GARAY v. GARAY (2025)

Felicia Garay (“mother”) appeals an order of the Chatham County Superior Court, concluding that under OCGA § 19-9-61 of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), it lacked jurisdiction to make an initial child custody determination in a divorce action pending between mother and Jack Garay (“father”). We granted mother's application for interlocutory review and now affirm.

We review de novo the question of subject matter jurisdiction under the UCCJEA. See Delgado v. Combs, 314 Ga. App. 419, 425-426 (1), 724 S.E.2d 436 (2012). So viewed, the record shows that mother and father were married in 2016, and have two minor children born in 2017 and 2018. From July 2018 to June 15, 2023, the family lived together in Georgia until mother and father separated and father moved to South Carolina. In June 2023, just prior to the parties’ separation, mother “voluntarily placed temporary custody of the two children with [father's] mother” in Illinois, where the children lived until March 8, 2024, when they moved with father to South Carolina.¹ On March 20, 2024, father filed a verified complaint for divorce in Chatham County, stating that he subjected himself to the jurisdiction of this State, and requesting primary physical and joint legal custody of the children.

On November 14, 2024, the trial court held a hearing on the issue of the “home state of the children,” at which time it learned that father had relocated to Washington with the children in July 2024. In light of this new information, the trial court continued the hearing. In the meantime, mother filed a verified answer and counterclaim, and a motion for relief, seeking, among other things, access to the children to communicate with them, which she alleged she had been deprived of for several months; primary physical custody of the children; child support; and the reopening of discovery. At a second hearing on January 15, 2025,² the parties agreed to brief the question of whether the trial court had subject matter jurisdiction over custody under the UCCJEA. In her brief, mother argued that Georgia had jurisdiction because it was the home state of father until he filed this action; the children had lived in Georgia with both parents and attended school here; and their doctors were here. Father argued that Washington had jurisdiction because it was, by that time, the current “home state” of the children; the children had significant connections there; the children had not lived in Georgia since June 2023, when both parents agreed to place them in Illinois; and, the only significant connection they had to Georgia was that mother lived here.

The trial court issued an order determining that it lacked jurisdiction to make an initial custody determination under the UCCJEA and that “it ․ appear[ed] that Illinois” had subject matter jurisdiction as the “home state” because the paternal grandmother “had custody” of the children in Illinois for more than six months immediately prior to father filing the divorce action. The trial court further found as follows:

This [c]ourt recognizes that although Illinois would be the home state of the children under the guidelines of the UCCJEA, it is clearly an inconvenient forum now due to the children subsequently moving to South Carolina, and then to Washington. However, this Court does not have the authority to dictate that the Illinois courts declare themselves an inconvenient forum as no custody action has been filed there according to the parties.

[Father] has argued that Washington is now the home state of the children and has been since July 2024. However, this action was filed in March 2024, and subject matter jurisdiction under the UCCJEA does not just follow the children around the country while the initial action is still pending.

Although this [c]ourt is sympathetic to the parties and their desire to conclude the custody issues between them, Georgia is not the home state of the children in accordance with the analysis which must be followed under the UCCJEA.

The trial court concluded that “until Georgia can legally assume jurisdiction under OCGA § 19-9-61, the custody portion of the divorce is reserved” and then “declined” subject matter jurisdiction. This appeal followed.

1. In her sole enumeration of error, mother contends that, under the unique circumstances of this case, the trial court erred in declining to exercise subject matter jurisdiction over the issue of child custody.³ Mother asserts that the trial court should exercise jurisdiction because no other jurisdictions are competing; the “domicile of the children” never changed from Georgia; all the children's ties were within Georgia at the time the divorce action was filed; and it would be condoning father's “bad behavior” to bifurcate the custody issue from the divorce action. In mother's view, it is a “misinterpretation of the intent” of the UCCJEA to choose any other forum except Georgia.

Under the UCCJEA, a trial court's subject matter jurisdiction to make “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.’ ” (Citations and punctuation omitted.) Markle v. Dass, 300 Ga. 702, 703, 797 S.E.2d 868 (2017), citing OCGA § 19-9-61. Pursuant to OCGA § 19-9-61 (a), a court of this state has jurisdiction to make an initial child custody determination only if:

(1) This state is the home state[4] 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[5] 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 ․ 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 ․; or

(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3) of this subsection.

