This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-1946

 

 

In Re the Welfare of D.K.

 

 

Filed April 10, 2001

Affirmed; motion granted
Klaphake, Judge

 

Houston County District Court

File No. F700405

 

John Kotsias, 12389 County Road 10, Caledonia, MN  55921 (pro se appellant)

 

Robert Youngerman, Southern Minnesota Regional Legal Services, Inc., 66 East Third Street, P.O. Box 1266, Winona, MN  55987 (for respondent mother)

 

            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellants John and Rita Kotsias challenge the denial of their petition for temporary emergency jurisdiction over D.K., John’s son from a prior marriage, for the purpose of ordering a temporary emergency change in custody or emergency visitation.  Because the district court properly found that it had no jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Minn. Stat. §§ 518D.201-.210 (2000), and the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A (1994 & West. Supp. 2000), we affirm.

D E C I S I O N

            A district court’s determination of jurisdiction is a legal issue, which this court reviews de novo.  McLain v. McLain, 569 N.W.2d 219, 222 (Minn. App. 1997), review denied (Minn. Nov. 18, 1997).  Under the newly enacted UCCJEA, effective January 1, 2000, a Minnesota district court may exercise jurisdiction in a child custody matter when (1) Minnesota is the home state of the child, defined as the state where the child has lived with a parent for six months prior to commencement of the custody proceeding; (2) no other state can claim jurisdiction as home state, or the home state declines to exercise jurisdiction, if the child and one or both parents has a significant connection to Minnesota; (3) all other states that could claim jurisdiction decline to do so because Minnesota is acknowledged to be the most appropriate forum because of convenience or parental conduct; or (4) no court of any state can claim jurisdiction under the previous three clauses.  Minn. Stat § 518D.201(a) (2000). 

            There is no basis for primary jurisdiction in Minnesota in this matter.  D.K. has lived all his life in Illinois, which is his home state, and Illinois continues to exercise jurisdiction.  D.K. has no significant connection to Minnesota; he has visited the state only once, as an infant, and his only other contact is via telephone calls to his father.

            Temporary emergency jurisdiction may be exercised if

the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child,  is subjected to or threatened with mistreatment or abuse.

 

Minn. Stat. § 518D.204(a) (2000).  Appellants urge this court to interpret this section of the UCCJEA to permit temporary emergency jurisdiction upon a finding of abuse or mistreatment, regardless of whether the child is present in the state.

            The provisions of the newly enacted UCCJEA have not yet been interpreted.  The predecessor act, the Uniform Child Custody Jurisdiction Act (UCCJA), Minn. Stat. §§ 518A.01-.25 (1998), contained similar language granting jurisdiction to make an initial decree or modification where

the child is physically present in this state and (1) the child has been abandoned or (2) it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent[.]

 

Minn. Stat. § 518A.03, subd. 1(c) (1998) (repealed Jan. 1, 2000 by 1999 Minn. Laws ch. 74, art. 3, § 18).  This court reversed a district court determination of jurisdiction under this clause, where no emergency circumstances were alleged and where the child was not present in Minnesota.  Beier v. Beier, 371 N.W.2d 52, 55-56 (Minn. App. 1985). 

            Appellants argue that the UCCJEA changes to this section of the UCCJA removed the dual requirement of presence in the state together with emergency circumstances.  The comment to this newly enacted section of the UCCJEA states:

            The provisions of this section are an elaboration of what was formerly [Minn. Stat. § 518A.03, subd. 1(c)].  It remains, as Professor Bodenheimer’s comments to that section noted, “an extraordinary jurisdiction reserved for extraordinary circumstances.”

 

Minn. Stat. Ann. § 518D.204 cmt. (West Supp. 2001).  This section codifies and clarifies several aspects of what had become common practice in emergency jurisdiction cases under the UCCJA and PKPA.  First, a court may take jurisdiction to protect a child even though it can claim neither home state nor significant connection jurisdiction.  Second, the duties of states to recognize, enforce, and not modify a custody determination of another state do not take precedence over the need to enter a temporary emergency order to protect the child.

            While this commentary lends some support to appellants’ position that in extraordinary situations a court may exercise jurisdiction where the child is not present in the state, it must be read in context with the federal PKPA. The PKPA states in its version of temporary emergency jurisdiction that a custody determination can be made by a state if it has jurisdiction under state law and

the child is physically present in such [s]tate and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse[.]

28 U.S.C.A. § 1738A(c)(2)(C) (1994).  This language is more explicit than the UCCJEA in defining that presence, as well as an additional emergency situation, is required.

            Appellants’ reliance on Nazar v. Nazar, 474 N.W.2d 206 (Minn. App. 1991), review denied (Minn.  Oct. 16, 1991) is misplaced.  In Nazar, Minnesota was the home state and this court remanded to permit appellant to test in the Minnesota court whether Louisiana had properly assumed emergency jurisdiction.  Id. at 208.

            This court has stated that under the former UCCJA “[w]hen the federal PKPA precludes exercise of UCCJA jurisdiction, we must give preemptive effect to the federal enactment.”  McLain, 569 N.W.2d at 224 (citations omitted).  Because Minnesota meets none of the requirements for exercise of jurisdiction under either the UCCJEA or the PKPA, it is preempted from assuming jurisdiction.  While appellants have made a compelling presentation in support of their visitation rights, the vindication of those rights must properly be done in the courts of Illinois.

            Affirmed; motion granted.