In Re Marriage of McDermott: The Washington Court of Appeals declined to pass a custody order because Kansas was declared his home state.
By Christina A. Meserve and Charles E. Szurszewski, family lawyers
Wendy and Justin McDermott were married in Oklahoma in March of 2011. Their only child, H. M., was born three months later in Costa Rica. At the time of the child’s birth, both Wendy and Justin were residents of Kansas and intended to return to Kansas with their newborn. They had made the decision to have H. M. be born in Costa Rica so that he could enjoy the advantages of dual citizenship.
Approximately six weeks after H. M.’s birth the parents returned to Kansas. They lived there until January 15, 2012, when Wendy and H. M. moved to Washington. Thus, H. M. was physically present in Kansas for five and a half months. Two and a half months after Wendy and H. M. moved to Washington, Wendy filed a petition for dissolution of marriage in Snohomish County. At this time, H. M. was nine months old. Wendy claimed that H. M. had no other home state and that Washington should be considered H. M.’s home state. She also claimed that Washington needed to exercise temporary emergency jurisdiction in order to protect H. M. or Wendy from abuse. Both parties filed for dissolution on the same day, Justin filing in Kansas and Wendy filing in Washington.
The court spent a substantial amount of time discussing the erroneous use of the word “jurisdiction” in both the UCCJEA and in other court cases. The court went on, however, to use the term “jurisdiction” in ruling on Wendy’s petition.
The court concluded that Kansas was H. M.’s home state because the absence from Kansas in order to have H. M. born in Costa Rica had been only temporary. Because Kansas was H. M.’s home state, it was the only state that could make an initial custody determination unless it had declined to exercise jurisdiction. Because Kansas was H. M.’s home state, the Washington court had no authority to enter any custody orders.
Christina A. Meserve and Charles E. Szurszewski practice family law in Olympia, Washington with the law firm of Connolly Tacon & Meserve.
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