Family Law Keyed to Weisberg

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Topic /161
Gilman v. Gilman

Citation. Gilman v. Gilman, 78 N.H. 4, 95 A. 657, 1915 N.H. LEXIS 2 (N.H. 1915)

Brief Fact Summary. Defendant moved with their child to Maryland. Plaintiff brought the child (his son) to Connecticut where he commenced a custody action. Defendant responded with a motion to dismiss based on lack of jurisdiction.

Synopsis of Rule of Law. Under the Uniform Child Custody Jurisdiction and Enforcement Act, the court cannot assert jurisdiction unless the child has resided with parent in the state for six months prior to the commencement of the action. The Act also permits an exercise of jurisdiction if another state does not have jurisdiction under the first part of the Act and the child and at least one parent have a significant connection with the state other than mere physical presence, and there is substantial evidence available in the state concerning the child’s care, protection, training and personal relationships.

Facts. The parties married in 1997 in Maryland, with the marriage producing a child, Austin Gilman. Austin was born in Connecticut. Around September of 1998 the parties moved to Maryland, where they lived into the year 2000. The parties moved back to Connecticut in June of 2000, where the child stayed until mid-July, when he went to visit his maternal grandmother in Maryland. On July 20, 2000 defendant mother returned to Maryland. According to defendant, she never promised to return to Connecticut. According to plaintiff, she indicated she was unsure of her feelings and was in Maryland temporarily. She stayed in Maryland with the child of this marriage and another child of hers. She lived with her mother and the child in Maryland from July 20, 2000 forward. There was contact between plaintiff and defendant during the time, and plaintiff traveled to Maryland to discuss the status of their relationship. The defendant commenced an action in Maryland circuit court, serving the
plaintiff in January 2001. The child came to Connecticut in November of 2000 to visit his father for three weeks. The father again took the child in December and brought him to Connecticut for another visit. The child was never returned to Maryland. Since such time the defendant has not been allowed to see the child, except under supervision of the plaintiff, by unilateral rule of the plaintiff.

Issue. Does the Connecticut court have jurisdiction to make an initial child custody determination?

Held. The court lacked jurisdiction over the matter pursuant to UCCJEA, therefore the defendant’s motion to dismiss is granted.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) of the Connecticut General Statutes allows a court of the State to assume jurisdiction to make an initial child custody determination if: 1) the state is the home state of the child on the date of the commencement of the child custody proceeding; 2) the state was the home state of the child within six months of the commencement of the child custody proceeding, the child was within six months of the commencement of the child custody proceeding, the child was absent from the state, and a parent or person acting as a parent continues to reside in the state. Home state means the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. A period of temporary absence is counted as part of the period.

The new act further states that this state has jurisdiction if: a court of another state does not have jurisdiction under subdivisions 1) or 2), the child and at least one parent have a significant connection with the state other than mere physical presence, and there is substantial evidence available in the state concerning the child’s care, protection, training and personal relationships.

Under the former statute the state could exercise jurisdiction if the state was the home state of the child at the time the proceeding was commenced or it was in the best interest of the child that the court exercise jurisdiction because the child and his parents had a significant connection to the state. The UCCJEA requires the home state determination be made as a condition precedent to an examination as to whether the child and parent have significant connections with the state. It also eliminates the analysis on the basis of the best interest of the child.

In the present case the court found that the minor child lived in the State of Maryland with a parent for six consecutive months immediately prior to the commencement of the proceeding. The fact that there may be some ambiguity as to where the defendant planned to reside does not change the condition. Therefore, Connecticut does not have jurisdiction and the motion to suppress is granted.

Discussion. The Court basis its determination that Connecticut does not have jurisdiction over this matter based upon the new UCCJEA governing jurisdiction to make an initial child custody determination. The court dismisses the motion without prejudice because if the state of Maryland declined jurisdiction, the court may be able to assert jurisdiction under the second section of the act permitting jurisdiction when the court of another state does not have jurisdiction.