These bases for jurisdiction have been described as follows: home state jurisdiction, significant-connection jurisdiction, more appropriate forum jurisdiction, and no other state jurisdiction or the default provision. See Georgia Divorce, Alimony, and Child Custody, David Webster, § 27:4 (2025). See also In re Marriage of Marsalis, 338 S.W.3d 131, 135-138 (Tex. Ct. App. 2011).⁶ To determine whether Georgia has subject matter jurisdiction over custody in this case — and whether the trial court correctly declined jurisdiction — we must first examine paragraphs (1), (2), and (3) of OCGA § 19-9-61 (a). If these three paragraphs do not provide a basis for Georgia to exercise subject matter jurisdiction, we must then determine whether under paragraph (4), any other state would have jurisdiction under paragraphs (1), (2), or (3).

(i) OCGA § 19-9-61 (a) (1). The divorce proceeding was commenced on March 20, 2024. Thus, the operative period under this paragraph is September 20, 2023 to March 20, 2024. During this period, the children did not live in Georgia, and although they lived in Illinois with their paternal grandmother for nine months, they did not live with a parent or “person acting as a parent” because the paternal grandmother did not have legal custody. Indeed, there is no state in which the children lived with a parent or “person acting as a parent” for an uninterrupted six-month period since before June, 2023, when they went to live with their paternal grandmother. Moreover, while the UCCJEA allows for an interruption in the six month consecutive time period if such an interruption is temporary, see OCGA § 19-9-41 (7) (defining “[h]ome state”), the children's indefinite stay in Illinois was not temporary. Cf. Kogel v. Kogel, 337 Ga. App. 137, 141-142, 786 S.E.2d 518 (2016) (noting that the UCCJEA does not define “temporary absence,” and concluding that mother and child's return to Texas for three months before the commencement of the divorce proceeding did not amount to a temporary absence). Because the children had not lived in Georgia with either parent for at least six consecutive months immediately before commencement of the divorce action, Georgia is not the “home state” of the children under OCGA § 19-9-61 (a) (1).⁷

(ii) OCGA § 19-9-61 (a) (2). Georgia also lacks jurisdiction under subsection (a) (2), which requires a significant connection between the children and Georgia. While mother has a significant connection to Georgia, the children have not lived in the State for over two years; thus, it was correct for the trial court to conclude that there is not “substantial evidence” available concerning the children in Georgia.⁸

(iii) OCGA § 19-9-61 (a) (3). As for subsection (a) (3), there is nothing in the record reflecting that any state that may have jurisdiction under subsections (a) (1) or (2) has declined to exercise jurisdiction on the ground that Georgia is the more appropriate forum.

(iv) OCGA § 19-9-61 (a) (4). Because Georgia lacks subject matter jurisdiction under the first three paragraphs of OCGA § 19-9-61 (a), a court of this State may issue an initial custody determination only if “[n]o court of any other state would have jurisdiction under [those three paragraphs].” OCGA § 19-9-61 (a) (4). Under the facts of this case, we cannot say that Washington, where the children have been living with father since July 2024, would not have jurisdiction under this provision. It follows that the trial court correctly declined subject matter jurisdiction over the custody portion of the parties’ divorce action and “reserved” the custody portion of the divorce.

Moreover, although not explicitly enumerated as error by mother, our above analysis renders questionable the trial court's observation about Illinois. As set forth above, in its order, the trial court “recognize[d]” that “Illinois would be the home state of the children under the guidelines of [the] UCCJEA,” but that it is “clearly an inconvenient forum now due to the children subsequently moving to South Carlina, and then to Washington. However, this [c]ourt does not have the authority to dictate that the Illinois courts declare themselves an inconvenient forum as no custody action has been filed there according to the parties.”

2. Mother contends that the trial court should exercise subject matter jurisdiction because the domicile of the children never changed. In support of this contention, mother maintains that one or more parent was in Georgia at the commencement of the proceeding and had resided in Georgia during the nine months the children were living “temporarily” with their paternal grandmother (June 2023 — March 2024, when the divorce action was filed). But, as the trial court rightly concluded, a “ ‘temporary absence’ from the state of legal residence of a parent is not the analysis to be used.” As our Supreme Court noted in Markle,

“home state” is not synonymous with the residence or domicile of the parent having legal custody. 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. If the General Assembly had intended that jurisdiction be based upon legal residence or domicile, it would undoubtedly have used these technical terms.

