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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jason Mouritsen v. Julia Mouritsen, n/k/a Julia Taubert (3/13/2020) sp-7428
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JASON MOURITSEN, )
) Supreme Court No. S-17401
Appellant, )
) Superior Court No. 3AN-15-05986 CI
v. )
) O P I N I O N
JULIA MOURITSEN, n/k/a JULIA )
TAUBERT,
) No. 7428 - March 13, 2020
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Yvonne Lamoureux, Judge.
Appearances: Jason Mouritsen, pro se, Sumter, South
Carolina, Appellant. Robin A. Taylor, Law Office of Robin
Taylor, Anchorage, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
BOLGER, Chief Justice.
I. INTRODUCTION
A mother filed a motion for clarification, arguing that Alaska no longer had
exclusive, continuing jurisdiction over a child custody order under the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA) after she, her ex-husband, and
their two children lived in South Carolina for over a year. The father objected, arguing
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that he was still a resident of Alaska and he intended to return to Alaska after his service
in the Air Force. The superior court found that it did not have exclusive, continuing
jurisdiction over its initial custody order because neither the parents nor the children
presently resided in Alaska. The court also suggested that substantial evidence related
to custody existed in South Carolina, and therefore it was likely the more appropriate
forum.
We conclude that it was an error for the superior court to find that it no
longer had exclusive, continuing jurisdiction under the UCCJEA based on the parties'
physical presence in South Carolina. Additionally, because the parties and the court did
not have a full opportunity to address all of the relevant UCCJEA forum non conveniens
factors, we cannot review the court's jurisdictional ruling on this ground. We therefore
vacate the superior court's orders on jurisdiction and remand for further proceedings.
II. FACTS AND PROCEEDINGS
Jason Mouritsen and Julia Taubert have two daughters, born in 2005 and
2008. In November 2016 the superior court entered a divorce decree and custody order
providing for shared legal custody of their daughters. The court ordered the parties to
share physical custody equally if they lived in the same community and gave Mouritsen
primary physical custody if they lived a "significant distance apart." Mouritsen was
transferred to Shaw Air Force Base in South Carolina in 2017. Taubert moved to South
Carolina to maintain shared physical custody under the order.
In fall 2018, while living in South Carolina, Mouritsen and Taubert
disputed who would have the children over Thanksgiving break. Mouritsen filed a
motion with the superior court to enforce a request for vacation time. When Taubert's
attorney failed to oppose the motion in time, the court granted Mouritsen's request. The
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court found that it retained jurisdiction to enforce its custody order, noting that "[t]here
is also no indication that the Child Custody Order has been registered in South
1
Carolina."
A. Taubert's Motion To Clarify
Taubert filed a motion to clarify the order. In addition to requesting
clarification on the dates of vacation custody, Taubert informed the superior court that
she had registered the 2016 child custody order in South Carolina several months earlier.
She alleged that "[t]he children have lived there for over 1.5 years, attend school there
and continue to be in counseling there" and that "[t]hey have no family and no remaining
contacts in Alaska." Taubert argued that under these circumstances, the Alaska court no
longer had jurisdiction to enforce the custody order.
Mouritsen opposed this motion, arguing that registration of an out-of-state
custody order for its enforcement does not result in a change in jurisdiction. He
additionally argued that the Alaska court retained jurisdiction, and it would be
inappropriate for a South Carolina court to modify the Alaska custody order when he
remained an Alaska resident and would be retiring to Alaska with the children in 2019.
In Taubert's reply toMourtisen's opposition,shepresentedanewargument
that pursuant to AS 25.30.360 "[e]ven if this court felt it retained jurisdiction, it should
decline to exercise that jurisdiction in favor of South Carolina being a more convenient
1 Earlier that year, while all of the parties were living in South Carolina,
Taubert and Mouritsen disputed how the custody order applied to his temporary
deployments. Mouritsen filed a motion to enforce the custody order. The court came to
the conclusion that it "retained jurisdiction to enforce that Order," and issued an order
enforcing the custody agreement.
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2
forum." She asserted that all recent evidence related to the children's education and
medical care was located in South Carolina.
The superior court entered an order in January 2019, concluding that it did
"not have exclusive, continuing jurisdiction under AS 25.30.310" because "neither the
children, nor either parent, presently resides in Alaska, and . . . they have all been living
in South Carolina for over a year." The court noted that Taubert had registered the
custody order and filed a motion to modify in South Carolina. The court also observed
that "[i]t appears that South Carolina is a more appropriate forum to consider the motion
to modify custody, with the best evidence concerning the children's care, protection,
training, and personal relationships being available in South Carolina." It further stated
"In addition, under AS 25.30.310(b), this Court may modify custody now only if it has
jurisdiction to make an initial determination under AS 25.30.300, which it does not
have."
