O.C.G.A. § 19-9-67 (2019)
Finding of inconvenient forum; conditions
(a) A court of this state which has jurisdiction under this article to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court. (b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including: (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. (c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper. (d) A court of this state may decline to exercise its jurisdiction under this article if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.
History
Code 1981, § 19-9-67, enacted by Ga. L. 2001, p. 129, § 1.
Annotations
Law reviews. For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004).
For annual survey of domestic relations law, see 67 Mercer L. Rev. 47 (2015).
JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, annotations decided under the Uniform Child Custody Jurisdiction Act, former Code 1933, §§ 74-501 through 74-525, subsequently codified as §§ 19-9-40 through 19-9-64, are included in the annotations for this Code section. Purpose. - Former § 19-9-47 was not a separate grant of jurisdiction over interstate child custody proceedings, but established a discretionary abstention doctrine. Mulle v. Yount, 211 Ga. App. 584, 440 S.E.2d 210, 1993 Ga. App. LEXIS 1585 (1993), cert. denied, No. S94C0556, 1994 Ga. LEXIS 519 (Ga. Feb. 21, 1994) (decided under former Code Section § 19-947). Limited jurisdiction. - When the trial court held that the court did not have jurisdiction over child custody because of the pendency of an appeal in another state, custody ceased to be a contestable issue, and the court was not precluded from addressing issues over which the court had jurisdiction, including divorce. Norowski v. Norowski, 267 Ga. 841, 483 S.E.2d 577, 1997 Ga. LEXIS 137 (1997) (decided under former Code Section § 199-47). While a trial court had a limited grant of authority under subsection (f) of former § 19-9-47 to dismiss a custody proceeding on the ground of forum non conveniens, it could not dismiss the divorce proceeding as well. Holtsclaw v. Holtsclaw, 269 Ga. 163, 496 S.E.2d 262, 1998 Ga. LEXIS 282 (1998); Patterson v. Patterson, 271 Ga. 306, 519 S.E.2d 438, 1999 Ga. LEXIS 619 (1999) (decided under former Code Section § 19-9-47). Although a trial court was authorized to dismiss the child custody portion of a husband’s case on the basis of forum non conveniens under O.C.G.A. § 19-9-67(a), the trial court erred in dismissing the
husband’s divorce case as well because he had a right to litigate his divorce in his county of residence. Although the trial court could arguably decline to exercise jurisdiction over the divorce case under O.C.G.A. § 9-10-31.1, the trial court did not invoke § 9-10-31.1 or consider the factors that statute enumerated. Spies v. Carpenter, 296 Ga. 131, 765 S.E.2d 340, 2014 Ga. LEXIS 887 (2014). Georgia trial court had jurisdiction. - Trial court erred in dismissing a husband’s divorce complaint on the ground that jurisdiction was properly with the Italian court because the trial court had jurisdiction to make the initial custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), O.C.G.A. § 19-9-40 et seq., specifically O.C.G.A. § 19-9-61(a) and (b), and no other court did since Georgia was the only state, including Italy, that could qualify as the “home state” of the parties’ child pursuant to the UCCJEA, O.C.G.A. § 19-9-41(7), at the time either the Italian custody proceeding or the Georgia proceeding was commenced and at the time the trial court entered its initial child custody order; under the UCCJEA, the jurisdictional inquiry entered into by the Italian court was insufficient because the Italian court undertook no analysis of the home state of the child or of any other factors that could be considered a substitute for such but simply found that the prerequisites for jurisdiction over a divorce action were met. Bellew v. Larese, 288 Ga. 495, 706 S.E.2d 78, 2011 Ga. LEXIS 91 (2011). Inquiry required. - Trial court erred in dismissing a child custody proceeding without an inquiry into whether the law of the other state involved in the case would allow a court of that state to exercise jurisdiction. Patterson v. Patterson, 271 Ga. 306, 519 S.E.2d 438, 1999 Ga. LEXIS
619 (1999) (decided under former Code Section § 19-9-47). Findings on all statutory factors required. - It is an abuse of discretion for a trial court not to address each of the seven factors listed in O.C.G.A. § 9-1031.1(a), and in order to ensure that the trial court’s decision-making process was guided by the statutory requirements, the trial court must make specific findings either in writing or orally on the record demonstrating that the court has considered all seven of the factors. The same rules apply to a court considering whether the court should decline jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, O.C.G.A. § 19-9-40 et seq., as an inconvenient forum in accordance with O.C.G.A. § 19-9-67. Murillo v. Murillo, 300 Ga. App. 61, 684 S.E.2d 126, 2009 Ga. App. LEXIS 1082 (2009). In a child custody case in which the children had been removed from their Georgia mother’s custody and had lived in Florida with their father for more than two years and most of the witnesses lived outside of Georgia, the juvenile court erred in dismissing the mother’s petition for custody based on inconvenient forum without making specific findings demonstrating the court’s consideration of all of the factors in O.C.G.A. § 19-9-67(b)(1) through (8). Further, the case should be stayed, not dismissed. In the Interest of A. L., 351 Ga. App. 824, 833 S.E.2d 296, 2019 Ga. App. LEXIS 499 (2019). Nature and location of evidence. - It was not improper for the trial court to
consider that because a father’s fitness as a parent was no longer the controlling custody issue under the revised provisions of O.C.G.A. § 19-9-3(a)(5), this affected the nature and location of the relevant evidence under O.C.G.A. § 19-9-67(b)(6). Murillo v. Murillo, 300 Ga. App. 61, 684 S.E.2d 126, 2009 Ga. App. LEXIS 1082 (2009). No abuse of discretion in declining jurisdiction. - Trial court did not abuse the court’s discretion by declining to exercise jurisdiction in a child custody case under O.C.G.A. § 19-9-67(b) because the children lived in Texas, the witnesses, such as the children’s teachers and health care providers were in Texas, and the trial court determined that the case could be more expeditiously resolved there. Odion v. Odion, 325 Ga. App. 733, 754 S.E.2d 778, 2014 Ga. App. LEXIS 58 (2014). Trial court properly examined the factors set forth in O.C.G.A. § 19-9-67(b) and declined to exercise jurisdiction over the child custody portion of a divorce case because, in part, the children had been living with their mother in California for more than six months and attended school there, and a California court had already conducted two hearings and issued a child custody order, whereas the Georgia court was just beginning to become familiar with the case. Spies v. Carpenter, 296 Ga. 131, 765 S.E.2d 340, 2014 Ga. LEXIS 887 (2014).
RESEARCH REFERENCES Am. Jur. 2d. 20 Am. Jur. 2d, Courts, §§ 59, 109 et seq. C.J.S. 21 C.J.S., Courts, §§ 82 et seq., 103. U.L.A. Uniform Child Custody Jurisdiction Act (U.L.A.) § 7.
ALR. Inconvenience of forum as ground for declining jurisdiction under § 7 of the Uniform Child Custody Jurisdiction Act (UCCJA), 21 A.L.R.5th 396.