5ASR3d150

Series: 5ASR3d | Year: () | 5ASR3d150
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KATHLEEN

MASANI COX, Plaintiff,

 

v.

 

EUGENE

JOSEPH PASLOV, Defendant.

 

High

Court of American Samoa

Trial

Division

 

DR

No. 115-00

 

July

17, 2001


 

 

[1]

The Parental Kidnapping Prevention Act, 28 U.S.C.A. § 1738A, was intended to preempt

state and territorial law regarding the modification of child custody orders.

 

[2] The

Parental Kidnapping Prevention Act requires that child a custody decree be

given full faith and credit if the decree was made in a manner consistent with

provisions of act.

 

[3]

The Parental Kidnapping Prevention Act provides a two-part jurisdictional test

in order to modify another state’s decree: (1) did rendering state lose or

refuse jurisdiction, and (2) does modifying state now have jurisdiction.

 

[4]

Under the Parental Kidnapping Prevention Act, a rendering court may retain

jurisdiction in one of two ways: (1) by having continuing jurisdiction, or (2)

by having pending jurisdiction over the case.

 

[5]

The jurisdiction of a rendering court is exclusive as long as it satisfies two

requirements: 1) the residence of the child or of any contestant remains in the

rendering state; and 2) the rendering state has jurisdiction under its own

laws. 

 

[6]

During the period of “continuing jurisdiction,” other states or territories

must enforce and cannot modify the initial custody determination.

 

[7]

The Parental Kidnapping Prevention Act provides that a state court has

exclusive jurisdiction when matter before it is pending.

 

[8]

A matter is “pending” for purposes of the Parental Kidnapping Prevention Act at

any point before the final custody order is made and the time for appeal has

expired.

 

[9]

Although enforcement action in Montana against petitioner for alleged

visitation violation was pending, Montana court had previously resolved

question of custody and, therefore, custody determination was no longer pending

within meaning of Parental Kidnapping Prevention Act.

 

[10]

The High Court of American Samoa exercises jurisdiction and modifies foreign

custody decrees when the child in question is present in the territory.

 

[11]

The Parental Kidnapping Prevention Act provides for four bases of jurisdiction:

1) home state jurisdiction, 2) significant connection jurisdiction, 3) emergency

jurisdiction, and 4) default jurisdiction.

 

[12]

The Court need not consider each of the four jurisdictional bases set forth in

the Parental Kidnapping Prevention Act, and may premise its jurisdictional

determination upon just one.

 

[13]

Court considered evidence sufficient to establish emergency jurisdiction where

respondent/father had history of drug abuse, propensity for violence, a recent

pattern of hostility towards petitioner/mother, and demonstrated an inability

to cope with petitioner’s plan to remarry. 

 

[14]

Circumstances to consider in custody situations are that (a) children of tender

years should remain together and custody given to mother; (b) mother is natural

custodian of her young; and (c) there is no satisfactory substitute for

mother’s love.  Other things considered

are good home, congenial surroundings, and intelligent attention and direction

in matters affecting health, education, growth and development of children. 

 

[15] Court concluded it

would be in minor’s best interest that sole and exclusive custody be

reestablished with petitioner where petitioner had been historically

responsible for minor’s upbringing and day-to-day needs, had provided the child

a stable and nurturing environment, had successfully reared the minor’s two older

siblings, had maintained gainful employment and had evidenced more of a

commitment to her parental obligations that the respondent/father.

 

Before

KRUSE, Chief Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate

Judge.

 

Counsel:

For Plaintiff, David M. Wagner

 For Defendant, Marie

A. Lafaele

 

OPINION

AND ORDER

 

Introduction

 

The

petitioner mother Kathleen Cox (“Petitioner” or “the mother”) requests that we

modify a Montana state custody decree (“Montana decree”) and designate her exclusive

custodian of the six-year-old minor child (“Minor” or “the child”) of

Petitioner and respondent father Eugene Joseph Paslov (“Respondent” or “the

father”), who are not now married. The Montana decree modified an earlier

Oregon state court parenting plan by granting custody of Minor, previously with

Petitioner, to Respondent.  On November

22, 2000, Petitioner filed this motion to modify and, on December 21, 2000,

served it upon Respondent.  Trial

commenced on April 5, 2001, with both parties present and represented by

counsel.  Both parties subsequently filed

written closing arguments.  Threshold to

deciding the merits of Petitioner’s request is the issue of whether we have

jurisdiction to alter another state court’s custody decree. Upon careful consideration

of the facts and law in this matter, we conclude that we may, and do, assert

jurisdiction to modify the Montana decree, and therefore, amend that decree as

set out in further detail below.