B. Mouritsen's Motion For Reconsideration
Mouritsen filed a motion for reconsideration, arguing that he continued to
reside in Alaska and that his time in South Carolina was a temporary absence on military
orders. He also argued that South Carolina was not a more convenient forum because
there was still substantial evidence about the children and their relationships in Alaska,
he intended to retire to Alaska with the children in late 2019, and moving the case to
South Carolina would result in further delays because of that state's alternative dispute
resolution requirement.
2 See AS 25.30.360(a) (requiring court to have jurisdiction to make
inconvenient forum determination).
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The superior court requested Taubert's response, and eventually denied
Mouritsen's motion for reconsideration. It concluded that "[w]hile Mr. Mouritsen and
the children may be considered residents of Alaska for tax purposes, vehicle and voter
registration, or for purposes of obtaining the Alaska Permanent Fund Dividend, none of
them 'presently resides in this state.' " The court explained that it did not consider the
21 months that Mouritsen, Taubert, and the children had spent in South Carolina to be
a "temporary absence," despite Mouritsen's "intent to return to Alaska upon his
3 The court reasoned:
retirement."
The children have been going to school in South Carolina and
they have been treated by medical providers in South
Carolina since they moved there. Both parties have been
working and living in South Carolina since they moved there.
The court is unaware of factual disputes [related to
jurisdiction] that would warrant an evidentiary hearing.
Mouritsen appeals.
III. STANDARD OF REVIEW
Whether a court has jurisdiction under the UCCJEA to modify a child
custody order is a question of law that we review de novo.4 Compliance with the
3 Mouritsen's intention to retire in Alaska had been clear since the creation
of the custody order in 2016.
4 Berry v. Coulman, 440 P.3d 264, 269 (Alaska 2019) ("Whether a court has
jurisdiction to modify a child support order presents a question of subject matter
jurisdiction, which is a question of law we review de novo."); Fox v. Grace, 435 P.3d
883, 885 (Alaska 2018) ("Whether a court can exercise jurisdiction under the UCCJEA
is a question of law, which we review de novo." (quoting Steven D. v. Nicole J., 308 P.3d
875, 879 (Alaska 2013))).
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5
procedural requirements of AS 25.30.360 is subject to our independent judgment.
IV. DISCUSSION
A. The Superior Court Had Exclusive, Continuing Jurisdiction Because
We Define "Presently Resides" In AS 25.30.310(a)(2) To Mean
"Domicile."
Mouritsen raises 14 points on appeal, many of which are arguments that the
superior court's denial of jurisdiction was erroneous. His main contention is that the
superior court erroneously declined jurisdiction by concluding that he did not "presently
reside" in Alaska. Mouritsen challenges the superior court's interpretation of the term
"presently resides" in AS 25.30.310(a)(2).
The superior court interpreted "presently resides" to mean living in the
state, while Mouritsen argues that, under AS 01.10.055, he "presently resides" in the
state through his continued Alaska residency. He asserts that "[h]e established his
residency by being physically present in the state for almost 10 years with the intent to
remain indefinitely and make a home in the state." Furthermore, he notes that his
demonstrated "intention to retire in Alaska and remain an Alaska resident has never
wavered." He asserts he "never established or claimed residency in South Carolina" and
Alaska is "his state of residency on his pay stubs, income tax returns, voter's registration,
car registrations(includingvehicles purchased whilein South Carolina), driver's license,
and receipt of PFD."
5 Mikesell v. Waterman, 197 P.3d 184, 186-87 (Alaska 2008) (citing Acevedo
v. Burley, 944 P.2d 473, 476 n.2 (Alaska 1997)) (reviewing decision not to hold an
evidentiary hearing for inconvenient forum motion using independent judgment).
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Under AS 25.30.310(a)(2) a court maintains exclusive, continuing
jurisdiction over a custody determination until a court "determines that neither the child,
nor a parent . . . presently resides in this state." In full, AS 25.30.310(a)(2) provides:
(a) Except as otherwise provided in AS 25.30.330, a court
of this state that has made a child custody
determination consistent with AS 25.30.300 or
25.30.320 has exclusive, continuing jurisdiction over
the determination until
. . .
