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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mikesell v. Waterman (12/05/2008) sp-6324
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| DAVID MIKESELL, | ) |
| ) Supreme Court No. S- 12910 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-07-1502 CI | |
| v. | ) |
| ) O P I N I O N | |
| ALLISON WATERMAN, | ) |
| ) No. 6324 - December 5, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Douglas L. Blankenship, Judge.
Appearances: Michael J. Walleri, Law Offices
of Michael J. Walleri, Fairbanks, for
Appellant. Allison Waterman, pro se, Silver
City, New Mexico, Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
FABE, Chief Justice.
I. INTRODUCTION
The superior court in Alaska declined to exercise its
home state jurisdiction in an initial child custody
determination, holding that New Mexico was a more convenient
forum to decide the custody issue. The childs father appeals,
arguing that the court erred in failing to hold a hearing on the
motion to decline jurisdiction and in declining to exercise
custody jurisdiction. Because we conclude that a hearing was
unnecessary and that the superior court did not abuse its
discretion in deciding that New Mexico was a more appropriate
forum, we affirm its ruling.
II. FACTS AND PROCEEDINGS
David Mikesell and Allison Waterman have one child
together, Mary, who is now seven years old. Mary was born in
2001 in New Mexico and lived there together with her parents
until she was two years old. When the parties separated in 2003,
they agreed to alternate custody of Mary on a yearly basis.
Waterman moved with Mary to Flagstaff, Arizona in the summer of
2003. Mary remained with her mother in Arizona until September
2004. She lived with her father in New Mexico from September
2004 until May 2005, then again with her mother in Arizona from
June 2005 until May 2006.
As part of her parents informal custody arrangement,
Mary began to live with her father in Fairbanks in May 2006.1 On
April 16, 2007, Mikesell began a custody action in superior
court, asking for sole legal and physical custody of Mary.
Waterman filed a custody action in Grant County, New Mexico in
early May 2007.2 In Watermans answer to the Alaska complaint,
she contested Alaskas jurisdiction and stated her disagreement
with Mikesells request for custody.
Both parties filed motions requesting jurisdictional
rulings in their respective forums. After a hearing on Mikesells
motion to determine jurisdiction, Superior Court Judge Douglas L.
Blankenship decided that Alaska was the childs home state3 for
purposes of the Uniform Child Custody Jurisdiction and
Enforcement Act4 (UCCJEA) but noted that he would entertain a
motion to decline jurisdiction on inconvenient forum grounds.
The New Mexico court stayed Watermans custody action pending a
decision from the Alaska court about whether Alaska was an
inconvenient forum.
Waterman then filed a motion asking the Alaska court to
decline jurisdiction as an inconvenient forum. Mikesell opposed
the motion and requested a hearing. The court granted Watermans
motion without a hearing. In its memorandum decision and order,
the court identified five UCCJEA factors that it considered
germane to the case and decided that three of the five factors
favored New Mexicos exercise of jurisdiction while the other two
factors favored neither forum. As a result, it concluded that
New Mexico was the more appropriate forum to litigate custody.
Mikesell moved for reconsideration, arguing that the
court erred in not holding a hearing on the motion to decline
jurisdiction. He asserted that because the motion was
dispositive, a hearing was required by Alaska Civil Rule 77(e).
He also argued that New Mexico lacked jurisdiction to hear the
case and that the court had improperly evaluated and applied the
UCCJEA statutory factors. The court denied reconsideration,
holding that a motion to decline jurisdiction was not a
dispositive motion. It also concluded that it had properly
considered the relevant factors and that New Mexico could assume
jurisdiction under the UCCJEA.
Mikesell appeals.
III. DISCUSSION
A. Standard of Review
We review the superior courts decision to decline
jurisdiction as an inconvenient forum for abuse of discretion.5
We will find an abuse of discretion if we are left with the
definite and firm conviction on the whole record that a mistake
has been made.6 The superior courts interpretation of the civil
rules is a legal question that we review de novo.7 We review the
superior courts decision not to hold an evidentiary hearing using
our independent judgment.8
B. The Superior Court Was Not Required To Hold a Hearing.
Mikesell asks us to reverse the superior courts order
because the court did not hold a hearing before deciding
Watermans inconvenient forum motion. In making this argument,
Mikesell relies on Alaska Civil Rule 77(e)(2), which requires
oral argument on dispositive motions, including motions for
summary judgment. Interspersed throughout his brief are
arguments that the court should have held an evidentiary hearing
before issuing its ruling.
