Khalil Sarraj, 4807 N. Karlov, Apt. 2, Chicago, IL 60630 (pro se Respondent)

Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Huspeni, Judge.

Appellant challenges the district court's refusal to exercise jurisdiction. Because Illinois has concurrent jurisdiction, because the Illinois action was brought first in time, and because the Minnesota district court communicated with the Illinois court before declining jurisdiction, we affirm.

The record suggests that on or before November 18, 1993, father made a motion in the Illinois court. While the record does not identify the type of motion father made, mother apparently failed to appear before the Illinois court to address the motion.

On April 30, 1996, mother moved the Minnesota court to transfer jurisdiction from Illinois to Minnesota for the purpose of seeking unpaid child support, determining visitation, and seeking attorney fees. Mother's motion was heard on June 27, 1996, before a Hennepin County District Court judge. On June 28, 1996, the district court (a) consulted with the Illinois court; (b) found that a custody motion was pending before the Illinois court; (c) was told that the Illinois judge wished to hear the change of venue motion; (d) declined to exercise jurisdiction; (e) ordered both parties to appear in the Illinois court to argue their motions; and (f) ordered that the Illinois judge be served with a copy of her order. This appeal followed.

a three-step approach is employed. First, the court must look to section three of the Act to determine whether it, in fact, does have jurisdiction. If it determines it does, its inquiry next focuses on whether another custody proceeding is pending in a court of another state which likewise has jurisdiction pursuant to the provisions of section three of the Act. Finally, if dual jurisdiction exists, the inconvenient forum issue must be addressed.

Schmidt v. Schmidt, 436 N.W.2d 99, 104 (Minn. 1989).

First Step: Minnesota Jurisdiction

Under the UCCJA, Minnesota courts have jurisdiction to hear custody matters if, among other things, Minnesota is the child's "home state." Minn Stat. § 518A.03, subd. 1(a) (1996). "Home state" is defined as

the state in which the child immediately preceding the time involved lived with the child's parents, a parent, or a person acting as parent, for at least six consecutive months * * *.

Minn Stat. § 518A.02(e) (1996).

Here, because mother and children have lived in Minnesota for over six months and currently reside here, Minnesota has "home state" jurisdiction.[1]

Second Step: Dual Jurisdiction

The next inquiry is whether there is another "proceeding" pending in a court of another state that has jurisdiction. Abu-Dalbouh, 547 N.W.2d at 704.

A Minnesota court may not exercise its jurisdiction under the UCCJA,

if at the time of 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 the provisions of [the UCCJA] * * *.

Minn Stat. § 518A.06, subd. 1 (1996).

Here, mother does not contest the fact that Illinois has jurisdiction nor does she dispute the district court's finding that there is a custody motion pending before the Illinois court. Further, Illinois has adopted and is "substantially in conformity" with the UCCJA. See 750 ILCS 35/1 et seq. (1996). The district court properly declined to exercise its jurisdiction.

Third Step: Inconvenient Forum

States with simultaneous jurisdiction have a duty to communicate and cooperate in order to determine which forum is most appropriate. Nazar v. Nazar, 505 N.W.2d 628, 631 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993). A court that has jurisdiction under the UCCJA "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. Minn. Stat. § 518A.07, subd. 1 (1996). "May" is permissive. Minn. Stat. § 645.44, subd. 15 (1996). Therefore, Minn. Stat. § 518A.07, subd. 1, is reviewed under an abuse of discretion standard.

The district court did not specifically address the inconvenient forum issue in its findings. The district court, however, did consult the Illinois court and it appears that the Illinois court will address mother's concerns about whether Illinois is an inconvenient forum for her. Because the Minnesota district court can only undertake the inconvenient forum analysis to determine if Minnesota, not Illinois, is a convenient forum, the district court did not abuse its discretion.

Lastly, mother argues that the district court erred because this is an emergency situation where the court should take jurisdiction. Emergency jurisdiction is available under the UCCJA when it is necessary in an emergency to protect a child because the child has suffered from or been threatened with abuse. Minn. Stat. § 518A.03, subd. 1(c) (1996).

The record indicates that in the past the father allegedly threatened to take the children out of the country, and that in 1992 father was found guilty of domestic battery against mother in Illinois. There is nothing in the record, however, to indicate that the father has abused the children or that mother's appearance before the Illinois court would subject the children to abuse or a threat of harm. While we are not insensitive to the concerns expressed by mother regarding the rigors and the costs of traveling to Illinois, these concerns are not sufficient to permit this court to find that an emergency exists under the UCCJA. Mother's argument must fail.

Affirmed.

[ ]¹While father has not filed a brief, he has requested that this case be determined on the merits. See Minn. R. Civ. App. P. 142.03 (if a respondent fails to file a brief, "the case shall be determined on the merits"). To the extent that he argues or has argued that jurisdiction in one state precludes another state from having jurisdiction, his argument is without merit. See Nazar v. Nazar, 505 N.W.2d 628, 631 (Minn. App. 1993) (holding that under the UCCJA, different state courts may have simultaneous jurisdiction), review denied (Minn. Oct. 28, 1993).