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Fulton County jurisdiction ruling vacated in custody case

A decision of a Fulton County judge regarding jurisdiction in a custody modification case was recently overturned in Murillo v. Murillo, 360 Ga. App. 61 (2009). A husband and wife were divorced in Fulton County in 1997 and the wife was granted custody of the parties’ child. Id. at 62. In 2002, the wife moved with the child to North Carolina. In 2008, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the husband filed a Petition to Modify Custody in Fulton County Superior Court. Id. The trial court then granted the wife’s motion asking the court to decline jurisdiction as North Carolina was the more convenient forum for the proceeding. Id.

Generally, since Fulton County was the court that entered the original custody ruling, Fulton County had “exclusive, continuing jurisdiction” over the modification action unless the court determines that it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. OCGA §19-9-67. To make that determination,OCGA §19-9-67(b) requires the court to consider all of the following factors:

(1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this state;
(3) The distance between the court in this state and the court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.

In vacating the decision of the Fulton County court, the Court of Appeals did not say that the end result was incorrect per se, but rather emphasized that the court did not consider and reference ALL of the required factors in its written Order in making its decision that it was no longer a convenient forum. Id. at 64. Thus, the Court of Appeals directed the trial courts to always consider ALL of the factors in making a jurisdiction decision.


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