 

Facts

 

Petitioner

and Respondent wed in 1991.  Petitioner’s

two older children from a previous marriage, Diedre (“Diedre”) and Warren

Esteron (“Warren”), lived with the couple. 

Minor was born to the marriage on November 8, 1994.  Since birth, the mother has been Minor’s

primary caretaker; since the parties’ separation in 1996, she has been Minor’s

resident parent.  Since separation,

Respondent has had very little involvement in the Minor’s day-to-day

upbringing.

 

From

its inception, the marriage was plagued with domestic troubles.  Significantly, the Respondent abused drugs

and exhibited aggressive tendencies towards the Petitioner and her

children.  Respondent admitted to using

drugs “recreationally” early in the marriage but claims that he discontinued

drug use in 1993 or 1994.  According to

Petitioner, Respondent regularly used drugs such as “crank,” a form of speed,

and cocaine at home.  She was introduced

to these substances by Respondent in the first two weeks of the marriage, and

herself tried drugs with Respondent.  She

asserts that she has never used them since. 

Respondent was not very discreet about his drug use in the marital

home.  Warren testified that at the age

of 11 or 12, he discovered what he now believes to be drugs in Respondent’s

bedroom drawer.  Specifically, he found a

plate with cocaine-like powder and cut-up straws.  At another time, Warren saw drug

paraphernalia in the home, and found three packets of the same cocaine-like

substance in Respondent’s bathroom drawer.

 

When

Petitioner was gone on overnight work, Respondent was Minor’s caretaker.  Petitioner, who works as a flight attendant,

frequently traveled interstate, which sometimes required her to “lay-over,” or

rest, in a neighboring state.  On some of

these occasions, Diedre and Warren would awaken at night from Minor’s cries,

only to find him alone in the room he shared with Respondent.  Respondent apparently disappeared frequently

at night, leaving Minor unattended.

 

Throughout

their marriage, Respondent demonstrated an unpredictably violent

temperament.  For example, on one occasion,

when Minor was a baby and was crying, Respondent, in frustration, hovered over

him in his crib, shook the bed, and yelled at him to “shut up.”  Warren attempted to help, but Respondent

refused, and shut him out of the room. 

Minor continued to wail.

 

In

other incidents, Respondent demonstrated physical hostility.  During an intense argument when Petitioner

was nine months pregnant with Minor, Respondent shoved Warren, aged 13 at the

time, into a wall and grabbed him by the neck for attempting to intervene.  On at least two other occasions, police

responded to complaints of domestic abuse. 

Once in 1993, and again in 1995, police arrested and jailed Respondent

for assaulting Petitioner.  In the 1995

incident, Respondent broke Petitioner’s wrist.

 

Soon

thereafter, Petitioner and Respondent separated legally and

geographically.  In 1996, Petitioner

relocated to Washington with her two children and Minor.  At some point after Petitioner moved,

Respondent transferred to Carson City, Nevada.

 

While

living in Washington, Petitioner was able to provide for her children by

continuing her work as a flight attendant. 

When required to work overnight, Petitioner left Minor with Diedre and

Warren, who were then in their mid-teens. 

She would ensure that an adult friend supervised the children.  Although apart, Petitioner continued to send

Minor to visit Respondent without incident. 

Petitioner provided Minor with air transportation through her employee

flight benefits, and sent him to Nevada with one of her older children as an

escort.

 

On

February 12, 1999, an Oregon state court simultaneously granted Petitioner and

Respondent an uncontested divorce, provided Petitioner sole legal and physical

custody of Minor, and adopted the parties’ agreed-upon visitation schedule (“Oregon

parenting plan”).  (Ex. 7, In re the

Marriage of Paslov v. Paslov, No. C96-1936 DR, slip op. at 2-3 (Or. Cir.

