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Gorelik v. Gorelik

Court of Appeals of Georgia, Second Division

June 26, 2018

GORELIK
v.
GORELIK

          MILLER, P. J., ANDREWS AND BETHEL, JJ.

          BETHEL, JUDGE

         Shortly after Esra and Vladi Gorelik moved to Georgia, Esra took their son to Turkey on vacation and did not return. Esra obtained temporary custody of the child from a Turkish court, and Vladi filed for custody in Georgia. After the Georgia court granted Vladi custody, Esra moved to dismiss the custody award, arguing that the Georgia trial court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). The Georgia trial court found that it had jurisdiction and denied the motion to dismiss. Esra now appeals, [1] and, after a thorough review, we find that the Turkish court had jurisdiction under the UCCJEA to enter the child custody order. We therefore reverse the judgment of the trial court.

         We review a question of subject-matter jurisdiction under the UCCJEA de novo. Kogel v. Kogel, 337 Ga.App. 137, 140 (786 S.E.2d 518) (2016). So viewed, the record shows that Esra and Vladi were married in Turkey in 2009. Esra was raised in Turkey and possesses a green card to live in the United States. Vladi is a naturalized United States citizen. After they were married, they moved to Moscow for Vladi's job, but Esra returned to Turkey in April 2012. In February 2013, their son was born in Turkey.

         In early 2014, the family moved together to Austria, but by the following year, Esra had returned to Turkey with the child. In May 2015, the family moved to New York, again for Vladi's job, and they remained there until July 2015. At that time, Esra and the child traveled to Turkey, where they stayed until October 2015. They then returned to New York and, in May 2016, the family moved to the State of Georgia. Although Esra and Vladi signed a year-long lease on a home, Esra never obtained a Georgia driver's license or registered to vote in Georgia, and the child had not yet been enrolled in school here.

         On June 12, 2016, Esra and the child traveled to Turkey, having lived in Georgia just 22 days. Esra filed for divorce and custody in Turkey on August 15, 2016, and a Turkish court awarded her custody. It is unclear whether Vladi received proper notice of the proceedings prior to the Turkish court's order.

         Vladi filed for custody in Georgia, and the trial court awarded Vladi custody in an emergency order. Thereafter, Esra moved to dismiss the order for lack of subject-matter jurisdiction in Georgia. Following a hearing, the trial court denied the motion to dismiss, finding that the child had no "home state;" the child had no significant connections to either Georgia or Turkey; no other state had jurisdiction; and the parties demonstrated their intent to make Georgia their home. In reaching this conclusion, the trial court noted that there was no evidence to establish how the Turkish court had reached its decision, and the trial court declined to consider whether the child had a significant connection to Turkey based on connections acquired after the child had moved there. This appeal followed.

         On appeal, Esra raises several related enumerations of error: (1) the trial court lacked jurisdiction under the UCCJEA because (a) the child had no significant connection to Georgia; (b) the trial court should have considered the child's significant connection to Turkey based on the connections that existed prior to the time the custody petition was filed; and (c) the trial court was authorized to consider those connections established after the custody petition was filed in Turkey; and (2) even if the trial court had jurisdiction, it should have declined to exercise jurisdiction because Turkey was the more convenient forum. We begin with the jurisdictional question.

         1. The UCCJEA sets forth the circumstances in which a court of this state has jurisdiction to make an initial custody determination. The purposes of the UCCJEA are to

(1) avoid jurisdictional competition, (2) promote cooperation between courts of different states, (3) discourage use of the interstate system to continue custodial controversies, (4) deter child abductions, (5) avoid relitigation of custody decisions in other states, and (6) facilitate enforcement of decrees by other states.

(Citation omitted.) Delgado v. Combs, 314 Ga.App. 419, 424 (1), n. 10 (724 S.E.2d 436) (2012). To these ends, OCGA § 19-9-61 (a) provides that 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 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;
(2) A court of another state does not have jurisdiction under paragraph (1) 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 Code Section 19-9-67 [setting out factors for inconvenient forum] or 19-9-68 [where jurisdiction is wrongfully obtained] and: (A) 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 (B) Substantial evidence is available in this state concerning the
child's care, protection, training, and personal relationships; (3) All courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine ...

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