IN RE MADISON, 59962-3-I (Wash.App. 6-25-2007)

No. 59962-3-I.The Court of Appeals of Washington, Division One.
June 25, 2007.

Appeal from a judgment of the Superior Court for King County, No. 05-3-06974-4, James A. Doerty, J., entered April 17, 2007.

Reversed by unpublished per curiam opinion.

PER CURIAM.

The mother of a child born in Illinois seeks discretionary review of a trial court order holding that King County has jurisdiction to determine the child’s custody. Because King County’s assertion of jurisdiction is contrary to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), we grant review and reverse.

Jill Madison filed for dissolution of her marriage to Brett Canfield in King County on September 30, 2005. Madison’s petition stated that she was pregnant and asked the court to approve a proposed parenting plan for the unborn child. Madison then moved to Illinois, where the child was born on January 19, 2006, and where she and the child have since continuously resided.

The parties resolved most of the dissolution issues by agreement but were unable to agree on a parenting plan. On March 8, 2007, Canfield sought a declaration in the dissolution action that King County had jurisdiction to determine the custody issue. On March 13, 2007, the King County Superior Court issued a dissolution decree based on the parties’ resolution of most of the dissolution issues, but which reserved the issue of a parenting plan. On March 30, 2007, Madison filed a petition for custody in Illinois, alleging that Illinois is the child’s home state and that it had jurisdiction to determine custody. Canfield was served on April 10. On April 13, the King County Superior Court entered an order recognizing its own jurisdiction under RCW 26.27.201(1)(b) or (1)(d), and enjoining Madison from pursuing any child custody determination elsewhere. Madison filed a motion for discretionary review of this order. A commissioner granted Madison’s motion for a stay of further proceedings in King County and referred the motion for discretionary review to a panel of judges.

We review questions of subject matter jurisdiction de novo.[1]

The relevant Washington and Illinois statutes are adopted from the UCCJEA. The UCCJEA was adopted in Washington in 2001 and replaces the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJEA was intended to rectify shortcomings in the UCCJA and resolve conflicting case law that had arisen under the UCCJA.[2] Because the UCCJEA is intended to correct problems that arose under the UCCJA, cases resolved under the UCCJA must be viewed with caution.[3]

The UCCJEA gives priority to “home state” jurisdiction. The “home state” of a child is the state where the child lived with a parent for at least six consecutive months immediately before the commencement of a “child custody proceeding”. RCW 26.27.021(7); 750 ILCS36/102(7). A “child custody proceeding” is a proceeding in which legal custody is at issue and includes a proceeding for dissolution in which the issue may appear. RCW 26.27.021(4); 750 ILCS36/102(4).

The trial court determined that it had jurisdiction under RCW 26.27.201(1)(b) or (1)(d). This statute provides:

(1) Except as otherwise provided in RCW 26.27.231, 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 (a) of this subsection, 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 RCW 26.27.261 or 26.27.271, 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 (a) of this subsection 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 RCW 26.27.261 or 26.27.271; or

(d) No court of any other state would have jurisdiction under the criteria specified in (a), (b), or (c) of this subsection.

(2) Subsection (1) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

(3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

Because the child in this case has never lived in Washington, Washington cannot be the “home state”. Because the child has lived continuously in Illinois for more than six months and because a child custody proceeding has been commenced in Illinois, Illinois is the child’s “home state”. Because Illinois has jurisdiction under RCW 26.27.201(1)(a) and has not declined to exercise it, RCW 26.27.201(1)(b) and (1)(d) cannot apply. The statute provides for jurisdiction “only if” one of the four listed scenarios occurs. Washington does not have jurisdiction under the statute to determine the custody of this child.

Discretionary review is appropriate if the trial court has committed obvious error which renders further proceedings useless. RAP 2.3(b). We conclude that that the King County Superior Court does not have jurisdiction to determine the issue of custody in this case. We therefore grant review and reverse.