court entered an order of notice permitting service of process "by having some authorized person in the state where the party to be notified lives serve said party and file proof of service" with this court pursuant to General Statutes § 46b-46(a). The defendant has not challenged the affidavit filed by plaintiff averring that a deputy sheriff authorized under New York law to serve civil process delivered the same to the defendant. The presence of the wife in Connecticut, the defendant's purchase of real property with the intent to relocate to this state and the other proven facts meet the constitutional requirement of "minimum contacts"; International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); sufficiently to provide personal jurisdiction over the defendant in this proceeding for a legal separation.
Sectidn 46b-46, captioned "Notice to nonresident party. Jurisdiction over nonresident for alimony and support," provides in pertinent part as follows: "(a) On a complaint for dissolution, annulment legal separation or custody, if the defendant resides out of or is absent from the state or the whereabouts of the defendant are unknown to the plaintiff, any judge or clerk of the Supreme Court or of the Superior Court may make such order of notice as such judge or clerk deems reasonable. After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending. If it does not appear that the defendant has had such notice, the court may hear the case, or, if it sees cause, order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with. Nothing in this section shall be construed to affect the jurisdictional requirements of chapter 815p in a complaint for custody."
The more difficult question here is whether the court has jurisdiction to enter custodial orders regarding the parties' minor children. The UCCJEA limits a court's ability to enter custodial orders. In this state, Section 46b-115k of the General Statutes specifies the only times that a court may do so. Subsection one of that statute confers that authority when, on the date that an action concerning custody begins, Connecticut is the child's "home state," as that term is defined in General Statutes § 46b-115(a)(7):
Section 46b-115K provides as follows:" (a) Except as otherwise provided in section 46b-115n, a court of this state has jurisdiction to make an initial child custody determination if: (1) This state is the home state of the child on the date of the commencement of the child custody proceeding; (2) This state was the home state of the child within six months of the commencement of the child custody proceeding, the child is absent from the state, and a parent or a person acting as a parent continues to reside in this state; (3) A court of another state does not have jurisdiction under subdivisions (1) or (2) of this subsection, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships; (4) A court of another state which is the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision substantially similar to section 46b-115q or section 46b-115r, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child's care, protection, training and personal relationships; (5) All courts having jurisdiction under subdivisions (1) to (4), inclusive, of this subsection have declined jurisdiction on the ground that a court of this state is the more appropriate forum to determine custody under a provision substantially similar to section 46b-115q or section 46b-115r; or (6) No court of any other state would have jurisdiction under subdivisions (1) to (5), inclusive, of this subsection. (b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state. (c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination."
"Home state" means the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a custody proceeding . . . A period of temporary absence of any such person is counted as part of the period; . . .
Despite earlier claims from plaintiff, no one now claims here that Connecticut is the home state of the parties' children, and subsection one is not applicable here. When this action was commenced in April 2006, the children had lived here for less than six months.
Subsections three though six are not applicable here either, for various reasons. Subsection three permits Connecticut courts to exercise jurisdiction if there is substantial evidence in this state concerning the child's care, protection, training and personal relationships and no other state qualifies as a home state; but this provision does not apply because New York, for reasons more fully described below, does qualify as the children's home state. Subsections four and five apply when another jurisdiction is the home state but has declined to exercise jurisdiction on the ground that Connecticut is the more appropriate forum and the child has a "significant connection" to this state. As of the date of this decision, no court of any other state has declined jurisdiction in this matter, and these sections are not presently applicable. Subsection six confers jurisdiction only if no state would otherwise qualify to have jurisdiction under the UCCJEA.
As this court has already intimated, however, it has concluded that New York has jurisdiction over the minor children. Section 201(a)(1) of the UCCJEA, codified in this state as General Statutes § 46b-115k(a)(2) and in New York State as Domestic Relations. Law § 76(1), provides that a state has jurisdiction to make an initial child custody determination "if it was the home state of the child within six months before the commencement of the proceeding and the child is absent from the state but a parent or person acting as a parent continues to live in the state." The plain language of this statute appears to create a "look back" provision: if, at any time during the six months preceding an action, a state would have qualified for home state status, that state retains jurisdiction to enter custodial orders if a parent still lives there even though the children no longer do. Under this provision, New York would have custody jurisdiction over the parties' twin children. They had been absent from New York for approximately three months when the plaintiff filed this action, but their father still lived in New York. Until they left New York three months previously, New York had been their home state.