(Citation and punctuation omitted.) 300 Ga. at 705-706, 797 S.E.2d 868. Here, the children had not lived in Georgia since June 2023. And, despite mother's assertions that only a Georgia court can be trusted to make a fair custody determination involving a Georgia parent, as Markle indicates, the residence of a parent(s) is not a factor to be considered under the UCCJEA. See also OCGA § 19-9-61 (c) (“[p]hysical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination”). Moreover, to the extent mother's argument can be interpreted as arguing that the children remained tied to Georgia during the months immediately before father filed his petition for divorce when they lived in Illinois and South Carolina, we cannot say based on the record before us that the trial court should have found that there remains substantial evidence in Georgia concerning the children's care, protection, training, and personal relationships. See OCGA § 19-9-61 (a) (2).

Mother also attempts to distinguish this case from others because it is a pending divorce and argues that the trial court failed to consider this procedural posture. But that argument is unavailing because the UCCJEA defines “[c]hild custody proceeding” as “a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue[,] includ[ing] a proceeding for divorce[.]” OCGA § 19-9-41 (4). See also Markle, 300 Ga. at 703, n.4, 797 S.E.2d 868 (rejecting claim that UCCJEA did not apply because custody was sought through a petition for habeas corpus).

Lastly, mother contends that the spirit and intent of the UCCJEA mandates that subject matter jurisdiction “should be established at the time” father's fraudulent and deceitful conduct manifested itself, i.e., June 15, 2023, when he abandoned the marriage, and that father's behavior should not be rewarded. Even if we were to accept mother's characterization of father's behavior as accurate, a Georgia court may not create subject matter jurisdiction where none exists and ignore the requirements of the UCCJEA; indeed, the UCCJEA does not provide for jurisdiction based upon a stipulation, consent, waiver or estoppel. See, e.g., In the Interest of D. H., 372 Ga. App. 765, 767, 768 (2) (a), 906 S.E.2d 774 (2024).

Judgment affirmed.

FOOTNOTES

1.   In a brief filed below, father stated that the parties executed a written agreement, arranging for the paternal grandmother “to take custody of the children and relocate them to the State of Illinois, with [the] contract ending date in 2026.”

2.   There are no hearing transcripts included in the record on appeal, and mother's notice of appeal does not designate any for inclusion.

3.   Father has not filed a brief.

4.   The term “home state” is defined 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.”OCGA § 19-9-41 (7).

5.   “Person acting as a parent” is defined asa person, other than a parent, who: (A) Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and (B) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.(Emphasis supplied.) OCGA § 19-9-41 (13).

6.   We may look to other jurisdictions when applying and construing the provisions of the UCCJEA. See Kogel v. Kogel, 337 Ga. App. 137, 139-140, 786 S.E.2d 518 (2016).

7.   While the children and father were living in South Carolina on the date of the commencement of the proceeding, they had not lived there for at least six months prior, and only lived there for three months before moving to Washington.

8.   By its express terms, the UCCJEA allows for the consideration of paragraphs (2), (3), and (4) of OCGA § 19-9-61 (a) only if no state qualifies as the child's home state. As such, it creates a hierarchy or tiered approach to jurisdiction, with the “home state” of the child taking precedence over the other three bases. See Georgia Divorce, Alimony, and Child Custody, David Webster, § 27:4 (2025). See also In re K. R., 229 W.Va. 733, 735 S.E.2d 882, 889 (III) (A) (2012) (“[t]hese jurisdictional bases do not operate alternatively to each other, but rather, in order of priority — reaching the next basis of jurisdiction only if the preceding basis does not resolve the jurisdictional issue”). Cf. Steen-Jorgensen v. Huff, 352 Ga. App. 727, 729 (1), 835 S.E.2d 707 (2019) (discussing that the three jurisdictional provisions of Georgia's Uniform Adult Guardianship and Conservatorship Proceedings Jurisdiction Act are listed in order of priority with “home state” being the first tier). This hierarchical approach helps to achieve one of the UCCJEA's main purposes: combating parental forum shopping. See Bellew v. Larese, 288 Ga. 495, 499, 706 S.E.2d 78 (2011). Thus, “the date of the commencement of the proceeding” is the reference point from which to determine a child's home state for the purpose of determining jurisdiction and is not applicable to the other three jurisdictional bases.

Brown, Chief Judge.

Barnes, P. J., and Watkins, J., concur.