The parties disagree about whether a motion to decline
jurisdiction is a dispositive motion. We do not need to decide
whether the motion was dispositive, however, because even if was
a dispositive motion, Mikesell has not demonstrated that he
suffered substantial prejudice from the lack of oral argument.9
He claims that he was prejudiced by not being able to respond to
what he viewed as new arguments in Watermans reply, but he does
not specify what new arguments were raised or how consideration
of them was prejudicial.10 The superior court rejected this
assertion, stating that it was unable to identify any new issues
raised in Ms. Watermans reply that [it] considered relevant to
the issue of inconvenient forum. Because Mikesell failed to show
substantial prejudice in not having oral argument on the motion,
any possible error by the court was harmless.11
We also consider whether Mikesell was entitled to an
evidentiary hearing on the motion to decline jurisdiction.12 A
court is required to hold an evidentiary hearing only when the
parties present a genuine issue of material fact.13 Here, the
superior court concluded that its decision rest[ed] upon
undisputed facts. We agree.
The UCCJEA factors that the superior court considered
in deciding the inconvenient forum motion were (1) the length of
time the child lived outside of Alaska; (2) the relative
financial circumstances of the parties; (3) the nature and
location of the evidence required to resolve the litigation; (4)
the ability of each court to decide the issue expeditiously and
the procedures necessary to present evidence; and (5) the
familiarity of each court with the facts and issues of the
litigation. Mikesell had the opportunity to present information
to the court to support his position that Alaska should retain
jurisdiction when he filed his opposition to Watermans motion.14
He chose not to supplement his earlier affidavits or exhibits at
that time.
There was no dispute about where the child had lived
during her life and the length of time she had lived in each
place. Nor was there a material issue of fact about the relative
financial circumstances of the parties. Waterman filed a child
support guidelines affidavit showing limited income, and she was
represented in New Mexico by an attorney from New Mexico Legal
Aid. Mikesell, in contrast, was able to retain private counsel
and asserted in his reconsideration motion that he d[id] have
limited ability to bring Waterman and some witnesses to Alaska.
Mikesell does not show how an evidentiary hearing would have
assisted the court in determining the relative familiarity of
each court with the case or the time within which the case could
be heard in either forum, and we can see no useful testimony that
could have been presented on these issues. Nor does he
demonstrate that there was a material issue of fact related to
the nature and location of the evidence required to resolve the
case. It was undisputed that both parties had family members
living in New Mexico who might be called as witnesses and that
Mary attended school in Fairbanks and had a treating physician
there. Because there were no material factual issues for the
court to decide before ruling on the motion to decline
jurisdiction, the superior court did not abuse its discretion in
failing to hold an evidentiary hearing on Watermans motion.15
C. The Superior Court Did Not Abuse Its Discretion in
Declining Jurisdiction.
The decision to decline jurisdiction under the UCCJEA
is a discretionary one.16 In reviewing discretionary decisions,
it is not the role of the appellate court to reweigh the facts
and equities and substitute its judgment for the trial courts.
Instead, we must determine whether the trial court abused its
discretion.17 Here, we are not persuaded that the court abused
its discretion in declining jurisdiction.
1. New Mexicos statutes permit the exercise of
jurisdiction.
Mikesell argues first that New Mexico cannot exercise
jurisdiction because New Mexico is not Marys home state and
Alaska is. He claims that New Mexico can only have initial
custody jurisdiction if it is the childs home state or was the
home state within six months before the custody action began.
