FABE, Chief Justice.
A woman living in Alaska filed a petition in Alaska to enforce summer visitation with her son, who lives in Tennessee with his father. After the superior court resolved the visitation issue, the father appealed, arguing that the superior court lacked jurisdiction to hear the case or, in the alternative, that the superior court should have voluntarily ceded jurisdiction to Tennessee because Alaska is an inconvenient forum. We conclude that the superior court had jurisdiction to hear the case and did not abuse its discretion by deciding that Alaska is not an inconvenient forum.
Steven D. and Nicole J.
The superior court found that Nicole represented a credible threat to the physical safety of Steven and the children and granted Steven's petition for a protective order. In 2004, after litigating the divorce action in Alaska for several years, Steven and Nicole reached a settlement granting Steven joint legal custody and primary physical custody of the children in Tennessee, where he had since moved. During the summer and at other specified times, the children were to fly to Alaska to visit Nicole. The settlement agreement was approved by the superior court in March 2004.
In May 2012 Nicole filed a motion in Alaska to enforce visitation, claiming that Steven had refused to surrender the children for summer visitation when she flew to Tennessee to collect them. The next day, a Tennessee circuit court issued an ex parte order exercising temporary emergency jurisdiction over the children and preventing the children from being removed from Steven's care until either the Tennessee circuit court or the superior court in Alaska had conducted a full hearing. Steven filed an opposition to Nicole's motion to enforce visitation in Alaska and moved to transfer jurisdiction over the proceedings to Tennessee.
In June 2012 the superior court in Alaska held a hearing on the motion to enforce visitation as to Warren.
Nicole waited about three weeks before taking and passing a hair follicle test as ordered by the superior court. After giving Nicole an opportunity to explain the delay, the superior court found that she had not justified her failure to obtain a timely drug test. The court ruled that summer visitation in 2012 would not occur, but that visitation over Christmas break might occur if Nicole could take and pass a drug test within a month prior to the scheduled visit. At Steven's request, the superior court committed to writing its decision to deny Steven's motion to transfer jurisdiction to Tennessee.
Despite prevailing below on his opposition to Nicole's motion, Steven now appeals the superior court's order, arguing that the court lacked jurisdiction under the UCCJEA or, in the alternative, that the superior court should have voluntarily ceded jurisdiction as an inconvenient forum to Tennessee. Steven raises no other issues on appeal.
Whether a court can exercise jurisdiction under the UCCJEA is a question of law, which we review de novo.
Alaska Statute 25.30.310 grants exclusive, continuing jurisdiction over a child custody case to the court that made the initial child custody determination (in this case the superior court in Alaska) until certain conditions are met.
The superior court concluded that substantial relevant evidence was available in Alaska because the dispute revolved around Nicole's drug use and conditions in her home:
We review the superior court's determination that substantial evidence related to the dispute was available in Alaska for abuse of discretion.
Steven's only allegation specific to conduct in Tennessee was that Nicole arrived in Tennessee before her scheduled visitation and "made an embarrassing scene."
Steven argues that the evidence available in Alaska relates only to Warren's care, not his "protection, training, and personal relationships."
But the only question before the superior court was whether it is safe for Warren to visit his mother in Alaska. Adverse or dangerous conditions in Nicole's home could certainly affect his "care, protection, training, and personal relationships" if visitation were enforced. Therefore, the superior court did not abuse its discretion by concluding that substantial evidence remains in Alaska.
The present case can be distinguished from one in which the conditions in both homes must be evaluated and compared, such as a more general modification of the custody arrangement. Where one party alleges changed conditions, for example, the court must engage in a careful examination of the best interests of the child by comparing the quality of care offered in both homes.
Steven cites several foreign cases to argue that the trial court erred by finding that substantial evidence remains in Alaska.
We conclude that the superior court did not abuse its discretion by finding that the most relevant and important factor in modifying the custody agreement was the safety of Nicole's home or by finding that evidence of the conditions in Nicole's home was available in Alaska. Therefore, the superior court had exclusive jurisdiction over the case because Nicole lives in Alaska and "substantial evidence remains available in this state regarding the child's care."
