USA – WA – IERONIMAKIS – 1992 (This is not a Hague Case, extensive reference to UCCJA) IERONIMAKIS v IERONIMAKIS. The mother took the children to the US. The US court, after communication with the Greek court, ruled that the matter of custody was best heard in the Greek court. The Greek court ruled in the mother’s favor and said the father would not get the children and the children would remain in the US. The US courts then gave custody to the mother with supervised visits to the father. The father files this appeal. The court affirmed the decree of dissolution, but reverse the custody decree. The trial court shall retain jurisdiction to implement the Greek custody decrees and to transfer custody if ordered by the Greek courts. (See footnotes by Mr. Hilton)
In re Marriage of Ieronimakis (Wash.App. Div 1 1992)831 P.2d 172
2 International Abduction [USA 1992]
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<* page 173>
Stephen Johnson, Seattle, for appellant.
John Fox, Seattle, for respondent.
FORREST, Judge.
001 Appellant Markos Ieronimakis, a citizen of Greece,
appeals an award of custody of the two children born of his
marriage to Helen Ieronimakis asserting that the court below
lacked subject-matter jurisdiction. We affirm the decree of
dissolution, but reverse the custody decree finding the
court lacked subject matter jurisdiction. FN 1
FACTS AND PROCEDURAL HISTORY
002 Markos Ieronimakis was born in Greece and has lived
there all of his life except for a period of time spent in
the United States in the late 1970s. Helen Ieronimakis was
born in Greece, but emigrated to North America when she was
8 years old, moving first to Canada and later settling with
her parents in Seattle. Helen became an American citizen.
003 In the late 1970s Helen and Markos met in Seattle. They
moved to Greece where they married on June 26, 1978. The two
children who are the focus of this appeal, Iosif (Joseph)
and Nicolaos (Nicholas) were born in Greece. Joseph was born
on April 22, 1979. Nicholas was born on April 29, 1980. The
family resided in Greece, where Markos is employed, until
the parties separated on August 4, 1987, On that day, and
while Markos was at work, Helen took the children and flew
to Seattle, where she and the children commenced to reside
with Helen’s parents. On the following day, August 5, 1987,
Markos reached Helen by telephone. She told him that she did
not intend to return the children to Greece. On August 11,
1987, precisely 7 days after arriving in Seattle, Helen
filed a petition for dissolution of marriage in which she
sought to be awarded the custody of Joseph and Nicholas.
004 In Greece, the parties experienced marital
difficulties. Helen alleged in the proceedings below that
Markos kept her and the children socially isolated, that he
drank excessively, that he was physically abusive to her and
the children, that he demanded she abort her third
pregnancy, which occurred in 1986, and that although Markos
had at one point agreed to allow her and the children to
come to live in the United States, he also had threatened to
have her <* page 174> deported and to keep the children from
leaving Greece with her.
005 Although Markos limited his appearance in the
proceedings below to the purpose of objecting to the court’s
jurisdiction in the custody proceedings, he submitted
controverting affidavits, and he did submit to an interview
with the court-appointed guardian ad litem. FN 2 In his
interview with the guardian ad litem, Markos (through an
interpreter) charged Helen with being the one who kept
herself and the children isolated in Greece. He denied
excessive drinking and he denied that he had ever agreed
that Helen and the children could come to the United States
to live, characterizing her departure from Greece with the
children as a parental “kidnapping”.
006 After Helen filed the petition for dissolution a show
cause hearing for temporary custody was scheduled. Helen
retained an attorney in Athens, Greece, for the purpose of
serving Markos. On December 8, 1987, and while under the
erroneous impression that Markos had been timely served with
the appropriate King County court documents, Helen obtained
a temporary custody order. The order was made subject to the
subsequent filing of an affidavit of service, however.
007 Helen then learned that the attorney who had been
retained to effectuate service upon Markos had failed to
actually deliver the court documents to him. Instead the
attorney had given Markos only a verbal notice of the
Washington proceedings.
008 Meanwhile, on August 17, 1987, Markos commenced a child
custody proceeding in Greece. The Greek court authorized
telegram notice of those proceedings on Helen, but Helen
maintains that she never received such a telegram and the
record of the Greek proceedings which have been provided for
this appeal contain no proof that such telegram notice was
ever sent. A show cause hearing was set in Athens for August
27, 1987. On that day Markos obtained a temporary custody
order in his favor. A trial date on the issue of permanent
custody was scheduled for December 14, 1987.
009 On December 12, 1987, Helen was served with notice of
the Greek court proceedings. She hired an attorney in Athens
to appear on her behalf, and on December 14, 1987, that
attorney obtained a continuance in the Greek trial date to
February 1, 1988.
010 On January 19, 1988, Markos appeared in the King County
dissolution matter, through retained counsel, he having been
by then either personally served in Greece or he elected to
appear in response to the verbal notice of the Washington
proceedings. His appearance was stated to be for the limited
purpose of contesting the jurisdiction of the Washington
court with respect to the children’s custody. Markos has
never filed a response to the petition for dissolution of
marriage, and in fact fie has declined to respond, relying
instead on the jurisdictional challenge.
011 On February 1, 1988, the permanent custody trial took
place in Greece. On February 18, 1988, a written decree was
entered, awarding the children’s custody to Markos. No
visitation was provided for Helen. After reciting that Helen
had surreptitiously removed the children from Greece and
that Markos was a loving fattier, the Greek decree stated as
follows:
The interest of the minor children, for [their]
correct [physical] and corporal development,
imposes that the parental custody [of] them will
be granted to their father and that they must be
educated here, in Greece as [Greek boys. The
defendant [mother] has the intention to not come
back never in Greece and to retain permanently the
above mentioned minor children in America.
Therefore the law-suit must be admitted as
substantially … well founded …
012 Helen then appealed the Greek custody decree to a
higher court. According to documents from the Greek
judicial authorities which were provided with the record for
the appeal here in Washington, Helen was not required by
Greek law to comply <* page 175> with the Greek trial
court’s order while her appeal in Greece was pending.
013 Meanwhile, between February and June 1988, a
commissioner of the King County Superior Court communicated
with the appropriate judicial authorities in Greece,
inquiring about Greek substantive and procedural law in
child custody matters. The commissioner received written
assurances from the Greek authorities that Greece provides
equal rights for women and that child custody decisions are
based on the best interests of the child. FN 3
014 On June 16, 1988, the commissioner entered an order in
the Washington proceedings deferring jurisdiction to the
Greek courts, stating that this ruling was in keeping with
the policies of the Uniform Child Custody Jurisdiction Act
(UCCJA) and forum non conveniens.
015 Helen timely sought revision of the commissioner’s
ruling. On July 13, 1988, the court appointed a guardian ad
litem for the children (and a few days before that date the
court also appointed Dr. Reichert, a behavioral and
developmental pediatrician, to evaluate the children).
016 On September 25, 1988, while the Washington revision
proceedings were still underway, Helen prevailed in her
appeal of the Greek custody decree and received a ruling
that the father would not have the children and that the
children would remain in the United States. FN 4
017 On November 14, 1988, after having received the written
reports of the guardian ad litem and court-appointed
pediatrician, a judge of the King County Superior Court
granted revision of the commissioner’s ruling, and ordered
instead that custody jurisdiction would be retained in
Washington based on the “best interests of the children.”
Due to delays which appear to be the responsibility of both
parties’ counsel below, the written order granting revision
was not entered until March 3, 1989. Markos then sought
discretionary review of that order in this appellate court.
Discretionary review was denied.
018 On November 13, 1989, after appropriate notice to
Markos, a commissioner of the King County Superior Court
entered an order of default, findings of fact, conclusions
of law, decree of dissolution of marriage and a permanent
parenting plan, by which the Ieronimakis marriage was
dissolved and by which Helen was designated to be the
children’s custodian and sole decision-making residential
parent. The parenting plan provided Markos with up to 1
month of summer visitation with the children annually, to be
exercised only in King County, upon advance notice to the
mother. The visitation was limited to the daytime and was
required to be supervised by a neutral third party. In order
to protect the children from being returned to Greece during
any such visitation, Markos was to be required to
temporarily surrender his passport to a neutral third party
during the duration of the visitation. The parenting plan
further provided that upon Joseph reaching the age of 14 and
Nicholas reaching the age of 13, the children may, if they
desire, have a month of annual summer visitation with Markos
in Greece, conditioned upon Markos’ assurance that the
children will be returned to the United States.
019 After hearing from the two attorneys with respect to
the procedural history and the prior rulings on the
jurisdictional issues of the case, a court commissioner (who
had <* page 176> not previously been involved with the case)
heard testimony from Helen. Helen testified as to the date
of the marriage, as to the names and birth dates of the
children, as to the period of the children’s residency in
Greece, as to her United States citizenship and as to the
children’s “green cards”. She also testified that the
children had (by then) resided in King County for 2 years,
that the marriage was irretrievably broken, that site was
able to support the children fully, and that Markos bad
provided no financial support for the children since
separation.
020 The commissioner was also advised that the provisions
of the parenting plan were based on the recommendations of
the children’s guardian ad litem, and that although Markos
had Helen’s current telephone number, he had made no effort
to contact the children since March or April of 1989, a
period of some 7 or 8 months.
021 The court commissioner then entered tile findings and
conclusions, parenting plan and decree of dissolution of
marriage. This appeal was timely filed by Markos.
SUBJECT MATTER JURISDICTION
022 Markos argues that jurisdiction should have been
declined by the court in order to comply with the Uniform
Child Custody Jurisdiction Act (UCCJA). FN 5 We agree.
Helen contends the UCCJA does not apply to this proceeding
because Greece is not a “state” as defined in RCW
26.27.020(10). FN 6 This is clearly correct for certain
provisions of the act such as RCW 26.27.060 dealing with
simultaneous proceedings in other states. However, RCW
26.27.030 FN 7 sets forth the jurisdiction requirement for
the Washington court to try a child custody dispute. The
petitioner has the burden to establish jurisdiction. The
determination of jurisdiction under section (1)(a), (b), (c)
is made without reference to whether Greece is included in
the definition of “state”. Only section (1)(d) involves the
definition of “state” as a basis for jurisdiction. Helen did
not rely on (d) as a basis for jurisdiction. Reading the
section literally, it is arguable that although Greece
asserted jurisdiction, not being a state as defined in RCW
26.27.020 that the Washington court could assume
jurisdiction. We are doubtful that in light of the purposes
of the statute such result was the legislative intent.
However, we prefer to rest our holding on the provisions of
RCW 26.27.230:
International application.
The general policies of this chapter extend to the
international area. The provisions of this chapter
relating to the recognition and enforcement of
custody decrees of other states apply to custody
decrees and decrees involving legal institutions
similar in nature to custody rendered by
appropriate authorities of other nations if
reasonable notice and opportunity to be heard were
given to all affected persons.