But under New Mexicos statutes, New Mexico courts can exercise
initial custody jurisdiction when New Mexico is not the home
state, as long as other conditions are met. New Mexicos version
of the UCCJEA provides that the New Mexico court has jurisdiction
if
[A] court of the home state of the child has
declined to exercise jurisdiction on the
ground that this state is the more
appropriate forum under Section 207 or 208
[40-10A-207 or 40-10A-208 NMSA 1978] and:
(A) the child and the childs parents, or the
child and at least one parent or a person
acting as a parent, have a significant
connection with this state other than mere
physical presence; and
(B) substantial evidence is available in
this state concerning the childs care,
protection, training and personal
relationships[.][18]
Section 40-10A-207 of New Mexicos statutes corresponds to AS
25.30.360, the statutory section the superior court used here in
deciding to decline jurisdiction.19
Here, no one contests that Alaska is the childs home
state. Mikesell argues that because the superior court had
previously decided that Alaska was Marys home state, New Mexico
could not exercise custody jurisdiction. But whether Alaska had
exclusive home state jurisdiction is irrelevant to the question
whether the superior court properly declined to exercise this
jurisdiction. Even though both the UCCJEA and the Parental
Kidnapping Prevention Act20 (PKPA) give a preference to home state
jurisdiction in custody matters,21 both also permit a home state
to decline jurisdiction.22 Alaska declined to exercise its home
state jurisdiction on inconvenient forum grounds in this case,
finding that New Mexico was the more appropriate forum to decide
custody. Thus, New Mexico can exercise jurisdiction if Mary and
at least one of her parents have a significant connection with
New Mexico and substantial evidence about her care is available
in New Mexico.23 Mikesell conceded in the superior court that
both parties have a significant connection with New Mexico. In
his brief before this court he did not argue that substantial
evidence was unavailable in New Mexico. He has thus waived any
argument that New Mexico cannot establish jurisdiction based on
Marys connection with it.24 In any event, substantial evidence
appears to be available in New Mexico that is relevant to the
custody proceeding. Both of the parties lived in New Mexico with
the child, extended family whom the parties planned to call as
witnesses live there, and Waterman currently lives there and
cares for her other child there.
Mikesell cites two New Mexico cases, Trask v. Trask25
and Nelson v. Nelson,26 to argue that New Mexico cannot assume
custody jurisdiction. Both cases are distinguishable. In
neither case did a home state decline jurisdiction and find that
New Mexico was the more appropriate forum to determine custody.
In addition, the cases involved modification jurisdiction under
the Uniform Child Custody Jurisdiction Act (UCCJA), not initial
jurisdiction under the UCCJEA.27
Mikesell suggests that New Mexico cannot have
significant connection jurisdiction because Mary has not lived in
New Mexico recently except for summers with her mother. Although
the UCCJA required that substantial evidence for purposes of
establishing initial jurisdiction be about the childs present or
future care, protection, training, and personal relationships,28
the UCCJEA does not limit evidence to present or future care.29
According to a comment to the UCCJEA, [t]he jurisdictional
determination should be made by determining whether there is
sufficient evidence in the State for the court to make an
informed custody determination. That evidence might relate to
the past as well as to the present or future. 30
Mikesell also argues that the superior court order was
contrary to this courts opinion in Atkins v. Vigil.31 In Atkins,
the superior court decided that it did not have jurisdiction to
hear a custody dispute even though Alaska was the childs recent
home state because a California guardianship proceeding, which
had been filed before the Alaska custody action, preempted
Alaskas jurisdiction.32 We reversed because the UCCJEA and the
PKPA give a preference to a childs home state in exercising
jurisdiction.33 But Atkins is silent about jurisdiction when the
home state declines jurisdiction because it is an inconvenient
forum, as it did here. Based on the foregoing, we conclude that
New Mexico may properly exercise custody jurisdiction in this
case.
2. The superior court did not improperly weigh the
factors.
Alaska Statute 25.30.360(b) sets out a list of factors
for a court to consider in deciding whether to decline
jurisdiction as an inconvenient forum. Mikesell contends that
the superior court applied the [statutory] factors in a manner
inconsistent with controlling preceden[t]. He relies heavily on
our decisions interpreting the UCCJA,34 which preceded the UCCJEA,35
in arguing that the superior court erred by not considering the
best interest of the child in making its jurisdictional decision.
Waterman answers that the superior court properly weighed the
factors and notes that the Alaska court was not making a custody
determination but a decision about which court was better able to
make the custody decision.
Alaska Statute 25.30.360(b) provides:
(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 domestic 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) an 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.
In this case, the parties agreed that domestic violence was not
an issue and that they had not selected a state to assume
jurisdiction over a custody dispute. The court considered the
remaining factors in its decision.36 Of these factors, it decided
that factors (2), (4), and (6) favored New Mexicos exercise of
jurisdiction, and that factors (7) and (8) did not favor either
forum.
Mikesell concedes that the child lived outside Alaska
for most of her life but maintains that our decision in Szmyd v.
