Modifying a Child Custody Decree Originally Entered in Another State: the Supreme Court of Nebraska Explains the Nebraska Child Custody Jurisdiction Act in Hamilton v. Foster

• Publication year: 2022

35 Creighton L. Rev. 239. MODIFYING A CHILD CUSTODY DECREE ORIGINALLY ENTERED IN ANOTHER STATE: THE SUPREME COURT OF NEBRASKA EXPLAINS THE NEBRASKA CHILD CUSTODY JURISDICTION ACT IN HAMILTON V. FOSTER

Creighton Law Review

Vol. 35

Only about 55 percent of American children live with both biological parents.(fn1)

INTRODUCTION

The best interest of the child is the court system's paramount consideration in deciding over one million custody disputes each year.(fn2) The best interest of the child test seeks to meet the child's interests in acquiring a protective and stable home and future for the child.(fn3) Generally, parents have the responsibility of caring for and protecting their children.(fn4) However, when parents ask the court to make a custody determination, the judge is allowed great discretion in granting custody under the best interest standard.(fn5) The court's interest in the custody of a child does not end upon the custody determination.(fn6) Custody disputes are devastating to children, and such disputes create even more problems when the contesting parties cross state lines.(fn7) These additional problems appearing in multistate custody battles include parental child snatching, forum shopping, and repeated custody litigation.(fn8) One other problem that arises with multistate custody disputes relates to personal jurisdiction.(fn9) Because child custody orders are not deemed "final" judgments, they are subject to modification until the time the child reaches the age of maturity.(fn10) When families movefrom state to state, the state that entered the original decree (the "issuing state") may no longer have personal jurisdiction over the parties.(fn11) However, child custody proceedings are considered "status" determinations,(fn12) which do not usually require a court to have personal jurisdiction over the parties.(fn13)

When more than one state is involved in a custody dispute, each state claims a genuine interest in reaching a solution to the dispute.(fn14) Courts of various states must then engage in jurisdictional struggles to determine which state is the most appropriate state to make the custody decision.(fn15) In the interim, the children, who are already facing the difficulties of custody battles, must wait.(fn16) In some situations, the child must repeatedly face extremely harmful custody litigation.(fn17) In response to the issues that arise with interstate custody disputes, the National Conference of Commissioners on Uniform State Laws joined the American Bar Association to approve the Uniform Child Custody Jurisdiction Act ("UCCJA")(fn18) in 1968.(fn19) All fifty states and the District of Columbia have since adopted the UCCJA.(fn20)

Recently, in Hamilton v. Foster,(fn21) the Supreme Court of Nebraska examined Nebraska's jurisdiction to modify a custody decree originally entered in Colorado.(fn22) The Denver County District Court in Denver, Colorado placed permanent custody of Elizabeth A. Hamilton, Ariel M. Rettig, and Meagan K. Rettig (collectively "the Children") with their maternal grandfather, Thomas E. Hamilton, and his girlfriend, Sharon M. Foster.(fn23) Hamilton, Foster, and the three Children moved to Omaha, Nebraska in 1997.(fn24) Hamilton and Foster later separated in July 1999.(fn25) Following the separation, Hamilton filed a pe-tition for sole custody of the Children, which the Douglas County District Court dismissed for failure to state a cause of action.(fn26) The Supreme Court of Nebraska reversed the district court decision, finding that the Nebraska Child Custody Jurisdiction Act ("NCCJA")(fn27) allowed Nebraska to modify the original decree.(fn28) Specifically, the court found that Colorado had lost jurisdiction over the custody of the three Children and Nebraska met the jurisdictional requirements to modify custody.(fn29)

This Note will first examine the facts and holding of Hamilton.(fn30) This Note will then detail the relevant provisions of the NCCJA (the statute courts must follow when determining if the State of Nebraska has authority to decide or modify custody proceedings).(fn31) Next, this Note will review prior caselaw illustrating when an issuing state has retained or lost continuing exclusive jurisdiction(fn32) over custody proceedings.(fn33) This Note will then analyze the holding in Hamilton.(fn34) Specifically, this Note will show how the Supreme Court of Nebraska properly applied the NCCJA to the Hamilton custody dispute by making a two-step determination: (1) that the issuing state lost jurisdiction over the custody decree, and (2) that Nebraska had obtained jurisdiction to modify the decree.(fn35) This Note will conclude by commending the Supreme Court of Nebraska, because the court provided a specific framework for analyzing the NCCJA and also provided guidance for practitioners involved in future custody cases involving custody decrees originally entered by another state.(fn36)