023 Under this section the Washington court would give
effect to custody decrees of foreign nations, including
Greece, in the same manner they would to those of sister
states. We need not decide whether the trial court should
have given effect to the Greek decree at the time of the
trial of this matter since we hold the court should not have
assumed jurisdiction and since jurisdiction is to be
determined as of the time an action is commenced.
024 What is the result of applying the “general policies of
this chapter” to this international custody dispute? If this
mother and these children had come from Puerto Rico, it
could hardly be seriously argued that Washington should not
decline in favor of Puerto Rico. FN 8 Applying the “general
policies” to these facts, the result should be the same.
There is no question that if Greece was a sister state, it
would be the “home state” and the proper place for the
determination of custody. No persuasive reason has been
urged for denying Greece the status of a “home state” except
the restrictive definition of RCW 26.27.020 which we do not
find to be controlling in light of RCW 26.27.230.
026 Since Washington is clearly not the home state,
jurisdiction must be found on the alternative bases of
jurisdiction set forth in RCW 26.27.030. Apparently the
trial court believed jurisdiction may be based on
alternative (b) because Helen and the children have a
“significant connection” with Washington and there is
substantial evidence concerning the children’s best interest
here, This analysis is unpersuasive because the facts which
the trial court relied on in determining the jurisdiction
question came into existence after the dissolution petition
was filed. At the time the petition was filed all the
relevant information was in Greece with the possible
exception of a minor relationship with the maternal
grandparents which could certainly have been presented to
the Greek court. FN 9 The fact that there was substantial
evidence concerning the children’s care, protection,
training, and personal relationships at the time of trial
does not justify the Washington court taking jurisdiction.
027 To allow Washington courts to assert jurisdiction
because Helen generated significant contacts with the state
is in effect telling any abducting parent that if you can
stay away from the home state long enough to generate new
considerations and new evidence, that is a sufficient reason
for the new state to assert a right to adjudicate the issue.
Such a holding circumvents the intent of the jurisdiction
laws. FN 10 <* page 178>
028 While there were allegations of mistreatment, none of
which seemed overwhelming, FN 11 there is no showing that
the Greek courts are incapable of protecting the children’s
interests. To the contrary, the superior court commissioner,
prior to recommending the court decline jurisdiction,
confirmed that the children’s welfare would be safeguarded.
The only other basis for ignoring the well-settled policies
and allowing jurisdiction in Washington courts is the belief
that the return of the children to Greece at this point
would place them in an intolerable situation. Of course this
argument addresses the custody issue which may only be
considered after jurisdiction is established. Even if true,
this situation results, of course, from events which have
transpired since Helen abducted and gained sole control over
the children FN 11 and should not be retroactively applied
to control a decision as to jurisdiction. Even if the Greek
court had awarded custody to the father, there is no reason
to assume a total separation from the mother. Any such
separation would only result from Helen’s choice to put her
own desires above her children’s welfare by deciding not to
live in Greece and not to visit Greece.
029 If the choice before this court truly was between the
children with their father in Greece having no contact with
Helen causing the undesirable rupture of their relationship
with the mother; or the children with the mother in the
United States having essentially no contact with Markos, it
would be a much harder case. It appears that the trial
court, and the dissent, believed it was faced with such an
all or nothing choice. Fortunately, that is not the case
before us. This court can apply the proper principle
declining jurisdiction in favor of the home state
recognizing that the Greek court likewise recognizes the
importance of the children’s relationship with their mother.
FN 13
030 One of the tragic consequences of the trial court’s
decision is that these children would be effectively denied
any reasonable relationship with their father and would be
cut off from their Greek heritage. Markos can only visit in
a strange country, in the presence of a neutral supervisor,
after surrendering his passport like a criminal on bail.
Such restrictions might be appropriate for Helen’s
visitation in Greece since she has a proven record of
abduction. Here they are totally inappropriate and unfair to
Markos. Additionally, and more importantly, the restrictions
would damage the children by preventing any normal
relationship with their father and their Greek heritage.
031 Furthermore, since the Greek court has jurisdiction
over both parents, a Greek decree may prove much more
flexible and reasonable in attempting to have these children
enjoy a significant relationship with both parents and with
their Greek homeland. It would be an unacceptable precedent
to reward the abducting parent without any substantial
showing that such action is necessary to avoid threatened
mistreatment and abuse of the children. Applying the
“general policies” of the UCCJA <* page 179> to this dispute
requires the Washington courts to decline jurisdiction.
DISCRETIONARY REASONS FOR DECLINING JURISDICTION
032 Even if this court were to conclude that jurisdiction
may be found under any of the provisions of RCW 26.27.030,
jurisdiction should have been declined on the basis of RCW
26.27.070 and RCW 26.27.080(1). The doctrine of forum non
conveniens has been codified into the UCCJA at RCW 26.27.070
and provides that even where a court has jurisdiction, it
should decline to exercise jurisdiction under certain
circumstances. Many of the factors intended to determine if
a forum is inconvenient merely repeat the home state and
significant connection tests of jurisdiction. FN 14 As
discussed above, Greece was the home state, had the most
significant connection with the family and had the most
substantial evidence of the children’s welfare at the filing
of this action. The exercise of Washington jurisdiction
violates the home state preference and thus defeats the
purposes stated in 26.27.010.
033 Likewise, RCW 26.27.080(1) FN 15 specifically addresses
the facts of this case. When the petitioner for an initial
decree has wrongfully taken the child from its home state
the court may decline jurisdiction. To hold otherwise would
create a double standard, establishing different rules for
“good abductions” and “bad abductions.” But this court
cannot condone Helen’s conduct, no matter how well
intentioned, when it presents a deliberate frustration of
Markos’ rights and an attempt to select the forum for the
custody dispute contrary to the statutory policies. The
exercise of jurisdiction contravenes the strict policy to
deter abductions and other self-help measures undertaken to
obtain custody. FN 16
HAGUE CONVENTION
034 We find additional support for this conclusion in the
recently adopted Hague Convention on the Civil Aspects of
International Child Abduction (Hague Convention). FN 17
Article 1 of the Convention provides as follows:
The objects of the present Convention are
[a] to secure the prompt return of children
wrongfully removed to or retained in any
Contracting State, and
[b] to ensure that rights of custody and of access
under the law of one Contracting State are
effectively respected in the other Contracting
States.
035 Although the convention does not directly control the
instant matter FN 18 it is a clear <* page 180>
manifestation of this country’s national policy to
discourage abductions and encourage home-state jurisdiction.
Although somewhat more generous and flexible in allowing a
nation’s courts to assume jurisdiction of an international
custody dispute, there is a surprisingly good fit between
the purposes and provisions of the UCCJA and the Hague
Convention. Our interpretation and application of the
general language of RCW 26.27.230 applying the general
policies of the UCCJA to international custody disputes is
in harmony with the provisions and purposes of the Hague
Convention.
036 The judgment of a trial court assuming jurisdiction of
this custody dispute and award of guardian ad liten fees is
reversed, in other respects the decree of dissolution is
affirmed. The trial court shall, however, retain
jurisdiction to enter appropriate orders implementing the
current Greek custody decree and specifically to arrange for
a transfer of custody if such transfer is required by the
Greek decree.
SCHOLFIELD, J., concurs.
KENNEDY, Judge (dissenting).
037 I respectfully dissent. The King County Superior Court
did not lack subject matter jurisdiction over this
international custody dispute. Nor was the court required to
decline jurisdiction under the doctrines of forum non
conveniens or clean hands. Moreover, and contrary to the
conclusion of the majority, its decision is most definitely
not in harmony with the purposes of the Hague Convention.
SUBJECT MATTER JURISDICTION
1. International Application
038 RCW 26.27.230 provides as follows:
The general policies of this chapter extend to the
international area. The provisions of this chapter
relating to the recognition and enforcement of
custody decrees of other states apply to custody
decrees … rendered by appropriate authorities of
other nations if reasonable notice and
opportunity to be heard were given to all affected
persons.
039 Clearly, if the issue is recognition and enforcement of
a foreign custody decree, this section means that RCW
26.27.130, .160 and .160 apply to the proceeding if the
foreign decree was entered after reasonable notice and
opportunity to be heard. DNF 1 Had the Legislature intended
that subject matter jurisdiction over international custody
disputes is to be determined pursuant to RCW 26.27.030,
presumably the Legislature would have so stated, just as it
did with respect to recognition and enforcement of foreign
custody decrees. Instead, the Legislature adopted 23 of
the uniform act. See Uniform Child Custody Jurisdiction Act
23, 9 U.L.A. 123, at 326-27 (1968).
040 Accordingly, it would appear that our Legislature
intended this section on international application to be
interpreted in accord with the Commissioners’ Note following
23 of the uniform act:
The first sentence [of 23] makes the general
policies of the Act applicable to international
cases. This means that the substance of section 1
[RCW 26.27.010, Purposes of chapter] and the
principles underlying provisions like sections 6
[RCW 26.27.060, Simultaneous proceedings in other
states], 7 [RCW 26.27.070, Inconvenient forum], 8
[RCW 26.27.080, Jurisdiction declined by reason of
conduct] and 14a [RCW 26.27.140(1), Modification
of custody decree of another state] are to be
followed when some of the persons involved are in
a foreign country . . .
041 Ibid. Notably absent from this explanation of the
meaning of the first sentence of 23 is any reference to
3 of the uniform act, the section found at RCW 26.27.030,
entitled Jurisdiction.
041 The initial question before this court is whether RCW
26.27.030 governs the issue of subject matter jurisdiction
in Washington over the custody of Joseph and Nicholas. If
so, neither the Washington Legis- <* page 181> lature in
adopting the uniform act, nor the National Conference of
Commissioners in drafting and explaining the uniform act,
have so stated. This is a glaring omission, if indeed it was
intended that .030 would govern; so glaring is the omission
that I can only conclude that .030 does not govern the
question of subject matter jurisdiction over international
custody disputes. Rather, the general purposes of the act as
set forth in .010 and the doctrines of forum non conveniens
and clean hands, as set forth in .070 and .080, must guide
the Washington courts in the exercise of their discretion of
whether to retain jurisdiction over an international custody
dispute. If subject matter jurisdiction over an
international custody dispute exists pursuant to ch. 26.09
RCW, the marital dissolution chapter, that jurisdiction will
not be abrogated by any provisions of ch. 26.27 RCW, the
Uniform Child Custody Jurisdiction Act (UCCJA), except in
the case of a petition filed in Washington after a petition
has been filed in a nation having concurrent jurisdiction
and exercising that jurisdiction substantially in
conformance with the act. RCW 26.27.060(1).
