Can Parents Contractually Select the Forum for A Custody Dispute?

Where a custody dispute will be litigated can be a critical concern when voluntarily entering into an agreement regarding custody of children. Child custody issues can be further complicated when dealing with laws across state or country lines.

UCCJEA

“The National Conference of Commissioners on Uniform State Laws promulgated the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] in 1997 ‘to deal with the problems of competing jurisdictions entering conflicting interstate child custody orders, forum shopping, and the drawn out and complex child custody legal proceedings often encountered where multiple states are involved.’” Friedman v. Eighth Judicial District Court, 264 P.3d 1161, 1165 (Nev. 2011) (quoting In re Custody of A.C., 200 P.3d 689, 691 (Wash. 2009)). In the U.S., the UCCJEA (“the Act”) has been adopted by 49 states, the District of Columbia, Guam, and the U.S. Virgin Islands, but not by Massachusetts or Puerto Rico.

Under the Act, once a U.S. state has issued an initial child custody order, it will retain exclusive and continuing jurisdiction over future custody disputes so long as one parent continues to live there.[1] No other state has the authority to act and the original court’s authority does not end until one of two things happens: (1) the original court finds that the child and both parents have moved out of the state, and, it no longer has subject matter jurisdiction, or (2) the original court determines that it is an inconvenient forum and a court of another state or country is a more appropriate forum   This issue can be raised by either party, the original court, or the court of another state.  However, the decision to decline or relinquish jurisdiction must be made by the original court.[2]

Pursuant to the Act, eight factors apply when considering an inconvenient forum motion.  One factor is whether any agreement of the parties exists as to which state should assume jurisdiction. Other factors are: whether domestic violence issues exist; the length of time the child has resided outside the state, distance between possible courts, the parties’ relative financial circumstances, the nature and location of the evidence required to resolve the pending litigation, the ability of each state’s court to decide the issues expeditiously and the procedures necessary to present the evidence, and the court’s familiarity with the pending litigation’s facts and issues.  UCJEEA §207(b).

If the original court decides it is an inconvenient forum, it will stay the proceedings so long as another state promptly commences a custody proceeding.

Hogan v. McAndrew

Is a marital settlement agreement’s negotiated forum-selection clause enough to select jurisdiction?

A forum-selection clause was considered by the Rhode Island Supreme Court in the matter of Hogan v. McAndrew, 2016 WL 556297 (Feb. 12, 2016)  In Hogan, Father and Mother were dual citizens of the United States and the Republic of Ireland. The parties divorced in 2008. In accordance with their property settlement agreement, they share joint custody of three children, and Mother has physical placement. The parties agreed that Mother could return to Ireland with the children.  They stipulated that any future custody disputes would “remain under the jurisdiction of the [Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A], [the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), G.L. 1956 chapter 14.1 of title 15,] and the Rhode Island Family Court.” (Hogan at *p. 2)

The children stayed with Mother in Ireland and visited Father in Rhode Island each summer. Father continued to reside in Rhode Island and, in 2014, filed motions in the Rhode Island Family Court, including an ex parte emergency motion to modify custody and placement. The Court granted the ex parte order. Mother moved to vacate the order and sought to dismiss the action asserting Rhode Island lacked subject matter jurisdiction as the children had resided in Ireland continuously for more than five years.

The Rhode Island Family Court heard the parties on the issue of jurisdiction.  Excepting yearly visits with their father, the children resided in Ireland continuously with Mother from January 2009 to July 2014 while Father resided in Rhode Island.  Father spent multiple weeks with the children each year, with most of this time spent in Ireland.

Father testified that the parties’ agreement that Rhode Island maintain jurisdiction was “vital” to his decision to assent to the children’s relocation to Ireland.  He further testified that “without it” he would “never have agreed to let them go.

After hearing, the Court issued a bench decision declaring that although Rhode Island retained exclusive, continuing jurisdiction pursuant to the UCCJEA, it declined to exercise jurisdiction on the ground of forum non conveniens, noting that Ireland was a more appropriate forum for the dispute to be heard.  The Court noted that a forum- selection clause is one of eight factors and reasoned that its inclusion in the property settlement agreement did not absolutely bind the Court, which must consider all of the factors set forth in the statute.

Father appealed and argued that the hearing justice abused her discretion by failing to afford proper weight to (1) the mutually agreed upon forum-selection clause set forth in the property settlement agreement and in the final judgment of divorce, and, (2) additional factors enumerated under the UCCJEA.

Rhode Island’s highest court vacated the lower court’s decision, holding that the hearing justice abused her discretion by declining jurisdiction on the ground of forum non conveniens.  The Rhode Island Supreme Court explained that before the Family Court, vested with exclusive, continuing jurisdiction over the child-custody dispute, declines jurisdiction on the grounds of inconvenient forum, it must engage in a two-part inquiry.  The Family Court justice must conclude both that the court “is an inconvenient forum under the circumstances and that a court of another state [or a foreign tribunal] is a more appropriate forum.” R.I. Gen. Laws §15-14.1-19(a); See UCCJEA §207.  Before the Family Court can decide that Rhode Island is an inconvenient forum, it must address whether it would be “appropriate for a court of another state to exercise jurisdiction.”  This determination is made by considering all relevant factors, including the eight factors enumerated in the UCCJEA.  Then, if the court concludes based on the evidence that a more appropriate forum exists, the court proceeds to the second step of the analysis and considers whether it would be an inconvenient forum under the circumstances.