The text of that section is recited in footnote 3 above.
Section 76 of the New York Domestic Relations law, captioned "Initial child custody jurisdiction," provides in relevant part as follows: "1. Except as otherwise provided in section seventy-six-c of this title, a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state is the home state of the child on the date of the commencement of the proceeding, or 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; (b) a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section seventy-six-f or seventy-six-g of this title, and: (i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and (ii) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships; (c) all courts having jurisdiction under paragraph (a) or (b) of this subdivision have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section seventy-six-f or seventy-six-g of this title; or (d) no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or (c) of this subdivision. 2. Subdivision one of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state."
Section 201(a)(1) of the UCCJEA provides as follows: "Except as otherwise provided . . . a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state is the home state of the child on the date of the commencement of the proceeding, or 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," UCCJEA, 9 Uniform Laws Annotated ("U.L.A.") 649, 671 (1999). When adopting the UCCJEA, the Connecticut legislature divided § 201(a)(1) into two separate subsections; see footnote four, infra, for the text of the statute. For purposes of clarity, this court will use the Connecticut subdivisions when referring to the different types of jurisdiction.
The plaintiff argues, however, that New York does not have jurisdiction under this section, because the statutory requirement that New York have been the home state within the six months before this case was filed means that the children must have resided in New York for the six months preceding the filing of this case. Her argument flows quite logically from the definition of the term "home state" under the UCCJEA, which requires that the child must have "lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding, . . ."
As the facts of this case show, the plain language of these two portions of the UCCJEA, applied in isolation from each other, does not mesh well. Subsection two appears to confer jurisdiction in New York State because it had been the twins' home state until three months before this action began — thus fitting the statutory requirement of being "the home state within six months before commencement of the proceeding." The definition of home state, however, limits home state status to those states where the child has lived for the six months immediately preceding the action. Reading each provision literally appears to create a legal impossibility: a state would have jurisdiction it at any point during the six months before the preceding, it had qualified for home state status, but the very definition of home state looks only to where the child had been for the six months before the action began. As the Arizona court of Appeals noted in Welch-Doden v. Roberts, 202 Ariz. 201, 206, 42 P.3d 1156, 1171 (App. 2002),
This decision draws heavily upon that court's opinion, whose logic and conclusions this court finds compelling.
the two statutes directly conflict. Element two of [§ 46b-115k(a)(2)] provides that a state has jurisdiction if it is the "home state . . . within six months before" the commencement of the child custody proceeding. [The definition of home state contained in § 46b-115(a)(7)] requires that in order to be a "home state" at all, a child must have lived in a state for six consecutive months "immediately before" the child custody proceeding. Thus, if a child's home state two months before a proceeding was commenced is different from the state to which a child has permanently moved (and in which the proceeding was commenced), [the definition of home state contained in § 46b-115(a)(7)] would indicate there is no home state at all. Initial jurisdiction would then be determined based on substantial connections to the state and other factors under [§ 46b-115k(a)(2)]. On the other hand, under the same facts, element two of [§ 46b-115k (a)(2) would declare the prior state the home state because it was the home state within six months of the filing.
Resolving this conflict is a matter of statutory construction. In addressing this issue, the court need not also consider the validity of the Public Act 03-154, as the methods of statutory interpretation both mandated therein and by the Supreme Court in State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003), yield the same result. Under either methodology, the court must "begin with the language of the applicable statutes. In performing this task, we begin with a searching examination of the language of the statute, because that is the most important factor to be considered. In doing so, we attempt to determine [their] range of plausible meanings, and, if possible, narrow that range to those that appear most plausible." (Internal citations omitted.) Paul Dinto Electrical Contractors, Inc. v. Waterbury, 266 Conn. 706, 718 (2003). Since the text of the statutory language itself shows conflict, the court must "also seek interpretive guidance from the legislative history of the statute and the circumstances surrounding its enactment, the legislative policy it was designed to implement, the statute's relationship to existing legislation and common-law principles governing the same general subject matter." (Citation omitted.) Teresa T. v. Ragaglia, 272 Conn. 734, 742, 865 A.2d 428 (2005). "[W]e read related statutes to form a consistent, rational whole, rather than to create irrational distinctions . . . [S]tatutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law . . ." (Citations omitted; internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 557, 800 A.2d 1102 (2002).