Szmyd37 was factually similar and thus required the Alaska court
to retain jurisdiction. But Szmyd is distinguishable. Szmyd
involved a custody modification where the changed circumstances
alleged in the motion for modification were the instability of
the custodial parent and her interference with visitation.38 We
held in Szmyd that California, the state where the custodial
parent and child lived, was a more appropriate forum than Alaska,
in part because the relevant evidence about the change in
circumstances was more readily available in California.39 Unlike
Szmyd, this is an initial custody action, so the evidence should
not focus on either party. Also, the list of statutory factors
for the superior court to consider was different at the time
Szmyd was decided than it is now: the length of time a child had
resided outside of Alaska was not a listed factor when Szmyd was
decided.40
At the time the motion was filed in this case, it was
undisputed that the child had lived for a little more than one
year in Alaska but had lived the rest of her life in New Mexico
and Arizona. The courts finding that this factor the length of
time the child lived outside Alaska favored New Mexico is
supported by uncontested evidence in the record. Nothing
suggests that the superior court improperly evaluated or weighed
this factor.
Mikesell next argues that the court improperly placed
too much weight on a finding that it was more inconvenient for
the mother to litigate in Alaska than for the father to litigate
in New Mexico. He relies on Rogers v. Rogers41 and asserts that
the court committed reversible error by failing to consider the
best interest of the child in deciding the jurisdictional
question. He also claims that the record is totally void as to
evidence of [the parties] relative resources.
Again, Mikesells best interest argument ignores
statutory changes in Alaskas child custody jurisdiction statute.
One of the most significant changes relevant to Mikesells
argument is that the UCCJEA removed the childs best interest as a
factor in both inconvenient forum decisions and questions of
initial jurisdiction.42 According to the comment accompanying the
UCCJEA, the best interest factor was removed because it tended to
create confusion between the jurisdictional issue and the
substantive custody determination.43 The best interest language
was deemed unnecessary for jurisdictional issues.44 Mikesell does
not argue convincingly that the childs best interest is still a
factor that a court must consider in deciding whether to decline
jurisdiction in custody cases.45 We hold that under the UCCJEA
the superior court was not required to make a best interest
analysis in deciding whether to decline jurisdiction.
Although the evidence was sparse, the court had
adequate evidence before it to support its finding that travel to
a distant forum would be more difficult for Waterman than
Mikesell even though both parties had limited financial
resources. The court had information about Watermans income from
her child support guidelines affidavit and a copy of her 2006
federal tax return.46 Additionally, Waterman was represented in
New Mexico by an attorney from New Mexico Legal Aid. Watermans
income tax return shows that she has another child living with
her as well. Mikesell had sufficient resources to retain private
counsel in Alaska and asserted in his motion for reconsideration
that he does have limited ability to bring Waterman and some
witnesses to Alaska. Overall, the evidence supports the courts
determination that Waterman has more limited financial means than
Mikesell. Mikesell does not show how this factor weighed more
heavily in the courts analysis than other factors.
In his discussion of the parties financial
circumstances, Mikesell contends that the court should have
addressed the issue of the availability of a court custody
investigator in Alaska, which he asserts is not available in New
Mexico. In the superior court and at oral argument before us,
Waterman responded that the New Mexico court can appoint a
guardian ad litem. The availability of a court custody
investigator in Alaska to parents with limited financial means is
not relevant to a determination of the relative financial
circumstances of the parties.47 If the Alaska court custody
investigator rather than a private custody investigator were
appointed, it could decrease litigation costs overall. But it
does not have any bearing on the relative financial circumstances
of the parties.
In arguing that the court improperly considered factor
(6) the nature and location of evidence required to resolve the
pending litigation Mikesell again cites Szmyd v. Szmyd.48 He
asserts that the issues in this case are the same as those in
Szmyd and concludes that the superior court order was clearly
contrary to controlling preceden[t]. As we noted above, Szmyd
was a modification case, and this court focused its attention on
the changes in circumstances alleged in the modification motion
when it decided that California would be a better forum.49 In
contrast, this case is an initial custody determination, so there
is no need to focus on alleged changed circumstances.
Although Mikesell argues that nothing in the record
indicates that the parties relatives in New Mexico or Arizona
would be testifying in the custody case, his own witness list
named three witnesses from New Mexico, including Marys
grandmother. Watermans Alaska witness list named all individuals
mentioned in [the] Custody Investigators report as well as an
expert from New Mexico. Waterman stated in other filings that
her witnesses were all in New Mexico and will be unable to travel
to Alaska to meaningfully help the [c]ourt.