Steven also argues that, regardless of where the relevant evidence was located, the
Steven briefly argues that AS 25.30.310(a) only allows the superior court to exercise jurisdiction in this case if it finds both that the child has a significant connection to Alaska and that substantial evidence remains in Alaska. The implied argument is that jurisdiction should fail in Alaska even if substantial evidence remains here because, due to their lengthy absence from Alaska, Warren and his father no longer have a significant connection to the state.
But AS 25.30.310(a)(1) is not a list of requirements that must be fulfilled to retain jurisdiction, it is a list of requirements that must be fulfilled to lose jurisdiction. The plain language of the statute requires an absence of both a significant connection to the state and substantial evidence before jurisdiction is relinquished:
Unless the court finds that both elements are lacking, Alaska retains exclusive, continuing jurisdiction.
Steven also argues that the legislative history of the UCCJEA and the related Parental Kidnapping Prevention Act compel the conclusion that those statutes do not allow an Alaska court to retain jurisdiction where the child has resided in a different state for a long time. "When interpreting statutes we use a sliding-scale approach, under which the clearer the statutory language is, the more convincing legislative history must be to justify another interpretation."
First, Steven cites portions of the Parental Kidnapping Prevention Act. But that Act specifies that the state that made an initial custody determination (in this case Alaska) retains jurisdiction as long as the state has jurisdiction under state law and at least one contestant (in this case Nicole) remains in the state.
Second, Steven cites pieces of legislative history discussing the purpose of the UCCJEA.
Finally, Steven cites statements of Assistant Attorney General Deborah Behr before the Alaska Legislature about the workings of the UCCJEA.
Steven also argues that the superior court's exercise of jurisdiction was improper in the face of Tennessee's temporary assumption of emergency jurisdiction. Steven contends that, after learning of the proceeding in Tennessee, the superior court in Alaska should have stayed its proceedings to communicate with the Tennessee judge. The superior court's failure to do so, Steven argues, warrants reversal. But Steven has failed to show that this lapse, if erroneous, was reversible error.
The Tennessee court entered an ex parte order asserting temporary emergency jurisdiction on May 31, 2012, the day after Nicole filed a motion in Alaska to enforce her visitation. The order stated that the Tennessee court would contact the tribunal in Alaska to determine when a hearing could be held, and the order was set to expire June 22, 2012 or whenever a subsequent order was entered. On June 14, the superior court in Alaska held a hearing on Nicole's motion to enforce visitation.
An exercise of temporary emergency jurisdiction conveys only limited power to make temporary orders necessary to protect a minor during an emergency.
In this case, the Tennessee court did not contact Judge Mark Rindner, nor did Judge Rindner contact the Tennessee court. Steven asks us to conclude that a mutual failure to communicate in this case required the Alaska court to yield jurisdiction to a foreign court asserting only temporary jurisdiction for a limited purpose.
But Steven offers no support for his conclusion that failure to communicate constitutes reversible error. The ex parte order from the Tennessee court clearly indicated that it was responsible for contacting Judge Rindner, although the best practice would have been for Judge Rindner to contact the Tennessee court as well. In any event, the hearing in Alaska was held promptly, before the expiration date contemplated in the emergency jurisdiction order. Steven has not shown that communication between the two judges would have affected this hearing schedule. Nor can Steven, having prevailed on the merits in the visitation enforcement action, show that he was prejudiced in the result.
Steven argues that the superior court abused its discretion by failing to cede jurisdiction to Tennessee under AS 25.30.360, which allows a court to decline to exercise jurisdiction if it "determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum."
Alaska Statute 25.30.360(b) states that, when ruling on an inconvenient forum motion, "the court ... shall consider all relevant factors," including:
Because the hearing was limited to the narrow question of whether summer visitation at Nicole's home should be enforced, we conclude that the determinative factor in this case was the sixth factor, "the nature and location of the evidence required to resolve the pending litigation."
Because the superior court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, and because the superior court's refusal to cede that jurisdiction as an inconvenient forum was not an abuse of discretion, we AFFIRM the judgment of the superior court.
WINFREE, Justice, not participating.