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Markle v. Dass

Supreme Court of Georgia

March 6, 2017

MARKLE
v.
DASS.

          HINES, Chief Justice.

         Donald T. Markle ("Markle") appeals from the grant of a writ of habeas corpus in this child custody case. For the reasons that follow, we vacate the superior court's order.

         While residing in Georgia in 2010, Katrina Joy Dass ("Dass") gave birth to the minor child who is at the center of this controversy; Dass and Markle, the child's father, were never married, and prior to 2016, Markle did not attempt to legitimate the child.[1] Sometime after the child's birth, Markle relocated to New Mexico. The child lived in Georgia with Dass from birth until January 2011; he then lived with both Markle and Dass in New Mexico until August 2012. Dass returned to Georgia, and the child lived in Georgia with her from August 2012 until July 2015, spending the summers of 2013 and 2014 in New Mexico with Markle. In July 2015, the child returned to New Mexico, and it is undisputed that between late July 2015 and Dass's February 16, 2016 filing of her petition for a writ of habeas corpus, the child lived continuously in New Mexico with Markle, and that Dass did not live with them in New Mexico.

         On January 26, 2016, Markle filed in the Second Judicial District Court, County of Bernillo, New Mexico, a verified petition seeking to determine paternity, custody, and child support for the minor child, naming Dass as respondent. The New Mexico court entered a temporary order providing, inter alia, that the child not be removed from New Mexico without the written consent of the other party. Dass requested that Markle return the child to Georgia but Markle declined. On February 16, 2016, Dass filed in the Superior Court of Cobb County a "Petition for Writ of Habeas Corpus and Emergency Motion for Return of Child." After a hearing, the superior court entered a writ of habeas corpus on February 24, 2016, finding that Georgia was the "home state" of the child within the meaning of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), OCGA § 19-9-40 et seq., and ordering that the child be returned to Dass.

         Under the UCCJEA, the superior court's subject matter jurisdiction to make such "an initial child custody determination is heavily dependent on the question of whether the court is of a state that is the child's 'home state.' See OCGA § 19-9-61.[2] [Cit.]" Bellew v. Larese, 288 Ga. 495, 498 (796 S.E.2d 78) (2011). See also Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 590 (1) (690 S.E.2d 397) (2010). The superior court could properly determine that it had jurisdiction under OCGA § 19-9-61 (a) (1)[3] only if Georgia was

the home state of the child on the date of the commencement of the [habeas corpus] 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.

OCGA § 19-9-61 (a) (1).[4]

         It is uncontroverted that on the date of Dass's February 16, 2016 filing of the petition for a writ of habeas corpus, and for the six months prior to it, the child lived with Markle in New Mexico, and not in Georgia. The trial court nonetheless found that the child's "residence is and has been in the State of Georgia since August 2012, " determined that the child's presence in New Mexico was temporary and did not affect the child's residential status in Georgia, and declared Georgia to be the child's "home state." But, the UCCJEA defines "home state" as

the state in which a child 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. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

OCGA § 19-9-41(7).[5] And, as noted, the child lived in New Mexico with Markle for six months preceding Dass's filing of the petition for a writ of habeas corpus.[6]

         It appears that the superior court declared Georgia to be the "home state" of the child based upon its finding that, prior to August 2015, the child's residence - and the custodial mother's residence - was in Georgia, and that the court then determined that the child's presence in New Mexico was a "temporary absence" from that residence. But, that is not an analysis that the statutory definition of "home state" permits. As has been noted,

"home state" is not synonymous with the "residence or domicile of the parent having legal custody." [Cit.] Rather, the term "lived" in the definition of "home state" refers to the state where the child is physically present "without regard to legal residence." [Cits.] "If the General Assembly had intended that jurisdiction be based upon legal residence or domicile, it would undoubtedly have used these technical terms." [Cit.]

Slay v. Calhoun, 332 Ga.App. 335, 341 (2) (772 S.E.2d 425) (2015).

         By its plain language, OCGA § 19-9-41 (7) defines "home state" in terms of current presence, and declares a time frame for that presence to have the necessary legal effect, i.e., six months, or the child's life, if the child is less than six months of age. It is that six-month period that OCGA § 19-9-41 (7) refers to when it speaks of a temporary absence as "part of the period." OCGA § 19-9-41 (7) looks to the present, and then backward six months; it does not look to legal residence or domicile at some point in the past, and then look forward. As noted, it is uncontroverted that the child was never absent from New Mexico during the six months prior to Dass's filing of the petition for a writ of habeas corpus. Thus, it is New Mexico, not Georgia, that meets the definition of "home state" under OCGA § 19-9-41 (7), and the Georgia court could not have jurisdiction under OCGA § 19-9-61 (a) (1) unless it had been the child's "home state" within six months before Dass filed her petition for a writ of habeas corpus, which was not the case.

         Georgia adopted the UCCJEA in 2001 in part to reduce competition among jurisdictions. See Bellew, supra at 496; Delgado v. Combs, 314 Ga.App. 419, 424-425 (724 S.E.2d 436) (2012). A belief that may underlie such competition is that only the courts of this State can be trusted to make a fair custody determination involving a Georgia parent when the other parent is a resident of the forum state. But, New Mexico has adopted its own version of the UCCJEA, see N.M. Stat. Ann. 1978, §§ 40-10A-101 to -403 (2001), including provisions for a court therein to decline to exercise its jurisdiction upon a determination that another state is a more appropriate forum, see N.M. Stat. Ann. 1978, §§ 40-10A-207, or that a person seeking to invoke that court's jurisdiction has engaged in unjustifiable conduct. See N.M. Stat. Ann. 1978, §§ 40-10A-208.[7] Nothing precludes Dass from seeking such a ruling from the New Mexico court, and nothing indicates that, were a custody determination to be made by the New Mexico court, it would be unfair to her.[8]

         As the superior court did not have subject matter jurisdiction under OCGA § 19-9-61 (a) (1), its order granting the writ of habeas corpus must be vacated. See Davis v. Harpagon ...


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