Ct. Feb. 12, 1999).)  Specifically, the

Oregon parenting plan provided Respondent with supervised visitation at least

one weekend a month, one month during the summer, and alternating

holidays.  Further, the plan specifically

outlined the method for implementing Respondent’s visits.  Visits were to take place at Minor’s paternal

grandparent’s home in Carson City, Nevada, to which Minor had to travel by air,

chaperoned by Petitioner or one of her two older children.  Respondent was responsible for the cost of

air transportation, and suffered to lose his parenting time if he failed to pay

for Minor’s airfare.  Finally, if

Respondent wished to visit with his son in the summer, he was required to

notify Petitioner of his intended summer schedule no later than May 1st of each

year.

 

Since

the issuance of the Oregon parenting plan, Respondent visited sporadically with

Minor.  In April 1999, Respondent visited

with Minor for about nine to ten days. 

Then, in September 1999, Petitioner sent Minor, escorted by one of her

older children, to Reno, Nevada, where Respondent then lived with his parents.  Minor spent three weeks there.  During the holiday season, from December to

January, Minor again spent three weeks with Respondent.

In

1999, Petitioner decided to relocate from Washington to Butte, Montana, to live

with her fiancé, Don McGee (“McGee”), whom she planned to wed in July

2000.  It appears that at least by late

December 1999, Petitioner finalized her move to Montana (Petitioner maintained

a lease on a Seattle, Washington apartment until December 31, 1999.).   The father, aware of the mother’s plans to

relocate, but ignorant of her proposed marriage, did not initially object.  However, soon after Minor’s Christmas-New

Year sojourn in Nevada, at which time Minor revealed the mother’s nuptial

plans, the father became obsessively concerned with the possibility of another

father figure in his son’s life, and very resentful, if not outright jealous,

over Petitioner’s proposed remarriage.

 

Respondent

unpersuasively claims that he objected to Minor’s transfer to Montana, having

lost all contact with Minor upon Minor’s mid-January return.  In fact, before telephone service had even

reached their new home, Petitioner had given Respondent Minor’s Montana

address.  On the pretext of searching for

Minor, but for the apparent purpose of harassing Petitioner, Respondent

retained a Montana attorney and private investigator.  On March 14, 2000, while McGee and Minor were

having breakfast at the War Bonnet Inn in Butte, Montana, they were approached

by Respondent, Respondent’s mother, and a private investigator.  McGee testified that with Minor nearby,

Respondent glared at him and told him to leave Petitioner because “she’s an

evil bitch.”  McGee reluctantly allowed

Minor to visit with Respondent for 24 hours. Through Respondent’s counsel and

investigator, the parties attempted a later mediation with Respondent’s mother,

counsel, and investigator, with McGee present. 

The meeting resulted in Petitioner’s assistance in providing Minor with

specific telephone access to contact Respondent.  However, for no clear reason, the parties’

effort at resolution failed, and communication between the parties deteriorated

further.

 

On

April 3, 2000, Respondent petitioned a Montana court to recognize and register

the Oregon parenting plan, and modify the same. 

In particular, Respondent asked that Petitioner remain Minor’s sole

custodian, but that the court modify the Oregon parenting plan to provide for

1) increased visitation; 2) reinstatement of Minor’s travel benefits; 3)

specific telephone and e-mail access; 4) process for affecting Minor’s

residential changes; and 5) other general parental duties.[1]  On May 18, 2000, Petitioner acquiesced to the

Montana court’s jurisdiction, but objected to any modification of the Oregon

parenting plan.  On May 22, 2000, Judge Ted

L. Mizner of the Montana Third Judicial District Court of Powell County (“Judge

Mizner”) registered and asserted jurisdiction over Oregon’s plan.

Respondent

continued to be in contact with Minor. 

He kept Minor for a weekend in May, and began negotiating with

Petitioner for his summer parent-child contact. 

Because Petitioner and McGee scheduled to wed on June 24, 2001, the

parties agreed to schedule Respondent’s summer visit with Minor to June 26,

2001.  According to Petitioner, the

parties had agreed to exchange Minor at the Tacoma International Airport in

Seattle, Washington.  However, on June

22, 2000, four days before the scheduled visit in Seattle, Respondent somehow

managed to track down Petitioner while she shopped for things for her wedding

at a Wal-Mart in Butte, Montana.  He

accosted Petitioner and made a public spectacle of himself.  Accusing Petitioner of concealing Minor, he

ranted and raved in the store, quite oblivious to the attention he was

attracting, calling Petitioner, among other things, an “evil adulteress

cunt.”  He further told her that he was

going to ruin her wedding, stalk her for the remainder of her life, harm her

and her children, and make the rest of her years miserable.