042 In addition to being guided by the above statement of
intent of the drafters of the uniform act, we should be
guided by the normal rules of statutory construction, with
respect to this issue of subject matter jurisdiction over an
international custody dispute. Where a statute specifically
designates the things upon which it operates, there is an
inference that the Legislature intended all omissions. See,
eg., Kreidler v. Eikenberry, 111 Wash.2d 828, 835, 766 P.2d
438 (1989) (express mention of one thing implies exclusion
of another). Therefore we can infer that because the
Legislature specifically made the provisions of the chapter
which govern recognition and enforcement of decrees of other
states applicable to the decrees of other nations, while
otherwise extending only the “general policies” of the
chapter to international custody disputes, the Legislature
did not intend that RCW 26.27.030 would govern the issue of
subject matter jurisdiction with respect to international
custody disputes.
043 This construction makes sense, both in terms of the
normal rules of statutory construction and in terms of the
best interests of children, not all of whom may be brought
to Washington from a foreign country which recognizes that
women and children are not chattels. DFN 2
044 My conclusion is that although the Legislature intended
the provisions of .130, .150 and .160 to apply in the
international area, .030 was not intended to govern the
issue of subject matter jurisdiction over international
custody disputes. That jurisdiction either is or is not
present, pursuant to ch. 26.09 RCW. If it is, then the court
is to look first to the provisions of RCW 26.27.060 and if
no other petition is pending as therein provided the court
must then look to the provisions of RCW 26.27.010, .070 and
.080 and be guided by the principles underlying those
provisions in exercising its sound discretion. The court is
thus to determine, in the exercise of its sound discretion,
whether to exercise its jurisdiction or whether to defer to
the concurrent jurisdiction of the foreign nation. DFN 3
045 In the proceeding below, the court commissioner so
understood, and, after hearing from the Greek judicial
authorities, decided to defer to the concurrent jurisdiction
of Greece. DFN 4 Upon motion for revision, and following a
much more thorough inquiry, <* page 182> the superior court
judge declined to so defer and ruled as a matter of law that
the UCCJA did not dictate otherwise. Both the court
commissioner and the revising judge clearly understood, as
the majority of this panel does not, that there is subject
matter jurisdiction in Washington and the real issue is
whether to exercise that jurisdiction, or whether to defer
to the concurrent jurisdiction in Greece, even though the
Washington petition was the first to be filed, based on the
doctrines of forum non conveniens or clean hands, and most
importantly of all, based upon which of the competing forums
was prepared to address and was actually addressing the best
interests, of Joseph and Nicholas.
046 Subject matter jurisdiction became vested in Washington
when Helen lawfully removed the children from Greece and
brought them to Washington, where she established a domicile
for herself and for the children who were lawfully in her
custody and when Helen thereafter petitioned the court for
marital dissolution and for custody of the children, prior
to the time that Markos commenced the proceeding in Greece.
See RCW 26.09.030; RCW 26.27.060; In re Burns, 194 Wash.
293, 77 P.2d 1025 (1938); In re Marriage of Myers, 92
Wash.2d 113, 594 P.2d 902 (1979); In re Marriage of Saucido,
85 Wash.2d 653, 538 P.2d 1219 (1975); In re Marriage of
Verbin, 92 Wash.2d 171, 595 P.2d 905 (1979).
047 Although the majority characterizes Helen’s unilateral
decision to remove the children from Greece as “wrongful”
and as an “abduction”, majority opinion, at 177, 178-179, it
is neither “wrongful” nor an “abduction” to remove one’s
children from an abusive situation and to re-establish them
in a place of safety, unilaterally or otherwise. DFN 5
Helen violated no court decree in removing these children
from Greece. That her decision was unilateral, i.e., that
the children were removed without prior notice and while
Markos was at work, is certainly understandable. There is
substantial evidence that Helen and both children had been
abused physically by Markos and that, although Markos had on
some occasions told Helen to take the children and get out,
on other occasions Markos had threatened to have Helen
deported and to keep the children from her. These issues go
more to the discretionary determinations which were before
the superior court than they do to the issue of subject
matter jurisdiction and I will discuss them in more detail
later in this opinion. But there is also a relationship to
subject-matter jurisdiction in that a parent may not obtain
subject-matter jurisdiction in this state under ch. 26.09
RCW by removing a child in violation of a valid court
decree. DFN 6 In that instance, the child may be “found in
Washington” but the child is not legally “domiciled” in
Washington. See, e.g., In re Marriage of Saucido, 85 Wash.2d
at 653, 659, 538 P.2d 1219. Helen violated no such court
decree. She and the children were legally domiciled in
Washington. The superior court had subject matter
jurisdiction pursuant to cit. 26.09 RCW.
2. Subject Matter Jurisdiction and the UCCJA
048 Even if the majority were correct in its conclusion
that RCW 26.27.030 governs the issue of subject matter
jurisdiction in this international custody dispute, the
superior court had subject matter jurisdiction over the
custody of these children pursuant to RCW 26.27.030(1)(b),
which provides that the superior court has jurisdiction to
make a child custody determination by initial decree if
(b) It is in the best interest of the child that a
court of this state assume jurisdiction because
(i) the child and his parents, or the child and at
least one <* page 183> contestant, have a
significant connection with this state, and (ii)
there is available in this state substantial
evidence concerning the child’s present or future
care, protection, training and personal
relationships; . ..
049 (Italics mine.) DFN 7 Subject matter jurisdiction under
this section is sometimes referred to in the case law and
literature as “best interest jurisdiction”.
Significant Connections Test
050 The majority brushes off the issue of Helen’s and the
children’s significant connection in Washington by ignoring
Helen’s significant connection altogether and by
characterizing the children’s significant connection as only
“a minor relationship with the maternal grandparents”.
Majority opinion, at 177. This is an unfair and unwarranted
representation of the evidence in the record. The record
clearly demonstrates that both Helen and the children have
strong family ties in Seattle which were in place long
before Helen brought the children to Seattle and instituted
this custody proceeding.
051 Helen had lived in Seattle from early in her childhood
and until her marriage to Markos. She had attended Shoreline
Community College and the University of Washington before
her marriage to Markos. Her parents and siblings still
reside in Seattle. As for Joseph and Nicholas, in addition
to their maternal grandparents these children have three
uncles and a number of aunts and cousins in the Seattle
area. Prior to this proceeding the children had spent their
entire summer vacation in Seattle in alternating years and
Helen’s family had visited her and the children in Greece
nearly annually. From the record it appears that the
children had spent 3 full months of summer vacation in
Seattle four different times, ie., these children each had
spent 12 full months of their young lives in Seattle.
Helen’s extended family is closely knit and stable and
Joseph and Nicholas have been an integral part of that
extended family since their births.
052 Division Two of this court has concluded that the
presence of “several supportive family members” establishes
a “significant connection” with the state as that term is
used in RCW 26.27.030(1)(b). See In re Marriage of Steadman,
36 Wash.App. 77, 79-80, 671 P.2d 808 (1983). I agree. In
Steadman, the petitioning wife, Susan Steadman, had been
born and raised in Washington and her mother and most of her
family resided here. Ms. Steadman went to Maine in 1976,
when she was 18 years old, to visit an aunt. There she met
and married Mr. Steadman. The couple resided in Maine. Their
child was born there in 1979. Shortly after the child’s
birth the parties separated. Susan Steadman immediately
returned to Washington with the infant child, where she
immediately petitioned for marital dissolution and custody
of the child. Mr. Steadman thereafter commenced custody
proceedings in Maine and challenged the Washington court’s
jurisdiction under the UCCJA. Although the Steadman court
was only required to construe the term “significant
connection” with respect to Ms. Steadman, there having been
no challenge to the trial court’s finding that the infant
child shared in the mother’s significant connection, it
logically follows that a child of such tender years would
share in his parent’s supportive family ties in this state.
053 In this case of Ieronimakis, however, the children
themselves were old enough to have developed their own
significant personal relationships with their supportive
family members here in Washington and it <* page 184> is
clear from the record that Joseph and Nicholas had in fact
developed those ties long before this action was filed. The
majority has sought to distinguish Steadman, in part by
characterizing the children’s relationship with their
maternal grandparents as a “minor relationship” of no
particular significance or importance in the lives of these
children.
054 The best evidence of the significance and importance to
the children of these family relationships is found in the
reports of the guardian ad litem, Ms. Gompf, and the
court-appointed evaluating pediatrician, Dr. Reichert.”
Joseph, then age 9, was asked by Dr. Reichert to name the
most important people in his life. He named his mother, his
brother Nicholas, his maternal grandmother, his maternal
grandfather, his three maternal uncles, all of whom reside
in Seattle, and three school chums in Seattle. Nicholas,
then age 8, responded to the same question in a separate
interview by identifying his mother, his brother Joseph, his
maternal grandparents, his three maternal uncles in Seattle
and some friends at his school in Seattle.
055 When the children were asked by the guardian ad litem
with whom they felt safe, each of them identified his
mother, his brother, his maternal grandparents and his
maternal uncles in Seattle.
056 Significantly, although the boys had lived with their
father for almost all of their lives and although they had
often visited with their paternal grandparents (during the
summer in alternating years) in Crete , neither their father
nor any of their paternal relatives was identified by these
children as among the most important people in their lives
or even as people with whom they felt safe. Instead, when
Joseph was asked by Dr. Reichert whether he would like to
live with his father, Joseph spontaneously burst into tears.
Joseph had a similar response when Dr. Reichert asked if lie
would like to visit his father and his paternal relatives in
Greece. Nicholas, when lie was asked these same questions by
Dr. Reichert expressed fear for his own safety and concern
that his paternal grandfather might hide him away in Crete.
DFN 9
057 Although each child wished to continue to have a
relationship with his father, each child simply wanted to
visit with his father in Seattle. DFN 10
058 The significant connection test recognizes the
socio-economic realities of the lives of women and men.
Helen, as is true of many married women, was totally
economically dependent upon her husband Markos. When the
marriage failed, Helen did what most women in her situation
would do. She returned to her family. She could not
otherwise survive economically and she enjoyed a close
relationship with her family.
059 As is reflected in the reports of the guardian ad litem
and the court-appointed evaluating physician, Helen and the
children were closely bonded. Markos and the children were
not nearly as closely bonded. Not only had Helen always
served as the children’s primary caretaker but also there
was a history of physical abuse of Helen and the children by
Markos.11 Although the majority makes light of the domestic
violence which Helen alleges occurred in Greece, both
children confirmed that they <* page 185> themselves had
been physically abused by their father and they did so in
their own individual words, in separate interviews with both
Dr. Reichert and the guardian ad litem, neither of whom
doubted that the children were being truthful. As night
follows day, under these circumstances it was to be expected
that when Helen left Greece she would return to her family
in Seattle and she would bring the children with her. Markos
clearly understood this, for he reached Helen by calling on
the telephone to her parents’ home on the day following her
departure with the children.