FACTS AND HOLDING

On May 21, 1993, the Denver County District Court in Denver, Colorado entered an order regarding the custody of Elizabeth A. Hamilton, Ariel M. Rettig, and Meagan K. Rettig (collectively "the Children").(fn37) The district court awarded permanent custody of the Children to their maternal grandfather, Thomas E. Hamilton ("Hamil-ton"), and his girlfriend, Sharon M. Foster ("Foster").(fn38) Stephen and Wendy Rettig, the parents of the Children, were denied visitation but ordered to pay monthly child support of one hundred dollars and twenty-five dollars respectively.(fn39)

For more than fourteen years, Hamilton resided with Foster.(fn40) Although they were never married, the couple held themselves out to be husband and wife while residing in the States of Colorado, North Carolina, and Nebraska.(fn41) The Children resided with Hamilton and Foster for approximately ten of the fourteen years that Hamilton and Foster were together.(fn42) During this period, Hamilton and Foster provided a home, the necessities of life, support, and sustenance to the Children.(fn43) The Children referred to Hamilton as "grandpa" and to Foster as "grandma."(fn44)

In July 1999, after living in Omaha, Nebraska for over one year, Hamilton and Foster discontinued their relationship.(fn45) Hamilton moved with the Children out of the family home and into another residence in Omaha.(fn46) Foster also remained in Omaha.(fn47) Foster continued to visit the Children on a regular basis, but discontinued all financial support for the Children.(fn48)

On October 8, 1999, Hamilton filed a petition under the Nebraska Child Custody Jurisdiction Act ("NCCJA")(fn49) and the Uniform Interstate Family Support Act ("UIFSA")(fn50) in Douglas County District Court.(fn51) Hamilton sought an order of the district court awarding him sole custody of the Children.(fn52) In discussing the children's biological parents, Hamilton alleged that the Children had not had contact with their parents since 1994; furthermore, the court determined the parents had also not paid any child support.(fn53) The district court did notknow the location of either of the Children's biological parents; however, the court stated that Stephen Rettig resided in Denver, Colorado, and Wendy Rettig possibly resided in Las Vegas, Nevada.(fn54)

In addition to requesting sole custody, Hamilton requested that Foster help support the Children financially and be awarded reasonable visitation.(fn55) Foster demurred to Hamilton's petition, claiming that he failed to allege sufficient facts to support a claim against Foster.(fn56) The district court entered an order sustaining the demurrer on November 24, 1999, finding that the claim failed to state a cause of action.(fn57) The court further maintained that Hamilton could not amend his petition to state a cause of action, because no statutory authority obligated Foster to provide child support.(fn58) The court dismissed Hamilton's custody request for failure to state a cause of action under the NCCJA.(fn59)

Subsequently, Hamilton appealed the Douglas County District Court's decision and the Supreme Court of Nebraska accepted Hamilton's appeal using its power to control the docket of the appellate courts.(fn60) Hamilton argued on appeal that the lower court erred when it determined Hamilton had failed to state a cause of action pursuant to the NCCJA.(fn61) Therefore, Hamilton alleged the lower court erred in sustaining Foster's demurrer relating to that claim.(fn62)

Chief Justice John Hendry, writing for the Nebraska Supreme Court, affirmed the Douglas County District Court's order dismissing the child support portion of the case and reversed the district court's order dismissing the child custody portion of the case.(fn63) The court determined that the trial court had failed to address the issue of whetherthe Nebraska court had jurisdiction to modify the Colorado custody decree.(fn64) The court determined Hamilton had alleged sufficient facts to establish a cause of action to modify the custody order under the NCCJA.(fn65)

Pursuant to the NCCJA, the court established that the first question to decide before a custody order issued in another jurisdiction can be modified is whether the issuing state appears to have continuing exclusive jurisdiction.(fn66) The court determined that if the state that entered the initial custody decree (the "issuing state") lost all or almost all connection with the child, that state could lose continuing exclusive...