Public Acts 2003, No. 03-154, § 1 ( P.A. 03-154) [now General Statutes § 1-2z], provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
"The process of statutory interpretation involves a reasoned search for the intention of the legislature. In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation." (Quotations omitted; citations omitted.) State v. Courchesne, 262 Conn. 537, 577-78, 816 A.2d 562 (2003); 262 Conn. 537 [577-78], 816 A.2d 562 (2003).
The precursor to the UCCJEA was the Uniform Child Custody Jurisdiction Act ("UCCJA"), adopted in 1968 by the National Conference of Commissioners on Uniform State Laws. "The stated purposes of the UCCJA were to avoid jurisdictional competition and conflict, promote cooperation between states, discourage the use of the interstate system to continue custody controversies, deter abductions, avoid relitigation in different states, and facilitate enforcement of custody decrees between states. UCCJA § 1, 9 Uniform Laws Annotated ('U.L.A.') 271 (1999)," Welch-Doden v. Roberts, 202 Ariz. 201, 206, 42 P.3d 1156, 1171 (App. 2002). The UCCJA provided initial jurisdiction in child custody disputes not just for the home state, but also on three other bases: significant connections to a state and a consideration of the child's relationships, training, care and protection; emergency or abandonment; and the child's best interests. "However, state courts were split as to whether the four bases were equal or whether home state was preferred . . . These conflicts created an unworkable and non-uniform interstate act." Id. As our Appellate Court recently noted, "the UCCJA proved to be an inadequate solution to the problem of parental kidnapping and interstate custody disputes." (Citation omitted.) Scott v. Somers, 97 Conn.App. 46, 51 (2006). Congress enacted the Parental Kidnapping Prevention Act (PKPA) of 1980, 28 U.S.C. § 1738A, "to remedy the defects of the UCCJA with a uniform federal statute." Meade v. Meade, 812 F.2d 1473, 1476 (4th Cir. 1987). The PKPA requires states to grant full faith and credit to child custody decisions of other states only for decisions based on home state status and not for the other three UCCJA jurisdictional bases.
Section 3 of the UCCJA provided as follows "(a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree only when: (1) this state (i) is the home state of the child at the time of commencement of the custody proceeding, or (ii) had been the child's home state within six months before commencement of such proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or (2) it 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 contestant, have a significant connection with this state, and (ii) there is within the jurisdiction of the court substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or (3) the child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child; or (4)(i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), (b), or (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction." § 3, UCCJA, 9 U.L.A. 271, 307-08 (1999).
"Unfortunately the UCCJA has proven to be an imperfect remedy. While all states have now adopted some version of the UCCJA, they have enacted different versions and state courts have varied in their interpretations of the Act's requirements. Some states, for example, conclude that the Act permits them to modify another state's order as long as it has jurisdiction under the Act to issue an initial order . . . The result has been variation where uniformity is desperately needed.
"Congress designed the PKPA to remedy the defects of the UCCJA with a uniform federal statute. While under the UCCJA scheme some states profess to find modification jurisdiction so long as they can properly exercise initial custody jurisdiction, the PKPA prevents a second state from modifying an initial state's order except in carefully circumscribed situations. This presumption of continuing and exclusive jurisdiction discourages dissatisfied parents from seeking new custody orders from a second state. Differently stated, the statutory presumption encourages parents to concentrate their energies on presenting all evidence about their child's best interests in the courts of a single state, ordinarily the court which entered the initial custody decree."
Meade v. Meade, 812 P.3d 1473, 1477 (4th Cir. 1987).