060 RCW 26.27.030(1)(b) was intended to preserve subject
matter jurisdiction for exactly such circumstances as these.
The Steadman court correctly understood the significant
connection test. The majority of the panel in the instant
appeal apparently does not understand the test, or perhaps
it is the evidence in this case which has not been fully
understood.
Substantial Evidence Test
061 The significant connection test does not stand alone.
It relates back to the question of whether it is in the best
interest of the child that a court of this state assume
jurisdiction because the child and at least one contestant
have a significant connection with this state and because
there is substantial evidence in this state concerning the
child’s present or future, care, protection, training and
personal relationships. (Italics mine.) RCW 26.27.030(1)(b).
This is so, even though the child’s home state is elsewhere
and even though the child may and in most cases will also
have a significant connection with the home state. There
also may be substantial evidence, inclusive of evidence of
the child’s past care, protection, training and personal
relationships, in that home state. Subject matter
jurisdiction is not lost merely because there is a home
state from which the child recently has been removed, even
unilaterally, by one parent, while the other parent remains
in the home state, so long as proceedings substantially in
conformity with the act have not yet commenced in the home
state. Both states may have subject matter jurisdiction, in
which event the state first asserting its subject matter
jurisdiction will proceed, unless the court of that state
determines to stay its proceeding because the other state is
the more appropriate forum. RCW 26.27.060; .070. Such a
determination will be discretionary, however, and not
mandatory. RCW 26.27.070; .080.
062 The majority appears to have confused apples with
oranges, so to speak, by confusing subject matter
jurisdiction with the discretionary determination of whether
to exercise that jurisdiction or whether to defer to the
concurrent subject matter jurisdiction of the home state.
Washington clearly has subject matter jurisdiction in this
case pursuant to RCW 26.27.030(1)(b) (as well as ch. 26.09
RCW). Greece clearly has concurrent subject matter
jurisdiction based upon its own laws as to jurisdiction. DFN
12
063 Even if the majority were correct in its analysis that
RCW 26.07.030(1)(b) must be applied based on significant
connections and substantial evidence in existence before the
custody petition is filed, as opposed to later when the
superior court is asked to make its determination, in this
case the Washington courts do have the requisite subject
matter jurisdiction. In this case the significant connection
and most of the relevant substantial evidence were in place
before the children were removed from Greece.
064 In the instant matter, the only relevant evidence which
actually was developed after the filing of the petition in
Washington was the evidence that both boys were happily
integrated into their new home and <* page 186> school
settings, that each boy had made friends at school whom he
counted among the most important people in his life, and
that each child had become bilingual (in that each spoke
only Greek before entering school in Seattle, whereas by the
time of the revision hearing each child was proficient in
English as well as in Greek). Even this evidence, although
it developed during the year which intervened between the
filing of the petition and the ruling on revision, was
relevant evidence in this state concerning the children’s
present and future care, protection, training and personal
relationships.” See Hudson v. Hudson, 35 Wash.App. 822,
830-31, 670 P.2d 287 (1983):
065 The significant connection test requires more than a
strictly quantitative analysis. The [UCCJA] was designed to
place the issue of custody in the forum most appropriate to
determine the best interests of the children. As explained
by the reporter for the Uniform Act who is recognized as a
leading authority on its provisions: “the most significant
evidence will have to come from the parents themselves….”
The Act is expressly concerned not only with the past care
of the children, but with their present and future care. To
this extent, the forum should have access to information
concerning the effect on the children of materially changed
circumstances.
(Italics partly mine; citations omitted.)
066 If a child has a significant connection in the state
where “best interest jurisdiction” is invoked, because of a
loving, closely knit and stable extended family located
there, there is also likely to be available in that state
substantial evidence concerning the child’s present or
future care, protection, training and personal
relationships, because of the very nature of those close
family ties. It is so in this case.
067 There was also present in this state, before the
petition was filed, ample evidence that if the ultimate
custody decision were to be made in Helen’s favor, the
children need not be deprived of their proud Greek heritage.
As the majority properly recognizes, that heritage is
important to the children’s past, present and future care
and development. What the majority fails to recognize is
that these children are not in an “either/or” situation with
respect to their Greek heritage. Helen shares that same
proud heritage, as does her extended family in Seattle. That
Seattle is blessed with a thriving Greek community is well
known to the courts of this area and to all knowledgeable
persons who reside in this area. The record reflects that
Helen’s extended family (whose surname is Nicoloudakis) has
always been actively involved in its Greek heritage. One of
the witnesses who was interviewed by the guardian ad litem
was Rev. Fr. A. Homer Demopulos, the pastor of St.
Demetrious Greek Orthodox Church in Seattle. Father
Demopulos had been the pastor at that church for 15 years
and he had known Helen’s extended family for all of those
years because of their involvement and activity in their
Greek Orthodox religion and in Seattle’s Greek community.
068 Helen herself was raised in Seattle strictly in accord
with traditional Greek values. She was chaperoned by her
family during her courtship with Markos and Markos was
required to ask Helen’s father for Helen’s hand in marriage.
069 As the record makes clear, there is substantial
evidence in Washington not only of the children’s American
heritage but also of their Greek heritage and this evidence
was in place long before the children were born, not to
mention long before Helen filed the instant proceedings.
070 It was not inappropriate for the superior court to
appoint the guardian ad litem and evaluating pediatrician
for the purpose of independently advising the court with
respect to the factors which the court was required to
consider under RCW 26.27.030(1)(b). Nor was it inappropriate
for the court to consider the information provided by those
court-appointees for the purpose<* page 187> of determining
whether these children and one contestant had significant
contacts in Washington and whether there was substantial
evidence in this state as to the children’s present and
future care, protection, training and personal
relationships. DFN 14
071 Notably, RCW 26.27.030(1)(b) does not require that
there be substantial evidence available in this state
concerning the children’s past care, protection, training
and personal relationships. Washington is not the children’s
“home state” as defined by the UCCJA. See RCW 26.27.020(5).
Nevertheless by its very terms, the act contemplates that
subject matter jurisdiction may exist, outside of the “home
state”. DFN 15
072 Although I agree with the majority that jurisdiction
pursuant to the UCCJA is to be determined as of the time an
action is commenced, it does not necessarily follow that the
facts relied upon by the superior court in determining
jurisdiction in this case came into existence after the
petition was filed or that such facts as were developed
after the petition was filed are not relevant to the
question of best forum. RCW 26.27.030(1)(b)(ii) requires the
court to determine whether there is substantial evidence
available in this state concerning the child’s present or
future care, protection, training and personal
relationships.
073 As was recognized by Division Two of this court in
Hudson v. Hudson, 35 Wash. App. at 831, 670 P.2d 287:
“The most significant evidence will have to come
from the parents themselves, from other persons
who might be entrusted with the care of the child,
and from those who can testify about the
competence of these persons as custodians.”
074 The Hudson court was quoting Brigitte M. Bodenheimer,
“The Uniform Child Custody Jurisdiction Act: A Legislative
Remedy for Children Caught in the Conflict of Laws,” 22
Vand.L.Rev. 1207, 1223 (1969). DFN 16 As the Hudson court
also recognized, in a situation where one parent removes the
children to that parent’s former home state where her
parents and other significant family members reside, while
the other parent remains in the children’s home state as
defined in the act, both states may have substantial
evidence – the home state as to the children’s past care and
the state to which the children have been removed as to the
children’s present care and their future care. Witnesses in
each state may have relevant information with respect to
each of the potential custodians. In such cases “it will be
difficult to decide which state has more of the relevant
evidence.” Hudson, 35 Wash.App. at 832 n. 9, 670 P.2d 287
(quoting Bodenheimer, supra, at 1222-23).
075 Both states will have subject matter jurisdiction in
these circumstances but under the act jurisdiction will not
be exercised in both states. Rather, the case will proceed
in the state where the petition is first filed, RCW
26.27.060, unless that state declines to exercise its
concurrent jurisdiction pursuant to RCW 26.27.070
(inconvenient forum) or RCW 26.27.080 (jurisdiction declined
by reason of conduct). See also Uniform Child Custody
Jurisdiction Act, 3 Commissioners’ Note, 9 U.L.A. 123 at
144-45 (1968).
076 In this case, it should be noted that there also was
available in Washington significant evidence as to the
children’s past care, protection, training and personal
relationships simply because “the most significant evidence
will have to come from the parents themselves,” Hudson, 35
Wash.App. 822, 831, 670 P.2d 287, and, one might add, <*
page 188> given the ages of these children, from the
children themselves through their court appointed
representatives, the guardian ad litem and the evaluating
pediatrician.
DISCRETIONARY DETERMINATIONS OF THE SUPERIOR COURT
077 Once subject matter jurisdiction is established, as it
was here, the question then arises of whether to exercise
that jurisdiction or whether to defer to the concurrent
jurisdiction of the “home state”, or, in this case, whether
to defer to the concurrent jurisdiction of the home nation,
Greece.
078 With respect to this decision, the issue is not which
of two competing parents is the best parent but rather which
of two competing forums is the best forum to determine the
all-important issue of the best interest of the child.
Although the majority concludes, at p. 178 of its opinion,
that there was no showing that the Greek courts were
incapable of determining the children’s best interests, the
real question, by the time of the revision hearing, was
whether the Greek courts were actually doing so. There was
an ample showing that the custody determinations which were
being made simultaneously in Greece were based on the
alleged blemishes on the characters of the respective
parents rather than on the needs of Joseph and Nicholas.
Indeed, although these children are closely bonded to their
mother, Helen was not awarded any visitation rights in the
Greek decree from which she appealed. Nor had the Greek
courts made any-effort to investigate the children’s wishes
and needs with respect to the issues of custody and
visitation.
079 In the initial, ex parte order granting temporary
custody to Markos, the Greek court determined that Markos
should have temporary custody in part because Helen was
“peevish and quarrelsome” from the first days of the
marriage and “what she was interested in and what she
admitted was constant demands, unbearable pressure for the
purchase of land and country houses …” After Markos was
awarded the children’s permanent custody following the trial
in Greece, Helen appealed and apparently prevailed, at least
temporarily, on the basis of pleadings which focused almost
entirely upon Markos’ shortcomings as a husband.
080 At p. 177 of the majority opinion, it is stated that
“if this mother and these children had come from Puerto
Rico, it could hardly be seriously argued that Washington
should not decline in favor of Puerto Rico.” The majority
goes on to argue that if Greece were a “‘state”‘ as is
Puerto Rico for the purposes of the UCCJA, Greece would be
the “‘home state’ and the proper place for the determination
of custody.” I disagree with the majority’s conclusion that
if we were dealing with a case identical to this one in
every respect except that the mother had removed the
children from Puerto Rico, or for the matter, from Ohio, it
would necessarily follow that the Washington court lacked
jurisdiction or should decline jurisdiction.