The superior court recognized that more recent evidence
was available in Alaska, but considered that educational and
medical evidence is more amenable to telephonic or written
presentation. At oral argument before us, Mikesell emphasized
alleged disputes between the parties about medical and
educational issues, asserting that the testimony of professionals
who have recently dealt with Mary is more readily available in
Alaska. But as the superior court noted, the credibility of
witnesses such as doctors is less likely to be questioned in the
same way that the credibility of relatives is, potentially making
personal observation of relatives and other lay witnesses more
important in assessing credibility. The superior court also
noted that New Mexico would be expected to have information
available about both parents because both parents have lived in
New Mexico, whereas Alaska has no information about Waterman as
she has never lived here. We cannot say that the superior court
abused its discretion or improperly weighed this factor when it
decided that this factor favored jurisdiction in New Mexico.
Finally, with respect to factor (8), the familiarity of
each court with the facts and issues in the litigation, Mikesell
asserts that the Alaska court erroneously assumed that New Mexico
[c]ourts have dealt with the parties in a 2002 child support
action. Although Mikesell and the New Mexico Child Support
Enforcement Division entered into a stipulated judgment and order
that was filed with and approved by the New Mexico court in 2002,
the Alaska court specifically stated that it placed no weight on
the child support action. In any event, the court found that
this factor did not favor either forum, and Mikesell does not
argue here that the court should have found that this factor
favored Alaska.
IV. CONCLUSION
Because we conclude that a hearing was not necessary
and because Mikesell has failed to show that the superior court
abused its discretion in declining to exercise jurisdiction, we
AFFIRM the order of the superior court.
_______________________________
1 The record does not reflect precisely when or why
Mikesell moved to Fairbanks.
2 It appears that Waterman moved back to New Mexico in
2006: she stated in her initial pleadings filed May 17, 2007 in
the Alaska court that she had just finished a year of teaching
middle school English at a local private school and at oral
argument before us, she said that she moved back to New Mexico in
June 2006.
3 A childs home state for purposes of custody
jurisdiction is the state in which the child lived with a parent
or a person acting as a parent for at least six consecutive
months, including any temporary absences, immediately before the
commencement of a child custody proceeding. AS 25.30.909(7).
Waterman does not contest that Alaska was Marys home state when
Mikesell filed the custody action.
4 AS 25.30.300.910.
5 Pinneo v. Pinneo, 835 P.2d 1233, 1235 (Alaska 1992)
(citing Szmyd v. Szmyd, 641 P.2d 14, 18 (Alaska 1982)).
6 Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008)
(quoting Byers v. Ovitt, 133 P.3d 676, 680 (Alaska 2006)).
7 Miller v. Clough, 165 P.3d 594, 599 n.8 (Alaska 2007)
(citing Fuller v. City of Homer, 113 P.3d 659, 662 (Alaska
2005)).
8 Acevedo v. Burley, 944 P.2d 473, 476 n.2 (Alaska 1997).
9 McCracken v. Davis, 560 P.2d 771, 774-75 (Alaska 1977).
10 Mikesell only mentioned one superior court finding in
his appellate argument, that the Alaska action short-circuited a
plan for Mary to attend first grade in New Mexico. This was not
a new issue raised in Watermans reply: Waterman discussed this
issue in her motion asking the court to decline jurisdiction. As
the superior court noted, Mikesell himself stated that the
parents had agreed to alternate custody on a yearly basis.
11 McCracken, 560 P.2d at 774-75.
12 Mikesells hearing request indicated that he would be
calling witnesses, so Mikesell actually asked for an evidentiary
hearing rather than oral argument. Cf. Alaska R. Crim. P. 42(e)-
(f).
13 See Meidinger v. Koniag, Inc., 31 P.3d 77, 85 (Alaska
2001) (citing Acevedo, 944 P.2d at 476 n.2).
14 Alaska R. Civ. P. 77(c); see also AS 25.30.360(b)
(stating that court shall allow parties to submit information to
consider in making inconvenient forum decision).
15 See Alaska R. Civ. P. 77(i) (permitting court to hear
motions on affidavits).
