Fill and Sign the Writs Certiorari Form

COURT OF APPEAL ____ CIRCUIT STATE OF LOUISIANA DOCKET NO. __________ __________________ VERSUS __________________ ____ JUDICIAL DISTRICT COURT PARISH OF ________ DOCKET NO. ____ OPPOSITION TO APPLICATION FOR WRITS OF CERTIORARI, REVIEW AND MANDAMUS FILED BY ______________ ______________ ______________ ______________ , Louisiana ____ Telephone: ( ____ ) ________ ATTORNEY FOR DEFENDANT I N D E X INDEX . . . . . . . . . . . . . . . . . . . . . . i STATEMENT OF JURISDICTION . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . 2 QUESTION OF LAW . . . . . . . . . . . . . . . . . 3 ASSIGNMENT OF ERROR . . . . . . . . . . . . . . . 4 CONCLUSION . . . . . . . . . . . . . . . . . . . . 10 AFFIDAVIT . . . . . . . . . . . . . . . . . . . . 11 EXHIBIT #1 . . . . . . . . . . . . . . . . . . . . 12 EXHIBIT #2 . . . . . . . . . . . . . . . . . . . . 14 EXHIBIT #3 . . . . . . . . . . . . . . . . . . . . 16 EXHIBIT #4 . . . . . . . . . . . . . . . . . . . . 20 EXHIBIT #5 . . . . . . . . . . . . . . . . . . . . 23 EXHIBIT #6 . . . . . . . . . . . . . . . . . . . . 27 EXHIBIT #7 . . . . . . . . . . . . . . . . . . . . 30 EXHIBIT #8 . . . . . . . . . . . . . . . . . . . . 32 EXHIBIT #9 . . . . . . . . . . . . . . . . . . . . 36 EXHIBIT #10 . . . . . . . . . . . . . . . . . . . 48 I. STATEMENT OF JURISDICTION This Court has jurisdiction over ______________ 's opposition to Writs of Certiorari, Review and Mandamus pursuant to Article 5, Sections 2 and l0 of the Constitution of the State of Louisiana, Louisiana Code of Civil Procedure Article 220l, and Rule 4 of the Uniform Rules - Courts of Appeal. This application should not be granted because the ruling of the trial Court, in recognizing the Judgment of the State of ______________ concerning the custody of the minor child, was correct. II. STATEMENT OF THE CASE ______________ filed a Petition for Custody, asking the Court to grant her custody of the minor children, ______________ and ______________ . This petition was filed on __________ ____ , 20 ____ , but an order granting her the temporary custody of the minor children was signed on __________ ____ , 20 ____ . A Consent Judgment was signed on __________ ____ , 20 ____ , by counsel for ______________ , ______________ , and Defendant, ______________ . Defendant thereafter filed a Petition to Annul Consent Judgment, which was signed by Judge ______________ , on __________ ____ , 20 ____ . A Declinatory Exception of Lack of Jurisdiction Over Subject Matter was filed by Defendant on __________ ____ , 20 ____ . ______________ 's Exception was stayed pending a determination by the District Court of the County of ________ , State of ________ , concerning the re-opening and re-examination of their decision in Juvenile Number ________ , Division Y (Cross Reference ________ and ________ ). III. QUESTION OF LAW Did the trial Court commit error when it deferred jurisdiction to the State of ________ concerning the custody of ______________ , thereafter ratifying the ________ Court's orders, and ordering specific visitation rights for ______________ with the minor child. IV. ASSIGNMENT OF ERROR A. BACKGROUND On __________ ____ , 20 ____ , in ____ ____ County, State of ____ ____ , an order of custody was issued granting ______________ custody of the minor children, ______________ and ______________ . (See Exhibit #l). Both parties, ______________ and ______________ , were present and represented at this hearing on __________ ____ , 20 ____ . This order was reduced to writing and signed by the Court on __________ ____ , 20 ____ , Nunc Pro Tunc to __________ ____ , 20 ____ . (See Exhibit #l). As a result of military orders, ______________ was in the process of moving from ________ County, ________ , to ________ County, ________ , when he stopped in ________ Parish, Louisiana, to allow ______________ visitation with the minor children. This visitation occurred on __________ ____ , 20 ____ , at the home of ______________ located in ________ Parish, Louisiana. On __________ ____ , 20 ____ , the Honorable ______________ signed an order granting the temporary custody of the minor children to ______________ , and also ordering the Sheriff of ________ Parish to take into their possession the minor children, and to place both children in the custody of ______________ . (See Exhibit #2). On __________ ____ , 20 ____ , a Petition for Custody, along with the signed Order, was filed requesting that ______________ be awarded the temporary care, custody and control of the minor children, despite the previous orders emanating from ________ County, ________ . (See Exhibit #3). On __________ ____ , 20 ____ , within hours of ______________ arriving in ________ Parish, Louisiana, to begin the visitation with ______________ , the ________ Parish Sheriff's Office executed the above referred to warrants and thereafter placed the minor children in the custody of ______________ . On that same date, ______________ advised ______________ that if he would sign a Joint Petition for Custody and a Consent Judgment, ______________ would be able to leave with his youngest daughter, but the older daughter would remain with ______________ . Under the threat of losing both children, ______________ signed the Joint Petition and Consent Judgment. (See Exhibit #4). This entire episode from the initial service by the Sheriff's