The relevant portion of the PKPA, 28 U.S.C. § 1738A, captioned Full Faith and Credit Given to Child Custody Determinations, provides as follows: "(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsections (f), (g), and (h) of this section, any custody determination or visitation determination made consistently with the provisions of this section by a court of another State . . . (c) A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if — (1) such court has jurisdiction under the law of such State; and (2) one of the following conditions is met: (A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State; (B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships; (C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse; (D)(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or (E) the court has continuing jurisdiction pursuant to subsection (d) of this section."
When the National Conference of Commissioners on Uniform State Laws, which had authored the UCCJA, drafted the UCCJEA in 1997, the main purpose for revising the UCCJA was to eliminate disputes between competing jurisdictions. The UCCJEA drafters "dealt specifically with the conflict created by differing jurisdictions taking contrary views of the four bases of jurisdiction. They reconciled the jurisdictional provisions of the UCCJA with the PKPA"; Welch-Doden v. Roberts, supra, 202 Ariz. 208; by firmly establishing home state status as the preferred basis for child custody jurisdiction. Only if no state were the home state, or if a home state specifically declined jurisdiction could a state not meeting home state status exercise jurisdiction.
The Prefatory Note to the UCCJEA notes that:
"The revisions of the jurisdictional aspects of the UCCJA eliminate the inconsistent state interpretations and can be summarized as follows:
"1. Home state priority. The PKPA prioritizes `home state' jurisdiction by requiring that full faith and credit cannot be given to a child custody determination by a State that exercises initial jurisdiction as a `significant connection state' when there is a `home State.' Initial custody determinations based on `significant connections' are not entitled to PKPA enforcement unless there is no home State. The UCCJA, however, specifically authorizes four independent bases of jurisdiction without prioritization. Under the UCCJA, a significant connection custody determination may have to be enforced even if it would be denied enforcement under the PKPA. The UCCJEA prioritizes home state jurisdiction in Section 201."
Prefatory Note, UCCJEA, 9.U.L.A. supra, 650-51.
Since one of the primary purposes of the UCCJEA was to avoid "the jurisdictional competition and conflict that flows from hearings in competing states when each state substantively reviews subjective factors (such as "best interests") for purposes of determining initial jurisdiction," the Arizona Court of Appeals concluded in Welch-Doden v. Roberts that the "statutory conflict in the application of home state jurisdiction . . . should be resolved to strengthen (rather than dilute) the certainty of home state jurisdiction." Id. It thus construed the conflict between the definition of home state, which requires that a child live within a state for the six months immediately before the action began, and subsection two of the UCCJEA's jurisdiction provision, which confers jurisdiction if a child had a home state any time during the six months before the action began, by concluding that the latter provision "acts to enlarge and modify the definition of home state." Id.
We hold that "home state" for purposes of determining initial jurisdiction . . . is not limited to the time period of "six consecutive months immediately before the commencement of a child custody proceeding[.]" Instead, the applicable time period to determine "home state" in such circumstances is "within six months before the commencement of the [child custody] proceeding." This interpretation promotes the priority of home state jurisdiction that the drafters specifically intended. To adopt the reading that mother supports would result in narrowing home state jurisdiction. It would increase the number of potentially conflicting jurisdictional disputes in competing jurisdictions. This is contrary to the UCCJEA's purpose.
(Citations omitted.) Id., 208-09. Accord, Stephens v. Fourth Judicial Dist. Court, 331 Mont. 40, 128 P.3d 1026 (2006); Thomas v. Ark. Dep't. of Human Servs., 2005 Ark.App. LEXIS 305 (Ark.Ct.App. 2005); In re McCoy, 52 S.W.3d 297, 303-04 (Tex.App. 2001).