 

Respondent,

incredibly, claims that despite the bizarre altercation, Petitioner promised

him a visit with his son at the Ramada Inn Hotel in Butte, Montana, at 12:00

p.m. on June 26.  The facts show that

Petitioner instead immediately petitioned Justice of the Peace Mel Mooney of

SilverBow County (“Judge Mooney”) for a temporary order restraining Respondent

from contact with Petitioner and certain family members, including Minor.  On June 26, 2000, Respondent was served with

the restraining order.  Respondent’s

counsel immediately contacted Judge Mooney and explained that an ongoing

custody proceeding was pending before Judge Mizner in another county.  Judge Mooney rescinded the order as to Minor,

explaining that it had not been his intent to supersede the current custody

order, and ordered that the parties follow the then governing custody order.

 

Not

aware of the order’s rescission, and fearing for her and her children’s safety,

Petitioner cancelled her wedding, and left Montana without informing Respondent

of her or Minor’s whereabouts.  She

thereafter moved to American Samoa.  She

and her children arrived in American Samoa on July 8, 2000.

 

Meanwhile,

court proceedings concerning Petitioner and Minor continued in Montana.  On August 1, 2000, Respondent, still

uninformed as to Minor’s whereabouts, amended his motion to modify the Oregon

parenting plan requesting sole custody of Minor, and Petitioner’s supervised

parent-child contact, and psychological evaluation.

 

On

August 2, 2000, Justice of the Peace Kevin A. Hart of Anaconda-Deer Lodge

County issued a criminal warrant for Petitioner’s arrest on the charge of

parenting interference.  (Ex. 7., State

of Montana v. Cox, No. 00-21331 (Mont. J.P. Ct. Aug. 2, 2000) (warrant of

arrest).)  The basis for the charge was

Petitioner’s thwarting of Respondent’s summer visitation rights.  Id. 

Then, on September 11, 2000, after an ex parte evidentiary

hearing, at which Petitioner was not in attendance, her knowledge of the

hearing doubtful given her absence, and based solely on Respondent’s distorted

version of the facts,[2] Judge Mizner granted

Respondent sole custody of Minor.  Paslov

v. Cox, No. DR00-28 (Mont. Dist. Ct. Sept. 11, 2000).  Judge Mizner prohibited Petitioner from

parent-child contact with Minor “until such time as she submits to, and

completes, a full psychological evaluation, to be administered by a licensed

therapist.”  Id. at 2.  Judge Mizner awarded Respondent reasonable

attorney fees and costs and terminated Respondent’s child support obligations

as of the date of the order.  Id.

 

Since

moving to American Samoa, Petitioner has been seeing a therapist. As stated

earlier, on November 22, 2000, she filed this action to modify Montana’s decree

which gave Respondent sole custody of Minor. 

Then, on December 21, 2000, Respondent was served.  In February 2001, Respondent arrived in

American Samoa and solicited at least three supervised visits with Minor.

 

Currently,

no one lives in Montana.  Petitioner, who

was born and raised in American Samoa, testified that she had always intended

to return to American Samoa and make it her permanent home.  Although Respondent provoked her early

return, she intends to continue to reside in American Samoa.  Petitioner, Diedre, and Minor live with Petitioner’s

mother, a native Samoan, in Pavai`ai, American Samoa.  Petitioner placed Minor in school.  In February 2001, officials from Child

Protective Services performed a home study of Minor’s American Samoa home and

approved it for purposes of his care.[3]

 

Respondent

now resides in Reno, Nevada.  While his

ability to maintain employment has been unsteady, he is currently employed as a

waiter at an Olive Garden Restaurant and claims to work part-time helping out

his father’s business.

 

Discussion

 

[1]

For the first time, this Court is asked to modify another state’s custody

decree in accordance with the Parental Kidnapping Prevention Act, 28 U.S.C.A. §

1738A (“PKPA”).[4]  In an effort to provide a uniform federal

standard for dealing with national controversies over child custody

jurisdiction, Congress enacted the PKPA in 1980.[5]  The PKPA was clearly intended to preempt

state and territorial law regarding the modification of child custody orders.

 

[I]t

is necessary . . .  to establish national

standards under which the courts of such jurisdictions [the states] will

determine their jurisdiction to decide such [custody] disputes and the effect

to be given by each such jurisdiction to such decisions by the courts of other

such jurisdictions.