The Rhode Island Supreme Court previously addressed the role of forum-selection clauses under the UCCJEA in the case of Sidell v. Sidell, 18 A.3d 499, 504-08 (R.I. 2011).  In Sidell, the defendant father and former resident of Rhode Island filed post-divorce motions regarding child-custody and support orders issued by the Rhode Island Family Court.  At the time he filed his motions neither the parents nor the child resided in Rhode Island.  Defendant father argued that the Rhode Island Family Court was vested with jurisdiction because the parties had stipulated in their marital settlement agreement that Rhode Island would retain exclusive jurisdiction over the matter.  However since none of the parties resided in Rhode Island, the Court determined that Rhode Island courts lacked exclusive continuing jurisdiction under R.I. Gen. Laws § 15-14.1-14(a)(2).  Sidell at 508.The Sidell Court concluded a forum-selection clause does not confer a court with subject matter jurisdiction when such jurisdiction is otherwise absent. Id.

However, in Hogan, the Rhode Island Supreme Court noted there are situations where a court is vested with subject matter jurisdiction and “an enforceable forum-selection clause…settles the proper venue for the cause and prevents ‘a party that has agreed to be bound… [from…assert[ing] forum non conveniens as a ground for dismissing a suit brought in the chosen forum.’” Id at 507 (quoting American Biophysics Corp. v. Dubois Marine Specialties, 411 F.Supp. 2d 61, 62 (D.R.I. 2006)).

In vacating the Family Court’s decision in Hogan, the Supreme Court, noted that the trial justice overlooked Father’s testimony that the forum-selection clause had been a predominant factor in his agreement to allow his children to move to Ireland with their mother and that the parties had entered into the agreement in anticipation of the relocation.  The Supreme Court also noted that the trial justice failed to address the high value that is conferred on judgments by consent.  Further, based on the dearth of information available, the Supreme Court concluded that the hearing justice improperly determined that the seventh factor – “the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence” weighed equally in favour of Ireland and Rhode Island. R.I. Gen. Laws §15-14.1-19(b)(7); UCCJEEA §207(b).

The Rhode Island Supreme Court remanded the matter back to the trial court, with the unstated implication that the trial court will retain jurisdiction.

OTHER CASES –FORUM-SELECTION CLAUSE

In Friedman v. Eighth Judicial Dist. Court of State, ex. Rel, 127 Nev. 842, 844 (2011), the Nevada Supreme Court declined to exercise jurisdiction over an interstate custody dispute in favour of California.  In Friedman, the parties had stipulated in their divorce decree that Nevada would have exclusive jurisdiction over future child custody disputes.  When the dispute arose, both parties and their children had moved to California.  The Court concluded the parties’ agreement to confer jurisdiction on a court that otherwise would not have jurisdiction was ineffective. Id. at 850.

In Horgan v. Romans, 366 Ill.App.3d 180 (2006), the Appellate Court of Illinois, First District, Fourth Division, declined jurisdiction despite the parties’ forum-selection agreement and reasoned to allow such an agreement to trump the other factors to be balanced under  the UCCJEA would contradict the statutory language of section 207 of the Act. Id at 185.

In S.K.C. v. J.L.C., 94 A.3d 401, 418 (Pa. 2014), a Pennsylvania Superior Court held that a forum-selection clause may not be considered when determining whether a court retains exclusive, continuing subject matter jurisdiction. Id.

CONCLUSION

A forum-selection clause and the circumstances surrounding its inclusion in a marital settlement agreement are among the factors to be considered when determining which of two competing forums is more appropriate and whether one is inconvenient relative to a child custody determination.  Although some courts have afforded what appears to be greater weight to such agreements, forum-selection agreements alone are not dispositive and must be weighed against  other factors and circumstances when the dispute arises.

 

[1] Section 105(a) of the UCCJEA provides that a foreign country will be treated as if it is a state of the United States for the purposes of applying Articles I (cooperation principles) and II (jurisdiction provisions) of the UCCJEA.

[2] Exceptions in emergency situations apply and provide for temporary custody orders.

 

Kristin Barkett Pettey

Kristin Barkett Pettey

Shareholder, Co-Chair of the Healthcare Group at Roberts, Carroll, Feldstein & Peirce

Email: Kpettey@rcfp.com
Tel: +1 401 521 7000

Kristin has over 18 years of civil litigation experience. She has successfully represented clients in state and federal courts in Rhode Island and Massachusetts and has tried numerous jury and bench trials, with several favourable verdicts. In addition to her courtroom practice, Kristin has experience with alternative dispute resolution, including mediation. Prior to joining Roberts, Carroll, Feldstein & Peirce, Kristin managed her own law office and handled a wide variety of litigation and transactional matters, specialising in domestic relations.

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About Kristin Barkett Pettey

Email: Kpettey@rcfp.com
Tel: +1 401 521 7000
Kristin has over 18 years of civil litigation experience. She has successfully represented clients in state and federal courts in Rhode Island and Massachusetts and has tried numerous jury and bench trials, with several favourable verdicts. In addition to her courtroom practice, Kristin has experience with alternative dispute resolution, including mediation. Prior to joining Roberts, Carroll, Feldstein & Peirce, Kristin managed her own law office and handled a wide variety of litigation and transactional matters, specialising in domestic relations.