(2) a court of this state or a court of another
state determines that neither the child, nor a
parent, nor a person acting as a parent presently
[ ]
resides in this state. 6
To address Mouritsen's argument that the denial of jurisdiction was
erroneous, we must determine whether the statute supports his interpretation of
"presently resides." "Presently resides" is not defined in Alaska's version of the
UCCJEA,7 nor have we defined it. "When we engage in statutory interpretation '[w]e
interpret the statute "according to reason, practicality, and common sense, considering
the meaning of the statute's language, its legislative history, and its purpose . . ." ' "8
Additionally, "we apply 'a sliding scale approach, where "[t]he plainer the statutory
6 AS 25.30.310(a)(2) (emphasis added).
7 See AS 25.30.909. Although the UCCJEA is a "uniform" multi-state
statute, we are applying Alaska's version of the statute. AS 25.30.300-.390.
8 Berry v. Coulman, 440 P.3d 264, 270 (Alaska 2019) (alteration in original)
(quoting Reasner v. State, Dep't of Health & Social Servs., Office of Children's Servs.,
394 P.3d 610, 617 (Alaska 2017)).
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language is, the more convincing the evidence of contrary legislative purpose or intent
must be." ' " 9
We begin our analysis by noting that Mouritsen's interpretation of
"presently resides" in AS 25.30.310(a)(2) would make this provision of the UCCJEA
equivalent to "residency" under Alaska law. Alaska's definition of "residency" in
AS 01.10.055 takes a holistic approach including a person's intent to remain and make
a home in the state:
(a) A person establishes residency in the state by being
physically present in the state with the intent to remain
in the state indefinitely and to make a home in the
state.
(b) A person demonstrates the intent required under (a) of
this section
(1) by maintaining a principal place of abode in the
state for at least 30 days or for a longer period
if a longer period is required by law or
regulation; and
(2) by providing other proof of intent as may be
required by law or regulation, which may
include proof that the person is not claiming
residency outside the state or obtaining benefits
under a claim of residency outside the state.
(c) A person who establishes residency in the state
remains a resident during an absence from the state
unless during the absence the person establishes or
claims residency in another state, territory, or country,
or performs other acts or isabsent under circumstances
9 Id. (quoting Reasner, 394 P.3d at 617 (alteration in original)).
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that are inconsistent with the intent required under (a)
of this section to remain a resident of this state.
The definition of "residency" provided in AS 01.10.055 is part of a series
of general definitions and rules of statutory construction that are meant to apply to
Alaska statutes unless they "would be inconsistent with the manifest intent of the
10 Nothing in the language or legislative history surrounding the Alaska
legislature."
legislature's adoption of the UCCJEA11 indicates an intent to depart from this definition
of "residency," which focuses on a person's intent to remain within the state. Thus
"presently resides" should be interpreted by reference to the definition of "residency"
under AS 01.10.055.
We continue our analysis by examining the history and purposes of the
UCCJEA. In discussing the motivations for the UCCJEA, courts have observed that
"[t]he increasing mobility of society has made the issue of child custody jurisdiction and
modification progressively more contentious."12 Under the previous Uniform Child
Custody Jurisdiction Act (UCCJA), there was "interstate jurisdictional conflict" because
"the issuing state could be divested of jurisdiction . . . by the child and one parent's move
10 AS 01.10.020.
11 AS 25.30.300-.390.
12 Brandt v. Brandt, 268 P.3d 406, 410-11 (Colo. 2012) (en banc); see also
In re Marriage of Nurie, 98 Cal. Rptr. 3d 200, 221 (Cal. App. 2009) (noting UCCJEA
"reflects a deliberate effort to provide a clear end-point to the decree state's jurisdiction,
to prevent courts from treading on one another's jurisdiction, and to ensure that custody
orders will remain fully enforceable until a court determines they are not.").
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13
out of state." A parent dissatisfied with the custody order of one state thus had an
incentive under the UCCJA to move with the child to another state to establish
jurisdiction in a new forum.
Broadly speaking, the purposes of the UCCJEA are to address concerns
about forum-shopping, abduction of children, and relitigation, which can be especially
14 The comment to
disruptive and harmful to children involved in custody disputes.