 

Id.  See also Voninski v. Voninski, 661

S.W.2d 872, 876 (Tenn. Ct. App. 1982) (under the Supremacy Clause of the United

States Constitution, the PKPA entirely preempts state child custody law); Curtis v. Curtis, 789 P.2d 717, 721

(Utah Ct. App. 1990); Archambault v. Archambault, 555 N.E.2d 201, 206

(Mass. 1990).

 

[2]

The PKPA requires that we give the Montana decree full faith and credit if it

was made consistently with the provisions of the statute.  28 U.S.C.A. § 1738A(a).  We need not reexamine Montana’s jurisdiction

over the Oregon plan.  The parties were

both before the Montana Court and assented to Montana’s jurisdiction when the

court considered the question and determined its exercise of jurisdiction

appropriate.  See Jordan v. Jordan,

586 A.2d 1080, 1083 (R.I. 1991) (refusing to revisit jurisdiction determination

because the preliminary question was litigated in an adversarial

proceeding).  We extend full faith and

credit to the Montana decree; the next issue is then, whether the PKPA permits

our modification of the decree. 

[3]

To modify another state’s decree, the PKPA provides a two-part test, which we

apply as follows: 1) did the rendering state lose or refuse jurisdiction; and

2) does the modifying state now have jurisdiction.  28 U.S.C.A. §§ 1738A(f)(1), 1738A(f)(2).[6]

A.  Montana’s

Jurisdiction

 

[4]

There are two ways that a rendering court may retain jurisdiction.  First, under subsection (d) of the PKPA, if

certain requirements are met, the initial court may have “continuing

jurisdiction.”  Second, under subsection

(g) of the PKPA, if the matter before the initial court is not yet final, it

may have “pending jurisdiction” over the case.

 

1. Continuing

Jurisdiction

 

[5-6]

For a period after a state issues an initial decree, that state continues to

have jurisdiction so long as certain PKPA requirements are satisfied.  According to this test, the jurisdiction of a

rendering state is exclusive as long as it satisfies two requirements: 1) the

residence of the child or of any contestant remains in the rendering state; and

2) the rendering state has jurisdiction under its own laws.  During this period of what is often termed

“continuing jurisdiction,” other states or territories must enforce and cannot

modify the initial custody determination.[7]

None

of the participants live in Montana. 

Petitioner and Minor relocated to American Samoa on July 8, 2000, with

the intent to remain and make American Samoa their home.  Respondent currently resides in Nevada.  See, e.g., Dahlen v. Dahlen,

393 N.W.2d 765, 768 (N.D. 1986) (no continuing jurisdiction under PKPA to modify

custody decree where no participants to custody dispute continued to reside in

state).

 

2. Pending

Jurisdiction

 

[7-8]

The PKPA further provides that a state court has exclusive jurisdiction if the

matter before it is pending.  28 U.S.C.A.

§ 1738A(g).[8]  This condition is designed generally to apply

to situations in which no custody determination has yet been made on a matter

before another state court.  See In re

Brandon, 551 N.E.2d 506, 509 (Mass. 1990). 

More specifically, a matter is “pend[ing]” for purposes of the PKPA at

any point before the final custody order is made and the time for appeal

expires.  Id. 

 

In

this case, Montana has made a final custody determination.  On September 11, 2000, Montana transferred

Minor’s custody to Respondent, the nonresident parent.  Furthermore, the period to appeal that

decision has expired.[9]

 

[9]

Respondent further argues that Montana’s jurisdiction is “pending” because an

enforcement action against Petitioner is proceeding in Montana.  A similar fact situation presented itself in In

re Brandon.  There the court

distinguished a “pending” custody determination from a contempt proceeding,

which had been spurred by an alleged violation of one parent’s visitation

rights.  Although an enforcement action

was outstanding in another court, the Brandon court held that that court

had resolved the question of custody, and therefore, the matter was no longer

“pending.”

 

Likewise,

in the present case, the current Montana arrest warrant and criminal proceeding

against Petitioner for an alleged visitation violation is distinct and separate

from Montana’s custody determination and, therefore, is no longer “pending”

within the meaning the PKPA.  With

neither “continuing” nor “pending” jurisdiction, Montana lost

jurisdiction.  We next determine whether

we may exercise jurisdiction.