081 In the case of In re the Application of Felix C., 116
Misc.2d 300, 455 N.Y.S.2d 234 (Fam.Ct.N.Y.1982), the issue
was whether a Puerto Rican custody decree was entitled to
recognition and enforcement in the state of New York. Puerto
Rico is a “state” under both the UCCJA and the Parental
Kidnapping Prevention Act of 1980 (PKPA). The father had
obtained a divorce and custody of the parties’ only child
after the mother unilaterally removed the child to the state
of New York. Although there were additional reasons for not
recognizing and enforcing the Puerto Rican custody decree
(the decree was obtained without actual notice and
opportunity to be heard, the mother having been served by
publication), the New York court noted that both the UCCJA
and the PKPA speak in terms of sister-state recognition and
enforcement of “child custody determinations.” Felix C., 455
N.Y.S.2d at 240. The UCCJA and the Parental Kidnaping
Prevention Act of 1980 (PKPA) define “custody determination”
in almost identical terms. DFN 17 <* page 189>
However, one must also read into the definition
the statutory statement of purpose “that a
determination of custody and visitation is [to be]
rendered in the state which can best decide the
case in the interest of the child.”
082 There is eminent good reason for insisting on an
enlightened and expansive construction of the definition of
child custody determination. The rendering of a child
custody determination constitutes one of the most delicate,
challenging and ofttimes frustrating responsibilities
exercised by a trial jurist…. The sine qua non of a child
custody determination is that it must be based on the best
interests of the child. Implicit in this precept is the
necessity that the determination of best interests be made
at a plenary hearing with both sides afforded an opportunity
to present their case[s].
. . .
. . . This requirement goes hand-in-hand with the
best interests requirement because it is only in
the course of a full and plenary hearing on the
merits that a court can become cognizant of the
individual needs of a child, and evaluate the
various factors which determine best interests.
. . .
The Puerto Rican custody decree was not based on
the child’s best interests, and therefore was not
a “child custody determination” entitled to
enforcement and recognition.
083 (Italics partly mine; citations omitted.) Felix C., 455
N.Y.S.2d at 240-41.
084 In this case of Ieronimakis, by the time of the
revision hearing it was apparent that although both parents
were represented by attorneys in the Greek court proceedings
the primary evidence being presented there had little or
nothing to do with the best interests of Joseph and Nicholas
but rather with the alleged blemishes on Helen and Markos
and who had misled whom as to his and her respective
character at the time of the marriage. DFN 18 This is not
the kind of evidence upon which to base a decision on the
merits as to child custody as contemplated by the act.
085 There is no indication from the translations of the
Greek court documents contained in the record on appeal that
a guardian ad litem had been appointed in Greece to speak
for the children or that the wishes of the children were
even considered relevant in these proceedings.
086 It is inherent in the purposes of the UCCJA that the
state which can best determine the best interest of a child
be the state which makes the custody determination.
Ordinarily, that will be the state with which the child and
his family have the closest connection and where significant
evidence concerning the child’s care, protection, training
and personal relationships is most readily available. RCW
26.27.010(1)(c). This presupposes however that the
significant evidence will in fact be presented in that
state. If it will not be presented, the reason for the “home
state preference” does not exist, whether that “home state”
be one of the 50 states of the United States, or the
District of Columbia, or the Commonwealth of Puerto Rico, or
Greece. DFN 19
087 In the case of E.E.B. v. D.A., 89 N.J. 595, 446 A.2d
871 (1982), cert. denied, Angle v. Bowen, 459 U.S. 1210, 103
S.Ct. 1203, 75 <* page 190> L.Ed.2d 445 (1983), the New
Jersey court concluded that
[the] UCCJA does not contemplate blind obedience
to home state jurisdiction. The state to decide a
child custody dispute is not necessarily the home
state, but the one best positioned to make the
decision based on the best interest of the child.
Often the home state will also be the state with
the most significant contacts with the child.
[The] UCCJA, however, rejects a rigid rule vesting
jurisdiction automatically in the home state and
favors, instead, a more flexible approach.
. . .
A custody dispute is more than a jurisdictional
chess game in which winning depends on compliance
with predetermined rules of play. A child is not a
pawn. In exercising its discretion within the
confines of UCCJA and PKPA, a court should
consider not only the literal wording of the
statutes but their purpose: to define and
stabilize the right to custody in the best
interest of the child.
088 E.E.B., 446 A.2d at 879-80. I agree. In the case of
E.E.B., Ohio, the home state of the child in question, had
made a “custody determination” without holding a best
interest hearing. Despite requests, the Ohio court declined
to reopen its decree to grant a beat interest hearing or to
entertain any modification of that decree. Although the New
Jersey court considered the Ohio decree to be a “custody
determination,” compare Felix C., 455 N.Y.S.2d 234, the
court decided that the Ohio decree was subject to
modification in New Jersey under the PKPA and the section of
New Jersey’s UCCJA which is equivalent to Washington’s RCW
26.27.140(1), Ohio having “declined jurisdiction” by
declining to reopen or modify its decree. E.E.B., 446 A.2d
877, 880. An equally compelling argument can be made that a
decree which is not based on the best interest of the child
is not a “custody determination”. Further, where the issue
is which of two competing states should make the initial
custody determination, if there will be no “best interest”
determination in the home state, that state may be deemed to
have declined jurisdiction under the act.
089 In the case of Etter v. Etter, 43 Md.App. 395, 405 A.2d
760 (1979), the Maryland Court of Special Appeals determined
that the Maryland trial court had properly exercised its
“best interest jurisdiction” although Delaware was the home
state. In Etter, the mother, after several years of marital
strife, departed from the family home in Delaware, leaving
behind Mr. Etter and the parties’ 12 year old son Troy. A
year later Troy called his mother and pleaded with her to
come and get him and take him to reside with her in
Maryland. The mother did so, without prior notice to the
father, based on allegations by Troy that he was being
abused by his father. Both parents promptly commenced
custody proceedings in his and her respective state of
residence. The father’s petition was filed first but by then
the mother had already obtained an ex parte order for
temporary custody which was dated on a Friday, but which was
filed, along with her custody petition, on the following
Monday (her petition had been presented and her order had
been signed after the clerk’s office had closed for the
week-end). Based on the seemingly erroneous conclusion that
the mother’s petition had been “filed” first, DFN 20 the
Delaware court stayed its proceeding and the matter
proceeded in Maryland. The mother was awarded custody of
Troy. The father appealed, challenging Maryland’s subject
matter jurisdiction and arguing that, if there were subject
matter jurisdiction, the Maryland court should have
declined, in favor of the home state jurisdiction of
Delaware.
090 The Maryland court determined that there was best
interest subject matter jurisdiction, in that Troy and his
mother had significant connections with the state and there
was substantial evidence in Maryland as to Troy’s present
and future care, protection, training and personal
relationships.
091 With respect to the doctrine of clean hands (RCW
26.27.080), the court stated: <* page 191>
092 [T]his does not appear to be the typical case of a
parent unilaterally removing a child from one state to
another. In this case Troy was not snatched by a parent. He
initiated the call for help to his mother to escape what now
can be readily perceived as a[n] intolerable situation.
Etter, 405 A.2d at 764.
093 With respect to forum non conveniens (RCW 26.27.070),
although the court agreed that Delaware was definitely the
home state, that did not end the inquiry. Rather, the
Maryland trial court carefully weighed and considered the
appropriate statutory factors, which is exactly what it was
supposed to do, and there was, therefore, no abuse of
discretion. Etter, 405 A.2d at 765-66.
094 With this background, I now turn specifically to the
doctrines of clean hands and forum non conveniens in this
matter of Ieronimakis.
Doctrine of Clean Hands
095 RCW 26.27.080 provides in relevant part that:
(1) If the petitioner for an initial decree has
wrongfully taken the child from another state or
has engaged in similar reprehensible conduct the
court may decline to exercise jurisdiction for
purposes of adjudication of custody if this is
just and proper under the circumstances.
(Italics mine.)
096 I first note that this section relates to the court’s
discretionary determinations. So long as the trial court
exercised its discretion based on tenable grounds and for
tenable reasons, this appellate court has no business
substituting its judgment for that of the trial court, even
if we, on the same evidence, may have decided the issue
differently. DFN 21
097 Here, Helen’s hands may not have been absolutely
spotless, but they were far from “unclean,” given the
substantial evidence of physical abuse of Helen and the
children by Markos, not to mention the substantial evidence
of alcohol abuse by Markos. Had Helen not removed the
children from Greece when she finally had taken all the
abuse that she personally found tolerable, she perhaps would
have been criticized for removing herself from the family
home, while abandoning her children. Instead, she is
criticized by the majority for removing the children in
violation of Markos’ rights. Majority opinion, at 179. I
point out that Markos has no right to abuse his children,
and no right to abuse Helen, at least not under Washington
law. DFN 22 The majority does not find the abuse suffered
by Helen and the children to be “overwhelming”. Majority
opinion, at 177-178. Helen did find the abuse to be
“overwhelming”. So did young Joseph, who spontaneously burst
into tears when asked if be would like to live with his
father. Nicholas was more circumspect, but he, too, verified
that he had been physically abused and he expressed concern
for his own safety, if ever he should be required to visit
his father in Greece, let alone reside there permanently.
098 I know well that my colleagues on this panel ordinarily
are sensitive to the needs of women and children. In this
instance, however, I believe the majority has fallen into
the trap of basing its decision, at least in part, on the
preconceived notion that because the violence in this family
was not “overwhelming” (in the eyes of the majority), it was
not a proper basis for Helen’s decision to remove the
children from Greece and flee to Washington. But see Gender
& Justice in the Courts, Final Report of the Washington Task
Force on Gender and Justice in the Courts, at 18 (1989): <*
page 192>
b. GENDER-BIASED BELIEFS AND MYTHS
Societal attitudes towards the problem of domestic
violence have long reflected gender bias. Some of
these gender-biased beliefs (and responses to
them) have been identified by the National
Institute of Justice and are described here as
myths” about domestic violence.
1) The belief that domestic violence is a private
“family matter”. The belief that the sanctity of
the family is more important than addressing the
violent, often criminal, behavior is false. A man
has no right under existing law to beat his wife.
This type of behavior constitutes a crime.
2) The belief that domestic violence is usually
precipitated by the victim[‘] provocations. This
myth stems from a belief that, on some level, men
still have the right to chastise their wives for
behavior that men do not like.