16 See AS 25.30.360(a) (providing that court may decline
jurisdiction); see also Szmyd v. Szmyd, 641 P.2d 14, 18 (Alaska
1982) (holding that decision to decline jurisdiction under
Uniform Child Custody Jurisdiction Act (UCCJA) is discretionary).
17 See Jerrel v. Kenai Peninsula Borough Sch. Dist., 567
P.2d 760, 767 (Alaska 1977).
18 N.M. Stat. 40-10A-201(a)(2) (2006) (bracketed
statutory citations in original).
19 Compare N.M. Stat. 40-10A-207 (2006) with AS
25.30.360.
20 28 U.S.C. 1738A (2000).
21 See Atkins v. Vigil, 59 P.3d 255, 258 (Alaska 2002)
(noting that PKPA and UCCJEA grant exclusive jurisdiction to the
home state); see also Unif. Child Custody Jurisdiction &
Enforcement Act (UCCJEA) 201 cmt. 1, 9 U.L.A. Part IA 672 (1997)
(noting that UCCJEA prioritizes home state jurisdiction in the
same manner as the PKPA).
22 28 U.S.C. 1738A(c)(2)(D) (2000); UCCJEA 207(a), 9
U.L.A. Part IA 682 (1997); see also AS 25.30.360(a).
23 N.M. Stat. 40-10A-201(a)(2) (2006).
24 See Tillmon v. Tillmon, 189 P.3d 1022, 1029 n.21
(Alaska 2008) (noting that issue waived when not discussed in
brief).
25 727 P.2d 88 (N.M. App. 1986).
26 910 P.2d 319 (N.M. App. 1995).
27 See Nelson, 910 P.2d at 321; Trask, 727 P.2d at 89-90.
New Mexico repealed the UCCJA and adopted the UCCJEA in 2001.
See 2001 N.M. Laws Ch. 114.
28 Unif. Child Custody Jurisdiction Act 3(a)(2)(ii), 9
U.L.A. Part IA 307 (1968).
29 UCCJEA 201(a)(2)(B), 9 U.L.A. Part IA 671 (1997); see
also AS 25.30.300(a)(3)(B).
30 UCCJEA 201 cmt. 2, 9 U.L.A. Part IA 672 (1997).
31 59 P.3d 255 (Alaska 2002).
32 Id. at 256-57. The superior court had also incorrectly
determined that California was the childs home state. Id. at
257.
33 Id. at 258.
34 Former AS 25.30.010.900 (repealed ch. 133, 4, SLA
1998).
35 The Alaska Legislature replaced the UCCJA with the
UCCJEA in 1998. Ch. 133, SLA 1998. According to the prefatory
note accompanying the uniform law, the UCCJEA substantially
revised the UCCJA because inconsistencies in interpretation had
resulted in a loss of uniformity among the States. 9 U.L.A. Part
IA 650 (1999).
36 The superior court appears to have combined the factors
in subsections .360(b)(3) and .360(b)(4) in its discussion.
37 641 P.2d 14 (Alaska 1982).
38 Id. at 21-22.
39 Id.
40 Id. at 18-19.
41 907 P.2d 469 (Alaska 1995).
42 Compare AS 25.30.300(a)(3) and AS 25.30.360(b) with
former AS 25.30.020(a)(3) and former AS 25.30.060(c).
43 UCCJEA 201 cmt. 2, 9 U.L.A. Part IA 672 (1997).
44 Id.; see also Welch-Doden v. Roberts, 42 P.3d 1166,
1175 (Ariz. App. 2002) (noting that UCCJEA removed best interest
analysis from initial jurisdictional determination).
45 A court issuing a custody order may at times still need
to consider a childs best interest when making a jurisdictional
decision. The PKPA provides that a custody determination is
consistent with the PKPA when the court making the determination
(1) has jurisdiction under its own laws and (2) another state has
declined jurisdiction and it is in the best interest of the child
that the court issuing the order assume jurisdiction. 28 U.S.C.
1738A(c) (2000). An order declining jurisdiction is not a
custody determination for purposes of the PKPA, so this
subsection is inapplicable here. 28 U.S.C. 1738A(b)(3) (2000).
46 Our review of the appellate record did not reveal a
child support guidelines affidavit from Mikesell.
47 See Alaska R. Civ. P. 90.6(a) (permitting court to
appoint court custody investigator if parties cannot afford
private custody investigator).
48 641 P.2d 14 (Alaska 1982).
49 Id. at 21-22.
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