 

B.  American

Samoa’s Jurisdiction

 

[10]

The second prong of the PKPA modification test requires that the modifying

territory have jurisdiction as defined by its own laws.  American Samoa lacks statutory authority in

the form of a UCCJA.  However, this court

exercises jurisdiction and modifies foreign custody decrees where the child in

question is present in the territory.  See, e.g., In the Matter of Minor Child,

28 A.S.R.2d 31 (Trial Div. 1995).  See

also Restatement (Second) of Conflict

of Laws § 79(b) (1971).[10]

We

hold that we may exercise jurisdiction over Minor’s custody because Minor is

present in the territory, and, in fact, has been present in American Samoa for

the past year.  Nonetheless, because we

have yet to enact our own version of the UCCJA, we turn again to the PKPA to

ensure that our exercise of jurisdiction is consistent with its terms.  See Green v. Bruenning, 690 S.W.2d

770, 771 (Ky. 1985) (adopting PKPA to determine state jurisdiction where state

had not adopted the UCCJA).

 

[11]

The PKPA provides four jurisdictional bases including: 1) home state

jurisdiction; 2) significant connection jurisdiction; 3) emergency

jurisdiction; and 4) default jurisdiction. 

28 U.S.C.A.  §§ 1738A(c)(2)(A)-(D).

 

[12]

We need not consider each basis, and may premise our jurisdictional

determination upon just one.  See

Evans v. Evans, 668 F. Supp. 639, 641 (M.D. Tenn. 1987) (court must meet at

least one of the jurisdictional touchstones of PKPA to modify another state’s

custody determination).  Under the third

enumerated condition, we have jurisdiction if:

 

the

child is physically present in such State and . . . it is necessary in an

emergency to protect the child because [he] has been subjected to or threatened

with mistreatment or abuse[.]

 

28

U.S.C.A. § 1738A(c)(2)(C).

 

[13]

The circumstances in this case clearly create an emergency substantial enough

to confer upon this court jurisdiction to protect Minor from Respondent.  This Court, unlike the Montana Court, had the

benefit of an inter partes adversarial trial.  The evidence before us clearly shows that

Respondent has a history of drug abuse and a demonstrated propensity for

violence.  Furthermore, Respondent’s

recent pattern of hostility towards Petitioner because of her proposed marriage

culminating in the incident at the Montana Wal Mart, makes evident Respondent’s

current instability and inability to cope with certain realities, namely

Petitioner’s plan to remarry.  We are not

satisfied that Minor will not be subjected to these harms while in Respondent’s

primary care and, therefore, exercise jurisdiction to protect the child’s best

interest.

 

C.  Custody

 

[14-15]

Noting jurisdiction, and taking into consideration all of the factors in this

case, we modify the Montana decree to provide Petitioner sole and exclusive

custody of Minor.  We have previously

expressed the circumstances to consider in custody situations as follows:

 

[O]ther

things being equal, children of tender years should remain together and their

custody given to the mother.  The mother

is the natural custodian of her young. 

There is no satisfactory substitute for her love.  Other things being weighed and considered are

a good home, congenial surroundings, and intelligent attention and direction in

matters affecting the health, education, growth and development of the

children. 

 

Stevens

v. Stevens, 21 A.S.R.2d 76, 78-79 (Trial Div.

1992) (citations omitted).  Historically,

Petitioner has been primarily responsible for Minor’s upbringing and day-to-day

needs.  The evidence shows that the

mother has continued to provide Minor with a stable and nurturing

environment.  While managing single

parenthood, the mother has maintained gainful employment; the father has

not.  In addition, the mother has a

proven record of accomplishment with raising children, having successfully

reared Minor’s two older siblings. 

Perhaps as significant a factor is Minor’s continued interaction with

his two older siblings, who have both actively participated in Minor’s

upbringing and care.  Currently, Diedre

and the child reside with the mother. 

While we do not doubt a father’s love for his son, this father’s

commitment towards his parental obligations is far outweighed by the mother’s

in this case.  When married, the father

left the child unattended at night in the mother’s absence, openly abused

drugs, and demonstrated an uncontrollable temperament.  Since the separation and divorce, he has

inconsistently invoked his visitation rights, and has had to rely on his

ex-wife for assistance.  Furthermore, we

have not had the benefit of any evidence as to the father’s ability to provide

for the child’s day-to-day care such as a stable home environment and

educational needs.  From what can be

gleaned from the father’s circumstances, he appears seriously dependent on his

own parents to provide for the child’s needs, especially since all of

Respondent’s visits with Minor have taken place at the paternal grandparent’s

home.  Moreover, the record before us is

scant as to the paternal grandparents’ circumstances in terms of their ability

and willingness to furnish day-to-day assistance beyond intermittent visits as

in the past.  The Court is not convinced

of the father’s suitability for sole custody given his background with drug

abuse coupled with his aggressive nature. 