Department to the signing of the consent Judgment took place in less than six (6) hours. On __________ ____ , 20 ____ , the Honorable ______________ rescinded his Consent Judgment signed on __________ ____ , 20 ____ . (See Exhibit #5). On __________ ____ , 20 ____ , Defendant, ______________ , filed a Declinatory Exception of Lack of Jurisdiction Over Subject Matter. (See Exhibit #6). An Amended Petition for Custody was filed by ______________ on __________ ____ , 20 ____ . (See Exhibit #7). A hearing was held on __________ ____ , 20 ____ , on Defendant's Declinatory Exception of Lack of Jurisdiction Over Subject Matter, and on __________ ____ , 20 ____ , the trial Court stayed these proceedings pending a determination by the District Court of the County of ________ , State of ________ , concerning the re-opening and re-examination of their decision in Juvenile Number ________ , Division Y (Cross Reference ________ and ________ ). (See Exhibit #8). The trial Court also ordered that the temporary custody order signed on __________ ____ , 20 ____ , was to remain in full force and effect pending the Colorado Court's determination. On __________ ____ , 20 ____ and __________ ____ , 20 ____ , a hearing was held in ________ County, ________ , before the Honorable ______________ , Senior District Judge, concerning the custody of the minor children. A ruling was issued on __________ ____ , 20 ____ , wherein Judge ______________ vested custody of ______________ to ______________ . (See Exhibit #9). On __________ ____ , 20 ____ , the Honorable ______________ ratified the orders issued by Senior District Judge ______________ and also ordered visitation with the ______________ . (See Exhibit #l0). Plaintiff, ______________ , thereafter filed a Notice of Intention to Apply for Writs of Review, Certiorari, and Mandamus, alleging that the trial Court erred in recognizing and ratifying the orders issued by Judge ______________ in ________ . B. TRIAL COURT ERROR The Uniform Child Custody Jurisdiction Act (UCCJA-La. R.S. l3:l700 et seq.) governs interstate custody disputes. The UCCJA was drafted to bring order out of the chaos that once marked interstate custody disputes when the courts of different states claimed authority to issue contradictory custody orders, and to deter "child snatching". Blakesley, Child Custody: Jurisdiction and Procedure, 35 Emory L.J. 29l (l986) . The UCCJA provides the exclusive state law source for determining Court subject matter jurisdiction. It is designed to avoid conflicts of jurisdiction or judicial cooperation over matters of custody in our transient society. Dubea v. Dubea , 609 So.2d ll94, ll97 (La. 3rd Cir. l992); Martin v. Martin , 545 So.2d 666, 668 (La. 5th Cir. l989). Louisiana courts have held the UCCJA to have two paramount purposes: (l) Avoid jurisdictional competition among the states and, (2) Promoting resolution of custody disputes by the forum deemed most likely to have the maximum amount of relevant information about the case. Each component part of the UCCJA should be construed to promote these goals. Renno v. Evans , 580 So.2d 945, 948 (La. 2nd Cir. l99l); Jones v. Shadwich , 60l So.2d 37l, 372 (La. 5th Cir. l992); Stuart v. Stuart , 5l6 So.2d l277 (La. 2nd Cir. l987); Ingram v. Ingram , 463 So.2d 932 (La. 2nd Cir. l985). Louisiana courts have held that the jurisdictional limitations imposed by the UCCJA are equivalent to declaration of subject matter jurisdiction . UCCJA specifically set forth the jurisdictional requirements to modify a custody determination, and neither confers jurisdiction by stipulation, agreement or consent of the parties or the court. Renno v. Evans , supra. Consent of the parties cannot confer such jurisdiction and a judgment issued by a court without proper jurisdiction is null. Fazio v. Fazio , 587 So.2d 9l (La. 2nd Cir. l99l; Renno v. Evans , supra at 947. It is incumbent on the trial court to examine the strength of Louisiana's jurisdictional ties. The UCCJA provides in pertinent part: "A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if: (l) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or (2) It is in the best interest of the child that a court of this state assume jurisdiction because (l) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships[.]" The most favored jurisdictional basis is the "home state". Second in preferential rank is that of "significant connection", and its purpose is to limit jurisdiction, not proliferate it. Renno v. Evans , supra at 948. Thus, only when maximum rather than minimum contact exists should a state assume jurisdiction under this grant of authority. Reanno v. Evans , supra at 948; Counts v. Bracken , 494 So.2d l275 (La. 2nd Cir. l986); Moore v. Moore , 379 So.2d ll53 (La. 2nd Cir. l980). To be considered a home state the child must be living in the State for six months, with a parent or some other person acting as parent, who has been awarded custody. Douglas v. Douglas , 528 So.2d 699 (La. 2nd Cir., l988). Louisiana is not the home state of the child as contemplated by the Statute. The child lived with her mother and ______________ in the State of ________ while ______________ was employed by the United States Air Force. (See Transcript Page 20). The original custody decree recognized that the State of ________ had jurisdiction over the subject matter and the parties herein. (See Exhibit #1). In addition, when the order granting plaintiff the temporary care, custody and control was signed on __________ ____ , 20 ____ , the minor child was not present in this State. (See Transcript Page ll). This child did not arrive in Louisiana until __________ ____ , 20 ____ , at which time the ________ Parish Sheriff's Office executed the civil warrants. At no time has the minor child lived in Louisiana for a period in excess of six (6) months with a parent or some other person acting as parent, who has been awarded custody. The only considered custody decree was the order in the District Court, County of ________ , State of ________ , granting ______________ custody of the minor child. (See Exhibit #l). Also, the "significant connection" factors mentioned in the second standard are not present in this State. The child had lived with his mother and ______________ in the State of ________ for far in excess of six months and the only connection with Louisiana is that the maternal grandmother lives in this State. The Honorable ______________ also concluded that ______________ should re-visit its custody decision prior to his determination concerning jurisdiction. (See Exhibit #8). The only time the minor child was physically in Louisiana was when she visited with her grandparents. Louisiana Revised Statute l3:l705(A) provides: "A court of this state shall not exercise jurisdiction under this part if at the time of the filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Part unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons." Thus, where it is shown that proceedings had been filed in another state and a temporary custody order granted, and that state is the "home state", Louisiana must not exercise jurisdiction in the child custody matter. King v. King , 6l9 So.2d l25, l26 (La. lst Cir. l993). The evidence shows that there were numerous orders emanating out of ______________ concerning the custody of the minor child prior to __________ ____ , 20 ____ , to which ______________ was a party litigant. (See Exhibit #l and #9). La. R.S. l3:l706 mandates that: "A court which has jurisdiction under this part to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case, and that a Court of another state is a more appropriate forum." La. R.S. l3:l706(c) lists certain factors to consider in determining whether or not the best interests of the children are served by allowing another state to assume jurisdiction. Those factors are: (l) If another state is or recently was the child's home state. (2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants. (3) If substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more available in another state. (4) If the parties have agreed on another forum which is no less appropriate, and (5) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in Section l700. Louisiana will decline jurisdiction where these factors indicate it is not in the best interest of the child to assert it. Dubea v. Dubea , supra at ll97; Nielsen v. Neilsen , 472 So.2d l33 (La. 5th Cir. l985); Hamp v. Hamp , 6l2 So.2d 8l0, 8ll (La. lst Cir. l992). Judge ______________ , in his ruling, evidently felt that it was in the best interest of the minor child that the State of ________ assume jurisdiction to decide the custodial issue. (See Exhibit #10). ______________ has met both the "home state" and "significant connection" criteria of La. R.S. l3:l700 et seq. In addition, the best interest of the minor child dictates that the State of ________ is the most appropriate forum to determine custody. ______________ should not be allowed to complain about the ______________ orders, especially since she was a party litigant at all phases of the action in ______________ . CONCLUSION As shown by the foregoing, the Honorable ______________ was correct in deferring jurisdiction to the State of ________ to determine custody of the minor child. The State of ________ was the "home state" of the child and also the state with the most "significant connections" with the party litigants. Therefore, the writ filed by ______________ should be denied and the Judgment of Judge ______________ should be enforced. Respectfully Submitted, ______________________________ ______________ ______________ ______________ , LA ____ ( ____ ) ________ La. Bar Roll No. ________ ATTORNEY FOR DEFENDANT STATE OF LOUISIANA PARISH OF ________ BEFORE ME, the undersigned authority, personally came and appeared ______________ , who, upon being duly sworn, did depose and say that he is counsel for ______________ , Defendant; that the allegations contained in the Statement of Facts are true and correct to the best of his knowledge, information and belief; deponent certifies that a copy of the Application has been mailed to the Honorable ______________ , Judge of the ________ Judicial District for the Parish of ________ , and all parties through their counsel of record at the following addresses: The Honorable ______________ , ________ Judicial District Court Judge, ______________ , ______________ , LA ____ , Telephone No. ( ____ ) ____ ____ ; ______________ , through her counsel of record, ______________ , ______________ , ______________ , LA ____ , Telephone No. ( ____ ) ________ . _____________________________ ______________ SWORN TO AND SUBSCRIBED before me this _____ day of ________ , 20 ____ . ____________________________ _ NOTARY PUBLIC