§ 46.08 WHEN A COURT MAY DECLINE JURISDICTION

• Jurisdiction: Washington

§ 46.08 WHEN A COURT MAY DECLINE JURISDICTION

Three different sections of Chapter 26.27 RCW address the question of whether a court can or should decline to exercise jurisdiction. In some instances, the prohibitions against the exercise of jurisdiction are so strong that they appear almost jurisdictional in nature, but in most instances the decision to decline jurisdiction is discretionary. This section will discuss the provisions of the UCCJEA that provide a reason to decline jurisdiction. Quite often more than one reason to decline is relevant, so the sections should be read together. The PKPA has an explicit prohibition against simultaneous proceedings, 28 U.S.C. § 1738A(g), but leaves the other questions of declination to state law. The duty of the parties to disclose information about other proceedings and the duty of the courts to communicate with each other is discussed more fully in § 46.09, below.

[1] Simultaneous Proceedings

If custody actions are filed in two states having concurrent jurisdiction, the UCCJEA and PKPA both give priority to the first action. 28 U.S.C. § 1738A(g); RCW 26.27.251. If the simultaneous proceedings involve an action to enforce a custody order in Washington and a proceeding to modify the order in another state, RCW 26.27.461 applies and requires the Washington court to immediately communicate with the modifying court. Since the passage of the UCCJEA and the PKPA, there are fewer opportunities for two states to have jurisdiction, because both statutes subordinate significant connection jurisdiction to home state priority in the initial decree setting. 28 U.S.C. § 1738A(c)(2)(A)-(B); RCW 26.27.201(b). The home state priority is discussed in § 46.05[2], above.

Each party has an initial and continuing duty to indicate whether other custody proceedings concerning the child have occurred or are pending in any state. See RCW 26.27.281. See also § 46.09[1], below. If the court has reason to believe proceedings may be pending in another state, it must stay its proceedings and communicate with the court of the other state. RCW 26.27.251(2), (3). The case of In re Marriage of Kastanas, 78 Wn. App. 193, 196-97, 896 P.2d 726 (1995), provides an example of communications between courts.

Both the PKPA and UCCJEA stress that the court second in time must yield if two courts with equal jurisdiction reach an impasse as to which will proceed, and both bar actions "commenced" during the pendency of another proceeding. 28 U.S.C. § 1738A(g); RCW 26.27.251. The UCCJEA defines commencement as "the filing of the first pleading in a proceeding." RCW 26.27.021(5). The Washington Court of Appeals, after referring to both the PKPA and the UCCJA, determined the time of "commencement" by referring to the procedural rules of the state that was first in time. In re Marriage of Payne, 79 Wn. App. 43, 49-50, 899 P.2d 1318 (1995). In the Payne case, a father filed an action in Virginia five and one-half months after the children moved to Washington. He did not serve the wife until nearly eight months after the move. The wife argued unsuccessfully that Washington was the home state of the children because the Virginia action was not "commenced" until she was served, and that occurred after the children had been in Washington for more than six months. The Payne court referred to Virginia procedural rules, which deemed an action to be commenced at the time of filing as long as the service was accomplished within one year. Id. at 50. Thus, the Virginia action was "pending" prior to the time the wife filed in...