At the same time, we are troubled with the very clear impression that

Respondent’s motivation and primary purpose in this whole sorry affair has not

so much been the best interests and welfare of the Minor, but rather the

detriment of his mother. We conclude, therefore, that it would be in Minor’s

best interest that custody be reestablished with the Petitioner.

 

Order

 

1.

Sole and exclusive custody of Minor is granted to Petitioner.

2.

Temporary physical custody of Minor is granted to Minor’s maternal grandmother

until the conclusion of Montana criminal proceedings regarding the charge

against Petitioner of alleged parental interference.

 

3.

Reasonable visitation, supervised by a Department of Human and Social Services

Child Protective Services officer or representative, is granted to Respondent.

 

It

is so ordered.

 



[1] 

Respondent also requested amendment to child support obligations, not at

issue in this case.

[2] 

Respondent accuses Petitioner of thwarting his visitation

opportunities.  However, it is quite

clear from the evidence that Respondent’s missed visits with Minor were due to

his own failure to schedule or pay for Minor’s transportation as mandated by

the Oregon parenting plan.  In fact, on

occasions, Petitioner facilitated, rather than inhibited visits by providing

air transportation for Minor through her employment benefits.  And when she did not, she received haranguing

email from Respondent’s mother bemoaning Respondent’s failure to provide for

Minor’s transportation costs, citing Respondent’s unemployment.

[3] 

At a hearing held post-trial but before the issuance of this decision,

on June 25, 2001, concerning the same matter, Petitioner’s counsel advised the

court that Petitioner is currently in Montana to face the charge of alleged

parental interference.  In the meantime,

Minor continues in the care and custody of his maternal grandmother and Deidre.

[4] 

Petitioner also asks that we modify the Montana custody decree in

accordance with the Uniform Child Custody Jurisdiction Act of 1968

(“UCCJA”).  However, while the majority

of states and territories have enacted the UCCJA, or its equivalent, American

Samoa has not.

[5] 

The PKPA applies to American Samoa where the act defines “state” as

including “a territory or possession of the United States.”  28 U.S.C.A. § 1738A(b)(8).

[6] 

The PKPA provides in pertinent part:

Full faith and credit given to

child custody determinations

(a) The appropriate authorities

of every State shall enforce according to its terms, and shall not modify

except as provided in subsection[ ] (f) . . . of this section, any [child]

custody determination . . . made consistently with the provisions of this

section by a court of another State.

* * *

(f) A court of a State may modify

a determination of the custody of the same child made by a court of another

State, if —

(1) it has jurisdiction to make

such a child custody determination; and

(2) the court of the other State

no longer has jurisdiction, or it has declined to exercise such jurisdiction to

modify such determination.

28 U.S.C.A. §

1738A(a), (f).

[7] 

PKPA subsection (d) states:

The jurisdiction of a court of a

State which has made a child custody . . . determination consistently with the

provisions of this section continues as long as the requirement of subsection

(c)(1) of this section continues to be met and such State remains the residence

of the child or of any contestant.

28 U.S.C.A. §

1738A(d).  PKPA subsection (c)(1) states,

in pertinent part:

A child custody . . .

determination made by a court of a State is consistent with the provisions of

this section only if  (1) such court has

jurisdiction under the law of such State.

28 U.S.C.A. § 1738A(c)(1).

[8] 

PKPA subsection (g) states:

A court of a State shall not

exercise jurisdiction in any proceeding for a custody . . . determination

commenced during the pendency of a proceeding in a court of another State where

such court of that other State is exercising jurisdiction consistently with the

provisions of this section to make a custody determination.

28 U.S.C.A. § 1738A(g).

[9] 

Montana Rules of Appellate Procedure Rule 5(a)(1) allows parties 30 days

to appeal a custody determination.

[10] 

The Restatement states in relevant part:  “A state has power to exercise judicial

jurisdiction to determine the custody . . . of a child . . . who is present in

the state.”  Restatement (Second) of

Conflict of Laws §

79(b).