3) The belief that she must like it or she would
leave. Battered women face enormous pressures to
remain in an abusive relationship including
economic dependency, fear of increased violence,
pressure to “keep the family together” from the
church, family, and friends. This myth denies the
role the larger society plays in maintaining the
violent relationship, and not giving the batterer
a consistent message that the violent behavior is
unacceptable. These gender biased beliefs and
myths are still operating in the judicial system’s
handling of domestic violence.
099 I find no requirement in the law that Helen should have
waited to remove the children from Greece until the physical
abuse became “overwhelming” not only to to her but also to
the majority of this court. Certainly the physical abuse
described by Helen and the children did not rise to the
level of felony assault. Nevertheless, domestic violence
tends to escalate. Helen overcame enormous cultural
pressures to remain in an abusive relationship. She left
because she did not “like it”, for herself or for tier
children. She should be commended and not chastised.
100 Under RCW 26.27.080 a “wrongful” removal is the
equivalent of “reprehensible conduct”. Helen’s conduct did
not rise to the level of “reprehensible”. Even if it had,
the determination to decline to exercise jurisdiction on
that basis is discretionary and must be “just and proper
under the circumstances.” RCW 26.27.080(1).
101 Our Supreme Court had occasion to discuss the clean
hands doctrine under similar circumstances to those present
in this case, in the case of In re Marriage of Verbin, 92
Wash.2d 171, 595 P.2d 905 (1979). Verbin was decided after
Washington adopted the UCCJA, and although the uniform act
was not in effect at the time of the trial, so that the
Supreme Court did not base its decision on the act, the
Supreme Court specifically noted that its decision would be
no different if the UCCJA had been in effect at the time of
the trial. Verbin, 92 Wash.2d at 178 n. 1, 595 P.2d 905.
102 In Verbin the parties had lived in Maryland with their
two children for 5 years. After a period of serious marital
discord the mother, without telling the fattier of tier
intentions, took the children and came to Washington to live
near tier parents, brother and sister, all of whom resided
here. The mother had become concerned that the parties’
unhappy marital relationship would adversely affect the
children.
103 Several weeks later the father came to Washington,
found the children playing outdoors, and took them back to
Maryland, without notifying the mother.
104 A week later, the mother returned to Maryland in an
attempt to find both children and bring them back to
Washington. She was successful in locating one child but not
the other. Fearing that the fattier would stop her if she
waited any longer, the mother then left with the one child
and returned to Washington, where she commenced marital
dissolution proceedings. She sought custody of both
children.
105 The father appeared promptly in the Washington
proceedings and at first lie made no effort to contest
jurisdiction. Later, after receiving an unfavorable family
court investigation report the father did <* page 193>
challenge jurisdiction, arguing unclean hands and forum non
conveniens. DFN 23
106 Under Washington law prior to the adoption of the
UCCJA, a parent who brought a child into Washington in
violation of a valid custody decree could not establish a
lawful domicile for the child in Washington. The Washington
“clean hands” doctrine was thus based on domicile of the
child and was mandatory. Verbin, 92 Wash.2d at 179, 595 P.2d
905. After the adoption the UCCJA, removal of a child to
Washington may be “wrongful” whether or not in violation of
a valid custody decree, but the trial court may nevertheless
exercise its discretion to retain jurisdiction. Verbin, 92
Wash.2d at 179, 595 P.2d 905.
107 In Verbin, the mother brought the children to
Washington at a time when she was lawfully entitled to do so
and so there was no violation of the then-mandatory clean
hands doctrine. Because the UCCJA had, by the time of the
Verbin decision, been adopted in Washington, the Supreme
Court also addressed the provisions of 8 of the uniform
act, ie., RCW 26.27.080(1):
We note, however, that even under section 8 of the
Uniform Act our court would not have been required
to decline jurisdiction. Section 8 contemplates
consideration of all relevant facts and
circumstances, and the exercise of discretion by
the trial court to determine what is “just and
proper under the circumstances.” In this case [the
mother] justifiably feared for the emotional
well-being of her children as well as her own
physical and emotional safety, if they stayed in
the Maryland home. She fled to the comfort of her
own parents and siblings, who were also able to
extend security and love to her children. The
trial court, in the exercise of its discretion,
could well have found her conduct was not wrongful
and did not require it to decline jurisdiction
under the Uniform Act.
Verbin, 92 Wash.2d at 180, 595 P.2d 905.
108 Although dicta, the Supreme Court’s analysis was
intended to provide guidance to the courts of this state in
view of the then-recent enactment of the UCCJA. The Supreme
Court’s analysis should govern this appeal. In this case of
Ieronimakis the issue is directly before us and should be
decided in Helen’s favor. I find no abuse of discretion in
the trial court’s decision to retain jurisdiction under RCW
26.27.080(1).
FORUM NON CONVENIENS
109 RCW 26.27.070 contains a non-exclusive list of factors
to be considered by a trial court in making its
discretionary determination if whether to exercise
jurisdiction or to defer to another more convenient forum.
DFN 24 I find no abuse of discretion in the trial court’s
decision to retain jurisdiction under RCW 26.27.070 because,
although Greece was the home state and certainly had had a
closer connection with Markos and the children, the whole
focus of the custody proceedings in Greece was directed not
at the best interests of Joseph and Nicholas but at the
shortcomings of Helen and Markos. Further, the children and
Helen clearly had a significant connection with Washington
and there was substantial evidence available in Washington
as to the <* page 194> children’s past, present and future
care, protection, training and personal relationships. The
Washington court stood ready to address the best interests
of the children. It was in the best interests of these
children for Washington to exercise its best interest
jurisdiction because the overriding purpose of the act is
that the custody determination be made in the jurisdiction
which can best determine the best interests of the children.
Regardless of any other factor, this simply requires that
the attention of the deciding court be focused upon the
needs of the children. While we must not fall into the trap
of a “cultural superiority” mindset in these matters, we
cannot ignore the simple fact that be it Greece or Puerto
Rico or Ohio, if no “best interest hearing ” will take place
in the home state, and if there is “best interest
jurisdiction” in Washington, it is the duty of the
Washington courts to exercise that jurisdiction.
110 Again, I find support for this conclusion in Verbin.
There the Supreme Court concluded, under circumstances which
are very similar to the present appeal, that it would have
been an abuse of discretion for the trial court to have
declined to exercise jurisdiction. In Verbin, not only were
the Washington proceedings the first to be commenced, but
also the important witnesses relating to the child’s welfare
were in Washington-her teacher, the family court
investigator, the child’s psychiatrist, her friends and
relatives-were in this state. DFN 25 Although some of the
same evidence probably could have been presented in Maryland
(the Washington family court investigation report, for
example), in fact the Maryland court had never been
presented with that evidence and the Maryland court had
conducted no investigation of its own. Finally, by
vigorously participating in the Washington proceedings the
father had demonstrated his financial ability to litigate in
Washington. By way of contrast, the mother had very limited
financial means (and although she was represented by a
lawyer in Maryland she could not afford to personally attend
the trial in that state). Verbin, 92 Wash.2d at 180-81, 595
P.2d 905. Under the very similar circumstances of
Ieronimakis, it was not an abuse of discretion for the trial
court to retain jurisdiction under the doctrine of forum non
conveniens, and, in fact, had the revision judge ruled
otherwise, given all the circumstances of this case, and
based upon Verbin, I would vote to reverse.
HAGUE CONVENTION
111 I agree with the majority that the Hague Convention
does not control this appeal, in that Greece has not
ratified the Convention. I disagree that the majority
decision is consistent with the purposes and provisions of
the Hague Convention. Helen’s removal of the children was
not “wrongful”. Further, even if a child has been
“wrongfully” removed, article 16 of the Hague Convention
does not deprive the state where the “wrongfully” removed
child is found of jurisdiction to decide the custody dispute
on its merits, if the court where the child is found has
determined that to return the child would expose him or her
to a grave risk of psychological harm or otherwise place the
child in an intolerable situation. From the evidence in this
case, it is clear that to return Joseph and Nicholas to
Greece would expose them to a grave risk of psychological
harm or otherwise place them in an intolerable situation.
Not only is there substantial evidence that the children had
been physically abused by Markos, but also there was a grave
risk that to return the children to Greece would be to
deprive the children of their mother, perhaps for all the
remainder of their childhoods. Both Dr. Reichert and Ms.
Gompf concluded that this would have a disastrous
psychological effect on both children.
112 In the proceeding below, the guardian ad litem (who is
an attorney) reviewed the provisions of Greek law and the
records of <* page 195> the Greek court proceedings which
have been included with the record for this appeal. The
guardian also interviewed Helen, Markos, the children,
Markos’ sister and numerous other individuals who are well
acquainted with this family. The guardian reported to the
court her concerns that if the children were to be returned
to Greece there was a grave risk that Helen’s contact with
the children would be terminated.
113 Markos made no convincing effort below, nor has be in
this appeal, to rebut that concern. Although at this court’s
last notice Helen bad prevailed in Greece, at least
temporarily, by virtue of her appeal, I find it significant
that the decree from which she appealed provided no
visitation rights to Helen. DFN 26
114 I conclude that to return the children to Greece would
place them in an intolerable situation, given the history of
domestic violence, given these children’s close bonding with
their mother and given the lack of any assurance that to
return the children to Greece will not cause them to lose
the companionship of their mother, perhaps for all of the
remainder of their childhoods. Any such loss of their
mother’s companionship would irrefutably cause these
children grave psychological harm. The majority has not
addressed how Helen might enforce visitation rights in
Greece in the absence of any decree, either here or in
Greece, which grants such rights. If the Hague Convention
had been in effect between Greece and the United States at
the relevant time, Washington still would have had
jurisdiction to proceed on the merits.
UNDECIDED ISSUES
115 The majority declines to address Markos’ objection to
the parenting plan, but then proceeds to point to some of
the provisions of the plan in defense of the majority
decision as to jurisdiction. DFN 27 Majority opinion, at
178. Nevertheless, there is substantial evidence to support
the restrictions upon Markos’ visitation in Seattle. DFN 28
Those restrictions are in accord with the recommendations of
the guardian ad litem, who had personally interviewed
Markos, and numerous other individuals who know Markos well
and who was concerned that there be no opportunity for
Markos to return the children to Greece in violation of the
parenting plan. These are sensible precautions. If
temporarily giving up one’s passport places one in the same
category as a “criminal on bail”, majority opinion, at 178,
then Markos, at least, is no worse off than are tourists in
many countries in Europe who commonly are required to leave
their passports with the desk clerk at their hotels, until
the time of their departure. In some countries a visitor
must leave his or her passport with the customs officials
until he or she leaves the country. Not only is this no
great hardship, but also, by the terms of the parenting
plan, if the children wish, they may visit Markos in Greece,
without supervision, when Joseph is 14 and Nicholas is 13,
so long as Markos gives assurances that the children will be
returned. DFN 29
CONCLUSION
116 I would affirm the superior court’s jurisdictional
rulings and the provisions of the parenting plan. I would
reverse only the <* page 196> ruling as to the imposition of
a share of the fees of the guardian ad litem and the
evaluating pediatrician against Markos, since the superior
court expressly found it had no personal jurisdiction over
Markos. The remainder of Markos’ assertions are without
merit.
