Schwartz and Battini

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Family Law
  • Date Filed: 12-13-2017
  • Case #: A158348
  • Judge(s)/Court Below: Lagesen, J. for the Court; Ortega, P.J. & Wilson, S.J.
  • Full Text Opinion

“A court of another state does not have jurisdiction under subsection (1)(a) of this section, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this is the more appropriate forum under ORS 109.761 or 109.764 and: (B) substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships;” ORS 109.741(1)(b).

Father, appealed a judgment of separation and challenged the child custody provisions of the judgment. On appeal, Father argued that the court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Specifically, Father contended that the child’s “home state” (as defined in the UCCJEA) is Indonesia, not Oregon, and thus, Indonesia has proper jurisdiction. Although it is undisputed that the child was not physically present in Indonesia for the six-month period before the court was petitioned, -- which is a requirement in qualifying any jurisdiction as the “home state” of the child under the UCCJEA -- Father argued that child’s physical absence was only a “temporary absence” and an exception to the six-month residence requirement in the UCCJEA. “A court of another state does not have jurisdiction under subsection (1)(a) of this section, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this is the more appropriate forum under ORS 109.761 or 109.764 and: (B) substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships;” ORS 109.741(1)(b). The determination of what legal test governs the determination of whether a child’s absence from a putative “home state” is a “temporary absence under the UCCJEA, is one of first of impression. The Court of Appeals found that the “totality of the circumstances test” which looks at all surrounding circumstance of purported absences, including the intent of the parties involved, and the duration of the absence, when assessing whether an absence should be treated as a “temporary absence,” was the preferred assessment here. Applying that standard, the Court rejected Father’s argument and found that the child and Mother had significant connection to Oregon, supported by substantial evidence as required by ORS 109.741(1)(b). Affirmed. 

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