No. 58727-7-I.The Court of Appeals of Washington, Division One.
June 25, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-3-01808-9, Bruce I. Weiss, J. Pro Tem., entered August 4, 2006.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
In this appeal, Mark Loftus argues that the Snohomish County Superior Court violated a Georgia child custody and visitation order and state and federal statutes when it declined to grant him physical custody of his son, Erik. The superior court did not err because it did not have the authority to modify an earlier order entered by a court in Georgia granting legal and physical custody of Erik to Sally Malan. We affirm.
Loftus and Malan divorced in Fulton County, Georgia in 1999. Since the divorce, the parties have had ongoing disputes over the custody, visitation, and medical care of their son, Erik, who suffers from Asperger’s Syndrome, ADHD (attention deficit hyperactivity disorder), and depression.
The Fulton County Superior Court entered an order on March 23, 2004, granting Malan sole physical custody of Erik, with the parties sharing joint legal custody. In November 2004, the court modified the March 2004 order and granted Malan sole legal and physical custody of Erik. The court further found the father in contempt by interfering with Erik’s medical treatments and refusing to administer prescribed medications.
The court granted Loftus visitation on the first and third weekends of each month, but the court allowed Erik to elect not to visit with his father or to visit for only part of the scheduled time. If Erik chose not to visit with Loftus or chose to visit for only part of the scheduled time, Erik or his mother was to make every effort to notify the father within 48 hours of any change from the scheduled visit.
In August 2005, Malan and Erik moved to Washington. On August 1, 2006, Loftus filed a motion in the Snohomish County Superior Court for enforcement of the Georgia superior court’s November 2004 order. Believing that the order, which granted him visitation, prohibited Malan from moving to Washington with Erik, Loftus asked the Snohomish County court to grant him physical custody of Erik.
In response to Loftus’ motion, Malan agreed that the order entered by the Fulton County (Georgia) Superior Court in November 2004 remained in effect, but she asserted she had not violated that order. Malan further declared that Erik had informed Loftus in August 2005 that he was electing to not visit with Loftus until further notice.[1]
On August 4, 2006, the Snohomish County Superior Court confirmed Loftus’ registration of the November 2004 Georgia court order. The Snohomish County court, however, denied Loftus’ request for custody of Erik, stating:
2. Relief sought by [Petitioner] Mark Loftus for immediate change of custody of the child to his care and return to Georgia is denied as exceeding the scope of enforcement pursuant to RCW 26.27.451 which prohibits modification of another state’s custody order (except under certain circumstances not raised herein).
3. Georgia has not, to this court’s knowledge, declined ongoing, exclusive jurisdiction over this child.
4. This court therefore will enforce the terms of the registered order only and shall not act to modify the terms thereof.
Clerk’s Papers, at 8-9. Loftus appeals.
Acting without an attorney, Loftus argues that the Snohomish County Superior Court violated the Georgia court’s order and state and federal statutes when it refused to grant him custody of Erik.[2] We disagree.
Under the Uniform Child Custody Jurisdiction and Enforcement Act, which is codified in Washington in chapter 26.27 RCW, courts in this state have a duty to enforce a child custody determination made by a court of another state if the other state’s court exercised jurisdiction in conformity with chapter 26.27 RCW and that determination has not been modified. RCW 26.27.421(1). A Washington court may not modify a child custody determination made by a court of another state
unless a court of this state has jurisdiction to make an initial determination under RCW 26.27.201(1)(a) or (b) and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under RCW 26.27.211 or that a court of this state would be a more convenient forum under RCW 26.27.261; or
(2) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.
RCW 26.27.221.
Loftus did not provide evidence to show that the Georgia court determined it no longer had exclusive, continuing jurisdiction or that Washington would be a more convenient forum, and Loftus resides in Georgia. Consequently, the Snohomish County Superior Court correctly held that it did not have the authority to modify the Fulton County (Georgia) court’s November 2004 order.
Loftus further contends that the Snohomish County Superior Court violated the Georgia court’s order because that order was “entirely an intrastate custody order.” He implies that because the Georgia court’s order granted him visitation, Malan could not move with Erik to Washington. But nothing in the Georgia court’s order prohibited Malan from moving to another state. Neither has Loftus cited any authority that when an order grants a parent visitation, the other parent may not move from the state where the order was entered.
Loftus also argues he was entitled to physical custody of Erik under RCW 26.27.491(1), which provides as follows:
(1) Unless the court issues a temporary emergency order pursuant to RCW 26.27.231, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:
(a) The child custody determination has not been registered and confirmed under RCW 26.27.441 and that:
(i) The issuing court did not have jurisdiction under Article 2;
(ii) The child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Article 2; or
(iii) The respondent was entitled to notice, but notice was not given in accordance with the standards of RCW 26.27.081, in the proceedings before the court that issued the order for which enforcement is sought; or
(b) The child custody determination for which enforcement is sought was registered and confirmed under RCW 26.27.441 but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Article 2.
Loftus’ argument that RCW 26.26.491(1) required the court to grant him immediate custody of Erik ignores that the statute requires the court to find that the petitioner is entitled to immediate custody. The superior court did not make such a finding in this case.
Loftus also contends that the court erred by failing to apply 28 U.S.C.A. 1738A before it accepted the November 2004 Georgia order as valid. Loftus’ argument is peculiar because he submitted the Georgia court’s order to the superior court for confirmation and he argues elsewhere that the superior court erred by failing to enforce the order. Regardless, Loftus’ argument fails because 28 U.S.C.A. 1738A requires state courts to give full faith and credit to custody or visitation determinations entered by a court of another state unless the other state no longer has jurisdiction or has declined to exercise jurisdiction. See 28 U.S.C.A. 1738A(f), (g), and (h). Neither of those conditions was satisfied in this case.
Additionally, Loftus contends that Malan modified the Georgia court’s order by moving with Erik to Washington. But the order gave Malan legal and physical custody of Erik. Moreover, although Loftus was granted visitation, the order gave Erik the right to decline to visit with Loftus. According to Malan, Erik repeatedly has exercised that right.
In summary, the Snohomish County Superior Court correctly declined to grant Loftus custody of Erik. The decision of the trial court is affirmed.