FOOTNOTES
———————
1. Markos also challenged the award of one-half the guardian
ad litem fees. Since Helen has conceded this point we need
not address the issue. It is unnecessary to discuss the
reserved issues and Markos’s other challenges in light of
our disposition in this case.
2. Markos also sought, obtained and exercised rights of
temporary visitation with the children in Seattle during the
pendency of the proceedings below.
3. The dissent’s distrust and criticism of the Greek
judicial proceedings is somewhat surprising. In fact, even
without the benefit of Helen’s presence, the Greek courts
reached the same conclusion as to custody that the dissent
seems to believe could only properly be addressed by the
Washington court.
4. At oral argument for the Washington appeal, the attorneys
confirmed that Helen had at least temporarily prevailed on
appeal in Greece. This court has not been provided with a
copy of the Greek appellate court’s order of September 25,
1988, but the order was referred to in Helen’s civil appeals
statement. Helen has not argued that the Washington appeal
has become moot, and Markos has continued his vigorous
prosecution of this Washington appeal. We assume that Markos
has likewise appealed the order by which Helen appears to
have at least temporarily prevailed in Greece. If there has
been an ultimate and final decision in Greece since the time
of oral argument, this court has not been advised of the
outcome.
5. RCW 26.27.
6. “State” means “any state, territory, or possession of the
United States, the Commonwealth of Puerto Rico, and the
District of Columbia.”
7. “(1) A court of this state which is competent to decide
child custody matters has jurisdiction to make a child
custody determination by initial or modification decree if
the conditions as set forth in any of the following
paragraphs are met:
“(a) This state (i) is the home state of the child at the
time of commencement of the proceeding, or (ii) had been the
child’s home state within six months before commencement of
tile proceeding and tile child is absent from this state
because of his removal or retention by a person claiming his
custody or for other reasons, and a parent or person acting
as parent continues to live in this state; or
“(b) It is in the best interest of the child that a court of
this state assume jurisdiction because (i) the child and his
parents, or the child and at least one contestant, have a
significant connection with this state, and (ii) there is
available in this state substantial evidence concerning the
child’s present or future care, protection, training, and
personal relationships; or
“(c) The child is physically present in this state and (i)
the child has been abandoned or (ii) it is necessary in an
emergency to protect the child because he has been subjected
to or threatened with mistreatment or abuse or is otherwise
neglected or dependent; or
“(d)(i) It appears that no other state would have
jurisdiction under prerequisites substantially in accordance
with paragraphs (a), (b), or(c) of this subsection, or
another state has declined to exercise jurisdiction on the
ground that this state is the more appropriate forum to
determine the custody of tile child, and (ii) it is in the
best interest of tile child that this court assume
jurisdiction.
“(2) Except under subsection (1)(c) and (d) of this section,
physical presence in this state of the child, or of the
child and one of the contestants, is not alone sufficient to
confer jurisdiction on a court of this state to make a child
custody determination.
“(3) Physical presence of the child, while desirable, is not
a prerequisite for jurisdiction to determine his Custody.”
8. We do not find In re the Application of Felix C, 116
Misc.2d 300, 455 N.Y.S.2d 234 (Fam.Ct. N.Y.1982), persuasive
since, as the dissent acknowledges at 188, the Puerto Rican
custody decree was obtained without proper notice. In any
case, the New York court acknowledged that had the Puerto
Rican court given the mother proper notice and Puerto Rican
law allowed for examination of the childrens best interests,
the “court would reach a different conclusion.” Felix, 455
N.Y.S.2d at 240, footnote 4.
9. In re Marriage of Steadman, 36 Wash.App. 77, 671 P.2d 808
(1983), is distinguishable since, as the dissent
acknowledges at 183, there the court could not, and did not,
address the significant connections test as it applies to
children that have significant connections with a foreign
state where substantial evidence exists concerning their
care. It is also significant that in that case the foreign
jurisdiction, Maine, declined to exercise jurisdiction in
favor of Washington.
10. “The [Parental Kidnaping Prevention Act of 1980]
specifically establishes a home state priority by precluding
use of the significant connection as a basis for
jurisdiction in the initial decree setting if there is a
home state elsewhere that has not declined to exercise its
jurisdiction. 28 U.S.C. 1738A(c)(2)(B). The PKPA’s
explicit home state priority arose after several years of
experience under the UCCJA indicated that the significant
connection basis was being used by the courts as a loophole
to exercise jurisdiction upon slight contact with the
child.” 2 Washington Family Law Deskbook, 47.6(3) (1989).
11. The dissent, at 182, suggests there was “substantial
evidence” of abuse but no party, or the dissent, suggests
there was sufficient evidence of abuse to establish
jurisdiction under RCW 26.27.030(1)(c) to protect the
children. If the facts supported such a finding, which they
do not, the UCCJA has provided an adequate mechanism to find
jurisdiction and we should not manipulate the other
provisions to accomplish this task. In any case, the dissent
reaches its conclusion without the benefit of all the
parties versions of events and refuses to acknowledge the
Greek courts could determine the true nature of the abuse
after hearing from both parties.
12. As the trial court recognized this raises a real
opportunity for “brain washing” the children. The conduct of
the mother and maternal grandparents when the father was
here suggest a ruthless effort to destroy the father/child
relationship.
13. The dissent repeatedly makes the unwarranted assumption
the Greek courts will not consider the best interests of the
children, despite the direct assurances from Greek
authorities. While the dissent freely criticizes the
conclusions of the Greek trial decree, we think it somewhat
ironical that the Greek Court of Appeals has awarded custody
of the children to Helen and will allow them to stay in the
United States.
14. RCW 26.27.070(3) provides that:
“In determining if it is an inconvenient forum, the court
shall consider if it is in the interest of the child that
another state assume jurisdiction. For this purpose it may
take into account the following factors, among others:
“(a) If another state is or recently was the child’s home
state;
“(b) If another state has a closer connection with the child
and his family or with the child and one or more of the
contestants;
“(c) If substantial evidence concerning the child’s present
or future care, protection, training, and personal
relationships is more readily available in another state;
“(d) If the parties have agreed on another forum which is no
less appropriate; and
“(e) If the exercise of jurisdiction by a court of this
state would contravene any of the purposes stated in RCW
26.27.010.”
15. “Jurisdiction declined by reason of conduct. (1) If the
petitioner for an initial decree has wrongfully taken the
child from another state or has engaged in similar
reprehensible conduct the court may decline to exercise
jurisdiction for purposes of adjudication of custody if this
is just and proper under the circumstances.”
16. “‘Abductions and reabductions of children remains
perhaps the most serious problem confronting practitioners
and the courts, not to mention the child, the innocent
victims of the ongoing struggle between embattled and
embittered parents.”‘ Goodman v. Goodman, 383 Pa.Super. 374,
556 A.2d 1379, 1388 (1989) (quoting 4 McCahey, Caufman,
Kraut & Zett. Child Custody & Visitation, Law & Practice,
4.08[l] at 4-150 (1988)).
17. The Hague Convention may be found as Sen. Treaty Doc.
99-11, 99th Cong. 1st Sess. (1985) and at 51 Federal
Register 10498-10502 (1986).
18. The United States ratified the Hague Convention on April
29, 1988. Implementing legislation became effective on July
1, 1988. 42 U.S.C. 11601-11610. Greece, however, had not
ratified or implemented the Hague Convention at the time of
the proceedings below, nor at the time this case was briefed
and argued on appeal.
DISSENT FOOTNOTES
———————–
1. Markos is not seeking to enforce a Greek custody decree,
rather, he is challenging the jurisdiction of the Washington
courts to make an initial custody determination. Therefore,
only the first sentence of RCW 26.27.230 applies to this
proceeding.
2. The Hague Convention was intended to govern jurisdiction
over international custody disputes. The Hague Convention,
in article 16, specifically addresses jurisdiction in a
situation where to return a child to his home nation would
present a grave risk of psychological harm to the child or
otherwise place the child in an intolerable situation. See
discussion infra.
3. Where both countries which are involved have ratified the
Hague Convention, the Convention must also be considered. In
this case, the Hague Convention does not apply. Although the
United States has ratified the Convention, insofar as is
relevant to this appeal, Greece has not.
4. Here, Helen’s petition was the first to be filed, so RCW
26.27.060(1) does not require that the Washington proceeding
be stayed. Further, by the time of the revision hearing it
was apparent that Greece was not proceeding “substantially
in conformity with this chapter.” See RCW 26.27.060(1) and
discussion infra.
5. Webster’s Third New Int’l Dictionary (1976) defines
“abduct” as “to carry (a person) off by force: Lead (a
child) away wrongfully”. Webster’s, at 3.
6. Compare RCW 26.27.030(1), .080(2), .130, and .140(1) and
(2). Where the UCCJA governs the issue of subject matter
jurisdiction, rather than ch. 26.09 RCW alone, subject
matter jurisdiction may be acquired even if the child is
brought into Washington or retained in Washington in
violation of the decree of a sister state (so long as the
Parental Kidnapping Prevention Act of 1980 (PKPA) does not
otherwise pre-empt the issue). See also In re Marriage of
Verbin, supra.
7. It should be pointed out that Markos has not argued on
appeal that the Parental Kidnapping Prevention Act of 1980
(PKPA), 28 U.S.C. 1738A, is applicable to these
proceedings, and indeed an examination of that act reveals
that it is not applicable to international custody disputes.
See also Dare v. Secretary of the Air Force, 608 F.Supp.
1077 (D.Del. 1985), aff’d 787 F.2d 581 (3rd Cir.1986), cert.
denied, 479 U.S. 846, 107 S.Ct. 166, 93 L.Ed.2d 104 (1986)
(PKPA not applicable to mother’s effort to enforce Delaware
family court decree through military authorities where
father refused to obey state court’s order to return child
from Clark Air Base in Republic of the Philippines where
father was stationed. The Philippines is a sovereign nation
and not “state” as defined in the PKPA). The definition of
“state” in the PKPA is the same as the definition of “state”
in the UCCJA. See 28 U.S.C. 1738A(b)(6) and RCW
26.27.020(10).
8. Dr. Reichert specializes in child behavior. Ms. Gompf is
an attorney.
9. Although the majority apparently suspects that the
children’s responses to these inquiries were the result of
“scripting”, both Dr. Reichert and the guardian ad litem
reported that they did not believe this to be the case.