UCCJEA section 101 explains that the Act should be interpreted according to its six
purposes:
(1) Avoid jurisdictional competition and conflict with
courts of other States in matters of child custody
which have in the past resulted in the shifting of
children from State to State with harmful effects on
their well-being;
(2) Promote cooperation with the courts of other States to
the end that a custody decree is rendered in that State
which can best decide the case in the interest of the
child;
(3) Discourage the use of the interstate system for
continuing controversies over child custody;
(4) Deter abductions of children;
13 Brandt, 268 P.3d at 411 (citing Angela R. Arkin, The Uniform Child
Custody Jurisdiction Enforcement Act: Part I , 29 C OLO. L AW. 73, 73 (2000)); see also
Steven D. v. Nicole J. , 308 P.3d 875, 881-82 (Alaska 2013) ("UCCJEA was enacted to
resolve conflicting jurisdictional requirements between states.").
14 See, e.g., Kevin Wessel, Home is Where the Court is: Determining
HI.L.R EV.1141, 1142
Residence for Child Custody Matters Under the UCCJEA, 79 U.C
(2012).
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(5) Avoid relitigation of custody decisions of other States
in this State;
(6) Facilitate the enforcement of custody decrees of other
States[.][15]
Courts in other states have reached conflicting conclusions about how to
define "presently resides" in UCCJEA section 202(a)(2) in light of the Act's purposes
and commentary.16 These inconsistent conclusions are unsurprising. Comment 2 to
UCCJEA section 202(a)(2) notes that "[t]he exact language of subparagraph (a)(2) was
the subject of considerable debate."17 Unfortunately, this comment seems to have done
more to confuse, rather than clarify, the interpretation of the term "presently resides."18
The comment does not define what it means to "reside" in a state.19 A particularly
divisive portion of the comment explains that "[i]t is the intention of this Act that
paragraph (a)(2) of this section means that the named persons no longer continue to
15 UNIF.C HILD CUSTODY JURISDICTION &E NF 'T ACT § 101 cmt., 9U.L.A.474
(1997) [hereinafter UCCJEA].
16
See MARIE FAHNERT & MÉLYSE MPIRANYA, CHILD-CUSTODY
JURISDICTION : THE UCCJEA & PKPA 31 (2015) (citing cases reaching different
conclusions on the meaning of "presently resides").
17 UCCJEA § 202 cmt. 2 at 511.
18 See, e.g., Brandt, 268 P.3d at 414 ("Unfortunately, comment 2 . . . has
confused construction of the operative statutory term 'presently reside' and has led to a
split among states in applying the act.").
19 See also RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 11 cmt. k (A M.
LAW INST . 1971) ("Residence is an ambiguous word whose meaning in a legal phrase
must be determined in each case."); Wessel, supra note 13, at 1143 ("In short, there is
no accepted definition of 'residence' and little case law on which to rely.").
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actually live within the State ," and "[t]he phrase 'do not presently reside' is not used in
20
the sense of a technical domicile ."
As a result of this language in the comment, some
21
courts have found that "presently resides" must mean "physical presence."
But Comment 2 also directs that "presently resides" in the UCCJEA should
be interpreted as the equivalent of "continues to reside" in the Uniform Interstate Family
22 In Berry v. Coulman we held that under the UIFSA, the term
Support Act (UIFSA).
"residence" means "domicile."23 In reaching our conclusion in Coulman, we considered
possible meanings of the term "residence," including both "physical presence" and
"domicile."24 And we examined the reasoning of other courts that have grappled with
the challenge of determining the meaning of "residence" for purposes of the UIFSA.25
We ultimately agreed with the analysis of the California Court of Appeals that
"residence" should not be defined as "physical presence" because the UIFSA's purposes
include ensuring uniform treatment of child support orders in different states and
20 UCCJEA § 202 cmt. 2 at 511-12 (emphasis added).
21 See, e.g. , Staats v. McKinnon , 206 S.W.3d 532, 549 (Tenn. App. 2006)
(discussing the comment to Tennessee Code § 36-6-217, Tennessee's version of the
UCCJEA).
22 UCCJEA § 202 cmt. 2 at 511 ("The phrase is also the equivalent of the
language 'continues to reside' which occurs in UIFSA § 205(a)(1) to determine the
exclusive, continuing jurisdiction of the State that made a support order.").
23 440 P.3d 264, 271 (Alaska 2019).
24 Id. at 270 ("The term [residence] is not defined elsewhere in the child
support statutes.").
25 Id. at 270-71.
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26
providing exclusivejurisdiction based on residence. Weconcludedthat"domicile"was
the correct interpretation.
