Christopher SEEKINS v. Jennifer HAMM

SAUFLEY, C.J. [¶ 1] Christopher Seekins arid Jennifer Hamm met in Guatemala, and their daughter was born there in August 2013. 1 Although neither Hamm nor the child has ever been to Maine, Seekins filed a parental rights and responsibilities complaint in the Maine District Court. Seekins now appeals from a judgment entered in the District Court (Belfast, Sparaco, J.) that granted Jennifer Hamm’s motion to dismiss the complaint based on a determination that Maine lacks jurisdiction púrsuaht to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 19-A M.R.S. §§ 1731-1783 (2014). We affirm the judgment of dismissal, concluding that the court applied the applicable law properly. I. BACKGROUND [¶ 2] On Noyember 18, 2014, when the child was approximately fifteen months old, Seekins filed a complaint in Maine to establish parental rights and- responsibilities. Hamm retained counsel and moved to dismiss the complaint for lack of jurisdiction. She argued that Maine lacked long-arm jurisdiction over- her pursuant to 14 M.R.S; § ,704-A (2014). ■ [¶ 3] Seekins filed a' memorandum in opposition to the motion to dismiss, in which he raised the Convention on "the Civil Aspects of International Child Abduction (“Hague Convention”) and the federal statute providing remedies for international child abductions that Violate the Hague Convention, see 42 U.S.C.S. § 11603 (now codified at 22 U.S.C.S. § 9003 (LEXIS through‘Pub. L. No. 114-73)). He also cited to' the Uniform Interstate Family Support Act (UIFSA), ‘ 19-A M.R.S. §§ 2804, 2961 (2014), and separately argued that a jeopardy order should be entered pursuant to 22 M.R.S. § 4035 (2014). Hamm filed a response addressing these other sources of law. In Seekins’s reply, he additionally raised the federal international parental kidnapping statute, see 18 U.S.C.S.' § 1204 .(LEXIS through Pub. L. No. 114-73). *942 [¶ 4] The court held a hearing on Hamm’s motion to dismiss in March 2015. Seekins was the only witness. Shortly thereafter, the court entered a written judgment in. which it found that Seekins now resides in Maine, that neither Hamm nor the child has ever been to Maine, and that the child has resided in Guatemala with Hamm since her birth. The court dismissed Seekins’s complaint because, pursuant to the UCCJEA, the initial child custody determination must be made in the “home state” — which for this child is Guatemala, not Maine — absent a showing that the home state has declined jurisdiction..''See 19-A M.R.S. § 1745(1): Seekins timely appealed from the judgment. See 14 M.R.S. § 1901 (2014); 19-A M.R.S. § 104 (2014); M.R.App. P. 2. II. DISCUSSION [¶5] The District Court’s factual findings are not in dispute, and we review the court’s determination of subject matter jurisdiction pursuant to the UCCJEA de novo. See Gutierrez v. Gutierrez, 2007 ME 59, ¶¶ 12-13, 921 A.2d 153. A. Application of the UCCJEA [¶ 6] With certain exceptions not applicable here, “a court of this State has jurisdiction to make an initial child custody determination only if’ one of four criteria is met. See 19-A M.R.S. § 1745(1). 2 Jurisdiction will lie in Maine if (A) Maine “is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State”; (B) no other state has “home state” jurisdiction; (C) any “home state” declined jurisdiction on the basis that Maine is the more appropriate fórum; or (D) “[n]o court of any other state would have jurisdiction” pursuant to the preceding criteria. Id. § 1745(1)(A)~(D). Section 1745(1) “is the exclusive jurisdictional basis for making a child custody determination by a court of this State.” Id. § 1745(2). Thus, although the child’s physical presence is not necessarily required for the court to make a child custody determination, id. § .1745(1), (3), at least one of the criteria of section 1745(1) must be met for the court to have jurisdiction. [¶ 7] The “home state” of a child over the age of six months is “the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.” 