Although the revision judge recognized the potential for
scripting in these kinds of matters the judge did not find
that scripting had occurred here. The failure to make a
finding on a litigated issue (and this issue was litigated
below) is the equivalent of a finding against the party who
bore the burden of proof of that issue. Here, Markos raised
the issue and it was his burden of proof. See, eg., Taplett
v. Khela, 60 Wash.App. 75J., 760, 807 P.2d 885 (1991).
10. That each child wished to continue to have a
relationship with his father, albeit from a position which
each child considered “safe”, belies the allegation of
“scripting”.
11. Contrary to the assertion of the majority at 178 n. 11,
Markos was heard from and did generally deny the allegations
of physical abuse. Markos submitted several affidavits and
he was personally interviewed by the guardian ad litem.
12. Greece, however, insofar as the record before this court
reveals, does not recognize any doctrine equivalent to forum
non conveniens. Instead, under Greek law, Article 622,
entitled International Jurisdiction, “[t]he Greek courts
have jurisdiction over any legal proceedings … if the
father or the mother or the child are Greek citizens even if
at the present time they do not live or reside in Greece nor
they had ever lived or resided in Greece in the past”.
(Italics mine.) Foreign judgments are enforceable in Greece
if, on the basis of Greek laws, the court in the foreign
country where the decision was initially issued did have
jurisdiction and the decision does not contradict any
decision by the Greek court on the same case.
13. Furthermore, the delay between the filing of the
petition and the eventual ruling on the motion for revision
is attributable to both parties. Neither Helen alone nor
the children should be penalized for the delay.
14. Although the reports of the guardian ad litem and court
appointed evaluating pediatrician contained information
which also was relevant to the ultimate determination of the
custody issue, I find no indication in the record that the
revision judge confused the issue of “best parent” with the
issue of “best forum”.
15. The provisions of RCW 26.27.030(1) are written in the
disjunctive. The state may assert subject matter
jurisdiction if it is the home state or if it is in the best
interest of the child for the state to assume jurisdiction
because of significant connections and substantial evidence
or if any one of the other stated bases for subject matter
jurisdiction is present.
16. Bodenheimer is recognized as a leading authority on the
UCCJA.
17. See 28 U.S.C. 1738A(b)(3) and RCW 26.27.020(2)
(custody determination means a court decision and court
orders providing for custody or visitation of a child).
18. Helen did not personally appear at the trial in Greece.
Markos had caused criminal charges to be instituted against
Helen in Greece. She was subject to arrest if she were to
have appeared for the trial in Greece. The basis for the
criminal charges is unclear from the record for this appeal.
19. Cf. Wolf v. Boeing Co., 61 Wash.App. 316, 8 10 P.2d 943,
review denied, 818 P.2d 1098 (Wash. 1991). One of the
factors to be considered in making a forum non conveniens
determination is whether the substantive law of the foreign
forum is “adequate”, ie., whether basic justice can be
obtained in that forum.
The substantive law of the foreign forum is presumed
adequate unless the plaintiff makes some showing to the
contrary, or unless conditions … otherwise known to the
court, plainly demonstrate that the plaintiffs are highly
unlikely to obtain basic justice therein.
61 Wash.App. at 323, 810 P.2d 943. “Basic justice” under the
UCCJA requires a plenary hearing on the merits, ie., a
determination based on the child’s best interest.
20. See RCW 26.27.060(1).
21. Although the determinations as to jurisdiction and
whether to exercise or decline to exercise jurisdiction were
primarily based upon affidavits and written reports, the
superior court had the benefit of at least two hearings at
which all parties were present and the trial court heard
directly from the guardian ad litem at the time of the
revision hearing. This court has not had that benefit.
22. There is no evidence in the record for this appeal as to
Greek law on these subjects.
23. In the meantime, the father had commenced divorce
proceedings in Maryland. Maryland had adopted the UCCJA. The
father filed a false affidavit in Maryland in which he
claimed there was no other custody proceeding pending. In
the Maryland decree the father was awarded custody of both
children. In the Washington proceeding the mother eventually
was awarded custody of the child she had been able to locate
and bring back to Washington. The father was awarded custody
of the other child. The father appealed. The Washington
Supreme Court granted direct review.
24. The non-exclusive list of factors is found at RCW
26.27.070(3):
(a) If another state is or recently was the child’s home
state;
(b) If another state has a closer connection with the child
and his family or with the child and one or more of the
contestants;
(c) If substantial evidence concerning the child’s present
or future care, protection, training, and personal
relationships is more readily available in another state;
(d) If the parties have agreed on another forum which is no
less appropriate; and
(e) If the exercise of jurisdiction by a court of this state
would contravene any of the purposes stated in RCW
26.27.010.
25. Notably, most of this important evidence had been
developed after the mother removed the child to Washington.
See discussion, supra, re best interest subject matter
jurisdiction.
26. By way of contrast, the Washington decree provided
Markos with visitation rights.
27. Markos’ objections to the parenting plan do not relate
to jurisdiction. In fact, I question Markos’ right to appeal
any issues except subject matter jurisdiction, forum non
conveniens and clean hands, since he specifically limited
his appearance below to the issue of jurisdiction. The
parenting plan was part of a default decree. There has been
no motion to quash the order of default. Markos apparently
believed that he could not preserve his jurisdiction issues
if he were to litigate on the merits. This was an incorrect
assumption, but nevertheless, having chosen to allow entry
of a default decree, Markos may not appeal the provisions of
the parenting plan without first moving to quash the order
of default.
28. See RCW 29.09.191.
29. Compare this with the ruling of the Greek trial court,
which awarded Helen no visitation rights whatsoever. If
Markos were eventually to prevail in the Greek appellate
courts, that same decree would be reinstated.
COMMENT
BY
WILLIAM M. HILTON, CFLS
Fellow, International Academy of Matrimonial Lawyers
24 Dec 1997
A basic view of the decision and the dissent is that the
marjority understand that the principal purpose of the UCCJA
is to prevent child abduction, whereas, with due respect,
the dissent strains to avoid this conclusion.
This case is very similar to Plas v Superior Court (Plas)
(Cal.App. 3 Dist. 1984) 155 Cal.App.3d 1008 [202 Cal.Rptr.
490]. The Plas court, in reversing the trial court on
identical facts, held that to “. . . sustain the trial
court’s finding of jurisdiction would simply invite the
assumption of jurisdiction in cases based on the most meager
of contacts with this state and lead to the emasculation of
a statute designed to limit, not proliferate, the instances
where jurisdiction could be assumed.”
The dissent simply misses the point of the UCCJA: It does
not decide best interets of the child but points to the
place where the best interests would be determined. In that
sense it is similar to The Convention on the Civil Aspects
of International Child Abduction, done at the Hague on 25
Oct 1980 [The Convention].
The dissent seems to argue that the removal of the child
from Greece was not wrongful because there was no order as
to custody at the time of the removal. The Supreme Court of
Alaska had the following to say on this issue:
We conclude that for conduct to be wrongful or
similarly reprehensible, it is not necessary that
a child be taken in violation of an outstanding
order or decree, nor is it a defense that no order
or decree has been entered. It is sufficient when
the conduct is “so objectionable that a
court…cannot in good conscience permit the party
access to its jurisdiction.” Id. See Williams v
Zacher (1978), 35 Or.App. 129 [529 P.2d 91, 94].
Stokes v Stokes (Alaska 1988)
751 P.2d 1363, 1366
Here one could argue that because of the allegations of
abuse by the Father, the Mother was justified in removing
the children from Greece. This assumes, however, that the
Greek courts cannot or will not protect the children.
Friedrich v Friedrich (6th Cir. 1996) 78 F.3d 1060, 1069.
It would be presumptuous and offensive in the extreme, for
the Washington court to conclude that the wife and the
children are not capable of being protected by the Greek
Courts or that relevant Greek authorities would not enforce
protection orders which are made by the Courts. Marriage of
Murray and Tam, Director of Family Services (ACT) (1993) 16
Fam LR 982.
The dissent further argues that because Greece did not hold
a “best interest” hearing in the same way that a similar
hearing would be held in Washington, that Greece had somehow
“forfeited” its primary right of custody. The dissent then
focuses on the pleadings in the Greek court where the
parties attack the character of one another. The dissent
then discounts the finding by the Greek courts of the
unfitness of the parents as a basis of awarding custody.
But the parents are the ones that are going to raise the
child and it is not unreasonable to hold that a competent,
fit parent will properly raise a child whereas an unfit
parent would not. While this means of determining which is
the better parent to have custody may not be the way that
Washington State conducts such a hearing, it is not an in
inherently unreasonable or unworkable method. Different,
yes but unreasonable, no.
Both the majority and the dissent discuss the effect of
whether or not Greece can be considered a “state” under the
UCCJA. This issue has been discussed in many cases and the
significant majority conclude that “state” includes foreign
countries. Tiscornia v Tiscornia (Ariz.App. 1987) 154 Ariz.
376 [742 P.2d 1362, 1362-1363]; In re Stephanie M. (Cal.
1994) 7 Cal.4th 295, 310; Miller v Superior Court of Los
Angeles Cty. (Cal. 1979) 22 Cal.3d 923, 928 [151 Cal.Rptr.
6, 8; 587 P.2d 823]; Zenide v Superior Court (Ignaccolo)
(Cal.App. 2 Dist. 5 Div. 1994) 22 Cal.App.4th 1287,
1293-1294; In re Marriage of Arnold (Cal.App. 1 Dist. 1990)
222 Cal.App.3d 499, 503 [271 Cal.Rptr. 624, 626]; In re
Marriage of Malak (Cal.App. 6 Dist. 1986) 182 Cal.App.3d
1018, 1025 [227 Cal.Rptr. 841, 846]; Plas v Superior Court
(1984) 155 Cal.App.3d 1008, 1019 [202 Cal.Rptr.490, 497];
Brown v Tan (Fla.App. 3 Dist. 1981) 395 So.2d 1249, 1251;
Ruppen v Ruppen (Ind.App. 1 Dist 1993) 614 N.E.2d 577,
581-582; L.H. v Youth Welfare Office of Wiesbaden, Germany,
R.B. and A.B. (Fam.Ct. 1991) 568 N.Y.S.2d 852, 855; Goodman
v Goodman (Pa.Super. 1989) 556 A.2d 1379, 1388; Falco Adkins
v Falco Antapara (Tenn.App. 1992) 850 S.W.2d 148, 151; Yost
v Johnson (Del.Supr. 1991) 591 A.2d 178, 184; Vause v Vause
(Wis.App. 1987) 140 Wis.2d 157 [409 N.W.2d 412, 416].
It should also be noted that, since a principal allegation
was the domestic violence, the bulk of the relevant evidence
on this point could only be found in Greece.