We share the concern cited by courts in several other states that an
interpretation conflating the phrase "presently resides" with "physical presence" would
create additional jurisdictional instability in child custody disputes contrary to the
27 As explained by the Colorado Supreme Court, "the purposes
purposes of the UCCJEA.
of exclusive continuing jurisdiction . . . are to ensure that custody orders, once entered,
are as stable as possible and to discourage parents from establishing new 'home states'
26 Id. at 271 ("[U]nder the UIFSA, it is assumed that a person cannot have
more than one residence. This, however, does not comport with the more general
definition of residence noted above . . . . Instead, 'residence,' for the purpose of the
UIFSA, must mean 'domicile,' of which there can be only one." (alterations in original)
(quoting In re Marriage of Amezquita & Archuleta , 124 Cal. Rptr. 2d at 890 (Cal. App.
2002))).
27 See, e.g., Brandt v. Brandt, 268 P.3d 406, 410 (Colo. 2012) (involving the
very situation the UCCJEA was trying to prevent -twostates asserting jurisdiction over
a custody order - based on the understanding of "presently reside" as "physical
presence"); In re Marriage of Nurie, 98 Cal. Rptr. 3d 200, 219 (Cal. App. 2009)
(interpreting "presently reside" to mean continuously maintaining a residence in
California; physical presence out of state for prolonged periods did not mean parent had
relocated); Russell v. Cox, 678 S.E. 2d 460, 462 (S.C. App. 2009) (stating court "did not
believe the legislature intended that this term ['presently resides'] apply only to those
situations in which all parties to the dispute are physically present within the borders of
the state whose jurisdiction is at issue").
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28
for their children to re-litigate the issue of custody in a friendlier forum." The court
further reasoned:
This statutory requirement for determination is consistent
with the UCCJEA's emphasis on the primacy of exclusive
continuing jurisdiction as a means to ensure the stability of
custody orders and to discourage parental kidnapping. To
hold that the term 'presently reside' means only physical
presence would undercut the actual statutory language and
purpose that centers on exclusive continuing jurisdiction
remaining in the issuing state unless that jurisdiction has been
28 Brandt, 268 P.3d at 414 (citing Thompson v. Thompson , 484 U.S. 174, 180
(1988)). In Thompson the Supreme Court discussed similar concerns in the analogous
context of the Parental Kidnapping Prevention Act (PKPA):
[A] parent who lost a custody battle in one State had an
incentive to kidnap the child and move to another State to
relitigate the issue. This circumstance contributed to
widespread jurisdictional deadlocks like this one, and more
importantly, to a national epidemic of parental kidnaping. At
the time the PKPA was enacted, sponsors of the Act
estimated that between 25,000 and 100,000 children were
kidnaped by parents who had been unable to obtain custody
in a legal forum.
Thompson, 484 U.S. at 180-81 (citing Parental Kidnapping Prevention Act of 1979:
J. Hearing on S. 105 before the Subcomm. on Criminal Justice of the Judiciary Comm.
and the Subcomm. on Child &Human Dev. of the Comm. on Labor &Human Res. , 96th
Cong., 2d Sess. 10 (1980) (statement of Sen. Malcolm Wallop)). UCCJEA § 202(a)(2)
used "presently resides" to be consistent with the PKPA. UCCJEA § 202 cmt. 2 at 511
("The phrase ['presently resides' in the UCCJEA] is meant to be identical in meaning to
the language of the PKPA which provides that full faith and credit is to be given to
custody determinations made by a State in the exercise of its continuing jurisdiction
when that 'State remains the residence of . . . .' ").
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clearly divested, enabling the new state to assume
[29]
jurisdiction.
The South Carolina Court of Appeals has followed a similar approach,
holding that the relevant inquiry is whether the parent has relinquished residency in the
state with exclusive, continuing jurisdiction.30 And as the California Court of Appeals
has explained, a party may have more than one residence and "the crucial question under
the [UCCJEA] is not whether Husband 'resided' [elsewhere], but whether he stopped
residing in California."31
We agree with the California Court of Appeals that neither the only nor the
best way to interpret the phrase "presently resides" is as "physical presence" in a state:
Wife insists that the term "presently" must be given effect in
the statute, and that it means continuing jurisdiction may be
lost based on where the parties are "actually living,"
regardless of their volition or intent. We perceive a different
significance to the word "presently," namely that the
29 Brandt, 268 P.3d at 416.
30 Russell, 678 S.E. 2d at 462.
31 In re Nurie, 98 Cal. Rptr. 3d at 219 (emphasis in original) (interpreting
California's version of the UCCJEA); see also Brandt, 268 P.3d at 416 (fearing situation
in which "the issuing state would lose jurisdiction if [a] [p]arent were temporarily out-of-
state on . . . military assignment").
