TITLE 19 DOMESTIC RELATIONS

Section 9. Child Custody Proceedings, 19-9-1 through 19-9-134.

ARTICLE 3 UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

19-9-68. Wrongfully obtained jurisdiction; actions to prevent repetition of unjustifiable conduct; expenses.

Except as otherwise provided in Code Section 19-9-64 or by any other law of this state, if a court of this state has jurisdiction under this article because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
1. The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
2. A court of the state otherwise having jurisdiction under Code Sections 19-9-61 through 19-9-63 determines that this state is a more appropriate forum under Code Section 19-9-67; or
3. No court of any other state would have jurisdiction under the criteria specified in Code Sections 19-9-61 through 19-9-63.
If a court of this state declines to exercise its jurisdiction pursuant to subsection (a) of this Code section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under Code Sections 19-9-61 through 19-9-63.
If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (a) of this Code section, it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs, or expenses against this state unless authorized by law other than this article.

(Code 1981, §19-9-68, enacted by Ga. L. 2001, p. 129, § 1.)

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 through19-9-64, are included in the annotations for this Code section.

Intent to discourage defiance of custody orders.

- It is in public interest to discourage conduct such as noncustodial parent seeking custody in this state while withholding children in defiance of another state's order, without any prejudice whatsoever to the noncustodial parent's right to bring such a petition where the legal custodian and children reside. Reid v. Adams, 241 Ga. 521, 246 S.E.2d 655 (1978) (decided under former Uniform Child Custody Jurisdiction Act).

Decree obtained in Georgia not controlling.

- That petition represents complaint for modification rather than for initial decree, and that divorce was originally obtained in Georgia rather than in another state, are not facts of such material import as to control decision. Graham v. Hajosy, 159 Ga. App. 466, 283 S.E.2d 683 (1981) (decided under former Uniform Child Custody Jurisdiction Act).

Residence of legal custody.

- Georgia courts will not relitigate custody except where legal custodian resides. Yearta v. Scroggins, 245 Ga. 831, 268 S.E.2d 151 (1980) (decided under former Uniform Child Custody Jurisdiction Act).

Noncustodial parent may not change custody by snatching child.

- If it is in the child's best interest that child custody be changed, noncustodial parent must, instead of snatching child, seek change of custody where jurisdiction lies. Etzion v. Evans, 247 Ga. 390, 276 S.E.2d 577 (1981) (decided under former Uniform Child Custody Jurisdiction Act).

When noncustodial resident parent improperly brings child into Georgia.

- As a matter of public policy, Georgia courts refuse to provide forum in Georgia for relitigating custody when noncustodial parent resident in Georgia improperly has removed child from physical custody of custodial parent who resides in another state. Etzion v. Evans, 247 Ga. 390, 276 S.E.2d 577 (1981) (decided under former Uniform Child Custody Jurisdiction Act).

Trial court lacked jurisdiction to hear an action for modification of custody brought by father, when the mother had legal custody and lived with the child in a different state, the child was temporarily visiting the father in Georgia, there was no extreme emergency authorizing the conduct of the father in denying custody to the mother, and there was no substantial evidence otherwise sufficient to vest jurisdiction in the Georgia court. Lightfoot v. Lightfoot, 210 Ga. App. 400, 436 S.E.2d 700 (1993) (decided under former Uniform Child Custody Jurisdiction Act).

No unjustifiable conduct.

- Mother was not entitled to attorney fees pursuant to O.C.G.A. § 19-9-68 since the father never alleged or presented evidence that the mother no longer resided in Kansas, but the Georgia trial court's holding to that effect was due to the court's own error, and was not based on any alleged unjustifiable conduct by the father. Delgado v. Combs, 314 Ga. App. 419, 724 S.E.2d 436 (2012), cert. denied, No. S12C1106, 2012 Ga. LEXIS 602 (Ga. 2012).

Cited in Gorelik v. Gorelik, Ga. App. , 815 S.E.2d 330 (2018).

RESEARCH REFERENCES

Am. Jur. 2d.

- 20 Am. Jur. 2d, Courts, §§ 59, 109 et seq.

C.J.S.

- 21 C.J.S., Courts, §§ 80 et seq., 103.

U.L.A.

- Uniform Child Custody Jurisdiction Act (U.L.A.) § 8.

ALR.

- Child custody: when does state that issued previous custody determination have continuing jurisdiction under Uniform Child Custody Jurisdiction Act (UCCJA) or Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A, 83 A.L.R.4th 742.

Parties' misconduct as ground for declining jurisdiction under § 8 of the Uniform Child Custody Jurisdiction Act (UCCJA), 16 A.L.R.5th 650.

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