19-A M.R.S. § 1732(7). “A period of temporary absence-of any of the mentioned persons is part of the period.” Id [¶ 8] When determining jurisdiction, “[a] court of this State shall treat a foreign country as if it were a state of the United States,” unless the child custody laws of that foreign country violate “fundamental principles of human rights,” 19-A M.R.S. § 1735(1), (3), as provided in article 20 of the Hague Convention, 3 see UCCJEA *943 § 105 uniform cmt., included with 19-A M.R.S.A. § 1735 (2012). There is no indication in the record that the child custody laws of Guatemala violate fundamental principles of human rights; indeed, the Hague Convention has been in force between Guatemala and the United States since January 1, 2008. Ü.S. .Dep’t of State, Treaties in Force 410-11 (Jan. 1, 2013); U.S. Dep’t of State, Bureau of Consular Affairs, International Parental Child Abduction, U.S. Hague Convention Treaty Partners, http://travel.state.gov/content/ childabduction/en/country/hague-party-eountries.html. [¶ 9] Although Seekins disputes the reasons that neither Hamm nor the child has visited Maine, 4 the- child’s actual place of residence is not in dispute and is dispos-itive of jurisdiction. The child was more than six months old when the complaint was filed, and she had lived in Guatemala with her mother for the six consecutive months immediately preceding Seekins’s commencement of his parental rights and responsibilities action. See 19-A M.R.S. § 1732(7). Guatemala — not Maine — is the child’s home state based on the child’s actual place of residence. See id. There is no evidence that Guatemala has declined jurisdiction; thus, the initial proceeding with respect to the child must be pursued there. Because of the lack of subject matter jurisdiction, the court appropriately dismissed the .complaint. B. Inapplicability of Other Legal Authorities [¶ 10] During the course of the case, Seekins cited to several additional sources of law in support of his contention that the District .Court had jurisdiction, to: determine parental rights and responsibilities for the child. The federal authorities that Seekins cited do not confer jurisdiction on the Maine District Court and are inapplicable. The Hague Convention is inapplicable because the removal oí* the retention of a child is wrongful only if “it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention,” Hague Convention art. 3(a), opened for signature Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10494 (Mar. 26, 1986) (emphasis added), and 18 U.S.C.S. § 1204, an international parental kidnapping statute, simply does not apply on these facts. [¶ 11] The Maine sources cited by See-' kins also fail to establish a basis for jurisdiction. The Uniform Interstate Family Support Act does not govern child custody and contact and does not provide a basis for jurisdiction because the child was not conceived in Maine, the mother was hot served in Maine and did not consent to jurisdiction _ in Maine, and neither the mother nor the child ever resided in Maine. See 19-A M.R.S. § 2961(1). Title 22 is inapplicable because no petition for a child protection order has been, or appropriately could be, filed in this title 19-A action. See 22 M.R.S. § 4032 (2014). Finally, whether or not Seekins and Hamm originally , agreed to bring the child to reside in Maine, that did not occur, and the *944 parties to a court case may not, even by mutual consent or agreement, confer jurisdiction on the court. See Kliman v. Dubuc, 134 Me. 112, 114, 182 A. 160 (1936). III. CONCLUSION [¶ 12] The District Court considered all of the parties’ arguments and the sources of law cited by each party in determining that the UCCJEA governed its determination of jurisdiction in this matter. The UCCJEA applies, and the court properly applied the law. We affirm the resulting judgment dismissing Seekins’s complaint. 5 The entry is: Judgment affirmed. Footnotes [1] No dispute or adjudication regarding paternity appears; in the record. [2] A "child custody determination” is defined as a judgment, decree or other order of a court providing for the legal custody, physical custody or visitation with respect to a child. The term includes a permanent, temporary, initial and modification order. The term does not include an order relating to child support or other monetary obligation of ah individual. 19-A M.R.S. § 1732(3) (2014). " 'Initial determination’ means the first child custody determination concerning a particular child.” 19-A M.R.S. § 1732(8) (2014). [3] Article 20 of the Hague Convention provides, "The return of the child ... may be refused if this would not be permitted by the *943 fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” Convention on the Civil Aspects of International Child Abduction art. 20, opened for signature Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10494 (Mar. 26, 1986) (emphasis added). [4] Seekins testified that, at some point, Hamm had agreed to move to Maine with the child and reside-with him. " Seelcins appears to base his claim for jurisdiction in Maine in part on that agreement. [5] Although Hamm filed a motion for sanctions against Seekins, see M.R.App. P. 13(f), we decline to impose sanctions in this matter. Seekins is warned, however, that requiring Hamm to incur further expense in defending against fruitless litigation in Maine may result in serious monetary sanctions.