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determination of relocation must be made during the period
[32]
of non-residence in the decree state.
Under this understanding of "presently resides," "a parent's bare intent to
return to the decree state may not be sufficient for retention of jurisdiction if he has
otherwise moved from the state . . . ."33 Rather it "necessitates an inquiry broader than
'technical domicile' into the totality of the circumstances that make up domicile - that
is a person's permanent home to which he or she intends to return to and remain."34 In
this way, "technical domicile," meaning "meeting thetechnicalrequirementsofdomicile
for specific purposes, including, for example, the obligation to pay state taxes," may be
distinguished from a more holistic understanding of "domicile" - a permanent home
with an intent to remain.35
Wehold that theterm"presently resides"should beinterpreted consistently
with "residency" under Alaska law.36 This interpretation furthers the stated purposes of
the UCCJEA and makes this provision of the UCCJEA consistent with the UIFSA. We
32 In re Nurie , 98 Cal. Rptr. 3d at 219-20 (footnote omitted) (citing In re
Marriage of Amezquita & Archuleta , 124 Cal. Rptr. 2d 887, 890 (Cal. App. 2002)); see
also In re Amezquita , 124 Cal. Rptr. 2d at 890 (noting "general definition of residence
. . . allow[s] for multiple residences," but " 'residence' for the purpose of the UIFSA,
must mean 'domicile,' of which there can be only one").
33 In re Nurie, 98 Cal. Rptr. 3d at 220.
34 Brandt, 268 P.3d at 410.
35 Id. at 415; see also UCCJEA § 202 cmt. 2 at 512 (explaining "[t]he phrase
'do not presently reside' is not used in the sense of a technical domicile.").
36 See AS 01.10.055(a) ("A person establishes residency in the state by being
physically present in the state with the intent to remain in the state indefinitely and to
make a home in the state.").
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conclude that the superior court erred when it determined that it no longer had exclusive,
continuing jurisdiction based on the parties' physical presence in South Carolina.
B. The Superior Court Did Not Engage In A Full Factual And Legal
Analysis Of The Forum Non Conveniens Issue.
Mouritsen argues that the superior court should have held an evidentiary
hearing on the inconvenient forum issue, or, in the alternative, at least afforded him the
opportunity to properly brief the issue. He notes that Taubert did not ask the court to
"decline to exercise . . . jurisdiction in favor of South Carolina being a more convenient
forum" until her reply to his opposition. Mouritsen asserts that he did not have an
opportunity to respond to this argument at that point in the proceedings. He additionally
argues that the court failed to consider all relevant factors in AS 25.30.360(b), which
governs the forum non conveniens analysis.
If an Alaska court has jurisdiction over a custody proceeding, it may cede
that jurisdiction under AS 25.30.360 if it "determines that it is an inconvenient forum
37
under the circumstances and that a court of another state is a more appropriate forum."
Alaska Statute 25.30.360(b) lays out factors that a superior court should consider before
determining that a forum is inconvenient for custody proceedings: Among these factors
are the amount of time the child has lived outside the state, the location of relevant
evidence, "the ability of the court of each state to decide the issue expeditiously," and the
38 Because the superior court found that it did not
familiarity of each court with the case.
have exclusive, continuing jurisdiction under AS 25.30.310(a)(2), it did not fully
37 AS 25.30.360(a); see also Steven D. v. Nicole J. , 308 P.3d 875, 883 (Alaska
2013).
38 AS 25.30.360(b)(2), (6)-(8).
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consider whether Alaska would be a forum non conveniens, as that inquiry became
irrelevant. The court only noted, "It appears that South Carolina is a more appropriate
forum to consider the motion to modify custody, with the best evidence concerning the
children's care, protection, training, and personal relationships being available in South
39 The court therefore did not engage in a full factual and legal analysis of the
Carolina."
forum non conveniens issue.
On remand the superior court could consider ceding jurisdiction under the
forum non conveniens factors. If it does, both parties should be provided an opportunity
to submit information on the inconvenient forum factors.
V. CONCLUSION
Based on the foregoing, we VACATE the superior court's orders on
jurisdiction and REMAND for further proceedings.
39 See AS 25.30.360(b)(6) (considering "the nature and location of the
evidence required to resolve the pending litigation"). Alaska Statute 25.30.360(a)
provides that "[t]he issue of inconvenient forum may be raised on motion of a party, the
court's own motion, or request of another court."
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