Laura Desjardins v. Donald Charity (2011)

MEMORANDUM OF DECISION

A review of the record reveals that the parties, never married, are the parents of two minor children, Leo Charity born December 23, 2001 and Freda Charity born March 25, 2005.   The applicant, Laura Desjardins (hereinafter “mother”) filed an ex-parte application for a restraining order against Donald Charity (hereinafter “father”) and a request for temporary custody of the minor children in the Norwich–New London judicial district of Connecticut on March 16, 2011 pursuant to Connecticut general statutes section 46b–15 which was granted.   On March 7, 2011, the mother filed a separate application for custody in the Norwich–New London judicial district of Connecticut.

The father had filed a petition for custody for each of the minor children on or about February 15, 2011 in the Charles City, Virginia family court, case number JJ–00–2157–01–00 and case number JJ–00–2158–01–00.

A hearing was held before the undersigned on April 4, 2011.   The mother, with counsel and the father appeared and both parties testified.

The court finds, by a fair preponderance of the evidence the following facts:

1. The parties are the parents of two minor children, Leo Charity born December 23, 2001 and Freda Charity born March 25, 2005.

2. The parties, never married, lived together in Virginia from sometime in 2007 until January 31, 2011.

3. On or about January 31, 2011, the mother left Virginia with the two children and arrived in New London Connecticut on February 15, 2011.

4. The mother, alleging domestic violence and abuse on the part of the father, applied for a restraining order and request for temporary custody of the minor children in the Norwich–New London judicial district of Connecticut on March 16, 2011 pursuant to Connecticut general statutes section 46b–15 which was granted.

5. Connecticut general statutes section 46b–15 provides in relevant part:

Any family or household member as defined in section 46b–38a who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member or person in, or has recently been in, a dating relationship who has been subjected to a continuous threat of present physical pain or physical injury by the other person in such relationship may make an application to the Superior Court for relief under this section.

6. On March 7, 2011, the mother filed a separate application for custody in the Norwich–New London judicial district of Connecticut.

7. The father had filed a petition for custody for each of the minor children on or about February 15, 2011 in the Charles City, Virginia family court, case number JJ–00–2157–01–00 and case number JJ–00–2158–01–00.

8. The mother claims that this court can exercise temporary emergency jurisdiction pursuant to Connecticut general statutes section 46b–115n.

9. The parties acknowledged that there are pending in Virginia, custody cases involving these parties which have a hearing scheduled for April 21, 2011.

10. The parties agreed, before the undersigned, in open court, that the mother may have temporary custody of the children in Connecticut pending a resolution between the Virginia court and the Connecticut court as to which state should exercise jurisdiction.

11. This court attempted, on three separate occasions, to communicate with Judge Atley, the Virginia judge, for the purpose of scheduling a telephonic hearing regarding jurisdiction.   These efforts have been unsuccessful.

LEGAL DISCUSSION

Connecticut general statutes section 46b–115p provides that:

(a) Except as otherwise provided in section 46b–115n, if at the time of the commencement of the proceeding in this state a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction pursuant to a provision substantially similar to section 46b–115k, 46b–115l or 46b–115m, a court of this state shall not exercise jurisdiction.   A court of this state may exercise jurisdiction if the proceeding in the other state has been terminated or is stayed by the court of the other state because such court has determined pursuant to a provision substantially similar to section 46b–115q, that a court in this state is a more convenient forum.

(b) Except as otherwise provided in section 46b–115n, the court shall, after review of relevant information provided to it, determine whether a child custody proceeding has been commenced in another state.   If such proceeding has been commenced, the court in this state shall take appropriate action to communicate with the other court and to resolve which court shall have jurisdiction.   If the court of this state determines that the court of the other state has jurisdiction pursuant to a provision substantially similar to section 46b–115k, 46b–115l or 46b–115m, the court of this state shall stay its proceeding while the court of the other state determines whether the court of this state is the more appropriate forum.   If the court of the other state determines that the court of this state is not a more appropriate forum, the court of this state shall dismiss the proceeding.

(c) Except as otherwise provided in section 46b–115n, the court, in a proceeding to modify a child custody determination, shall after review of relevant information provided to it, determine whether a proceeding to enforce the determination has been commenced in another state.   If the court determines that such enforcement proceeding has commenced, the court may (1) stay the proceeding for modification pending the entry of an order of the court of the other state enforcing, staying, denying or dismissing the proceeding for enforcement;  (2) enjoin the parties from continuing with the proceeding for enforcement;  or (3) proceed with the modification under conditions it considers appropriate.

It is this court's obligation to determine under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) that it has jurisdiction to make an initial determination as to the children's custody.  Scott v. Somers, 97 Conn.App. 46 (2006).   This duty implicates the subject matter jurisdiction of the court and hence must be raised and determined by the court on its own motion if not formally raised by the parties.   Absent a statutory basis for such exercise of jurisdiction, the parties cannot by agreement confer jurisdiction upon the court.  Muller v. Muller, 43 Conn.App. 327 (1996).

Since it does not appear that the Virginia proceedings have been terminated or stayed and since this court is unable to determine that the Virginia court will not exercise jurisdiction, the proceedings in the Connecticut court must be stayed while the Virginia court determines whether or not it is the more appropriate forum.   If the Virginia court determines that Connecticut is not the more appropriate forum, this court is bound to dismiss this proceeding.

For the foregoing reasons, the orders of custody and jurisdiction in Connecticut, involving the children at issue in this matter are stayed.

Shluger, J.

Shluger, Kenneth L., J.