This court concurs. Such an interpretation reconciles the two conflicting provisions, implements the primary purpose of the UCCJEA, and avoids the result of rendering subsection two of General Statutes § 46b-115k(a) meaningless. To hold otherwise would make subsection two virtually identical in meaning to subsection one. Rather, subsection two appears specifically intended to address the present situation of the parties: when children move with a parent from a state with home state status to another state, the former state does not lose its home state status if the other parent stays there until the children have lived in the new state for six months, at which point that state has acquired home state status. Such an interpretation is also consistent with the notion contained in the definition of "home state" that "temporary absence" from a state will not defeat home state status — i.e., until parent and child have lived in the new state for at least six months, their departure from the previous state may be construed as a "temporary absence." In view of the fact that the PKPA and UCCJEA seek to avoid conflicting custody decisions by according primary emphasis to a child's home state, the obvious and logical purpose of subsection two is to extend home state status after the child has left the state but one parent has stayed behind. The drafters' own comments to the UCCJEA confirm this intent:
The six-month extended home state provision . . . has been modified slightly from the UCCJA. The UCCJA provided that home state jurisdiction continued for six months when the child had been removed by a person seeking the child's custody or for other reasons and a parent or a person acting as a parent continues to reside in the home State. Under this Act, it is no longer necessary to determine why the child has been removed. The only inquiry relates to the status of the person left behind. This change provides a slightly more refined home state standard than the UCCJA or the PKPA, which also requires a determination that the child has been removed "by a contestant or for other reasons." The scope of the PKPA's provision is theoretically narrower than this Act. However, the phase "or for other reasons" covers most fact situations where the child is not in the home State and, therefore, the difference has no substantive effect.
Comment, § 201, UCCJEA, 9 U.L.A. 649, 672 (1999).
The court thus concludes that it does not have jurisdiction to enter a child custody order under § 46b-115k(a)(2) because, regardless of any "connections" with this jurisdiction, New York is the home state with custodial jurisdiction. The UCCJEA does not mandate automatic dismissal of this action, however, but instead provides directions to courts when there are, as here, simultaneous actions pending regarding custody. Section 206 of the UCCJEA, codified as General Statutes § 46b-115p, provides that when a Connecticut court learns that a custody proceeding is pending in the court of another state, it shall communicate with the court of that "to resolve which court shall have jurisdiction." If the court determines that a court of the other state has jurisdiction, the Connecticut court is required to "stay its proceeding while the court of the other state determines whether the court of this state is the more appropriate forum."
Section 46b-115p captioned "Simultaneous proceedings, provides in relevant part as follows:
"(a) Except as otherwise provided in section 46b-115n, if at the time of the commencement of the proceeding in this state a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction pursuant to a provision substantially similar to section 46b-115k, 46b-115l or 46b-115m, a court of this state shall not exercise jurisdiction. A court of this state may exercise jurisdiction if the proceeding in the other state has been terminated or is stayed by the court of the other state because such court has determined pursuant to a provision substantially similar to section 46b-115q, that a court in this state is a more convenient forum; (b) Except as otherwise provided in section 46b-115n, the court shall, after review of relevant information provided to it, determine whether a child custody proceeding has been commenced in another state. If such proceeding has been commenced, the court in this state shall take appropriate action to communicate with the other court and to resolve which court shall have jurisdiction. If the court of this state determines that the court of the other state has jurisdiction pursuant to a provision substantially similar to section 46b-115k, 46b-115l or 46b-115m, the court of this state shall stay its proceeding while the court of the other state determines whether the court of this state is the more appropriate forum. If the court of the other state determines that the court of this state is not a more appropriate forum, the court of this state shall dismiss the proceeding."
In accord with the mandate of § 46b-115p, this court shall take action to communicate with the New York court of record. Since the court presently lacks specifics about the locale of that case, the court orders the parties to provide this court with information immediately pertaining to the court in which the New York divorce action is pending, the caption, docket number, other pertinent information necessary to identify the case, and the name and location of any judge assigned to the case. The court intends to provide a copy of this decision to that court before the two courts confer. Pursuant to General Statutes § 46b-115h, the court will notify the parties of the date and time of such communication and, if practicable, allow them to be present while the courts communicate. The court will thereafter decide whether to stay or dismiss this action, or, if the New York court declines jurisdiction, there are substantial contacts to warrant jurisdiction here, and will also then decide defendant's claim of forum non conveniens.
Section Sec. 46b-115h, captioned "Communication between courts," provides as follows: "(a) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter; (b) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made; (c) Communication between courts on schedules, calendars, court records and similar matters may occur without informing the parties, A record need not be made of the communication. (d) Except as otherwise provided in subsection (c) of this section, a record must be made of a communication under this section. The parties must be informed promptly of the communication and granted access to the record; (e) For the purposes of this section, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.