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Bellew v. Larese, S10A1334

*All courts mentioned are at the state level.

  • The parties were married in Italy.  Mother is an Italian national and Father is a U.S. citizen.  The couple has a minor child who was born in Italy, and who has dual Italian and U.S. citizenship.
  •  In May of 2007, Mother left with the child for Italy for a summer vacation.  On August 1, 2007, she filed for divorce and custody proceedings in the Tribunale di Firenze, a court of general jurisdiction in Italy.
  • Father filed for divorce on September 17, 2007 in the Superior Court of Athens-Clarke County (“trial court”).  Service was effected by publication, and on November 15, 2007 Mother entered a special appearance.
  • On November 27, 2007 the trial court conducted a hearing and entered a temporary order granting sole legal and physical custody of the child to Father; however, the child remained in Italy.
  • The Tribunale di Firenze (“Italian Court”) also conducted a hearing, at which Father did not appear, and entered an order on February 29, 2008 exercising jurisdiction over the divorce and granting exclusive custody to Mother with Father having visitation.
  • Mother moved to stay the trial court’s proceedings and for the trial court to communicate with the Italian Court, asserting that such was required by the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) (OCGA § 19-9-40, et seq.).
  • On January 7, 2010, the trial court issued an order dismissing Father’s complaint, stating that the Italian Court is the proper forum for this action based upon the provisions of the UCCJEA.
  • Father appealed and contended that the trial court erred in determining the jurisdictional issue under the UCCJEA.
  • OCGA § 19-9-61(a)(1) provides that a court has jurisdiction to make an initial child custody determination only if the court’s state “is the home state of the child on the date of the commencement of the proceedings, 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.”
  • However, a court of this state may not exercise its jurisdiction under the foregoing statute if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article.  OCGA § 19-9-66(a).
  • Under the UCCJEA a foreign nation is treated in the same manner as would be a sister state of the United States.  OCGA § 19-9-44.
  • The question then is whether the expression of jurisdiction by the Italian court was done in substantial compliance with the UCCJEA.
  • Under the UCCJEA, a court’s subject matter jurisdiction to make an initial custody determination is heavily dependent on the question of whether the court is of a state that is the child’s “home state.”
  • “Home state” is defined under the UCCJEA as “the state in which a child lived with a parent or person acting as a parent for at least ___ months immediately before the commencement of a child custody proceeding…a period of temporary absence of any of the mentioned persons is part of that period.”
  • Here, Georgia is the only state that can qualify as the “home state” of the child.  Accordingly, the trial court had jurisdiction to make the initial custody determination under the UCCJEA, and the Italian Court did not.
  • Mother contends that the trial court still could not have exercised jurisdiction because although Italy had not adopted the UCCJEA, the expression of jurisdiction by the UCCJEA was “in substantial conformity with” the UCCJEA.
  • The Supreme Court determined that is not the case.  Specifically, the Italian Court undertook no analysis of the home state of the child, or any other factors that could be considered a substitute for such.   Thus, under the UCCJEA, the jurisdictional inquiry entered into by the Italian Court must be deemed insufficient.
  • The Supreme Court further explained that if it were to find the jurisdictional finding by the Italian Court sufficient under the UCCJEA, it would render meaningless the statutory requirement that a court of this state defer to the court of another state only if that court had “jurisdiction substantially in conformity” with the UCCJEA.  Such a finding would also allow the kind of forum shopping the UCCJEA seeks to prevent.

Attorneys:

Trial Court:

Clarke Superior Court; Judge Lawton E. Stephens