Norfolk Virginia Child Custody UCCJEA Chesapeake JDR Guardianship Code 20-146.20 Temporary Emergency Jurisdiction

MARK BENNETT AND LISA BENNETT v. ELIZABETH ANN BENNETT-SMITH

COURT OF APPEALS OF VIRGINIA

August 12, 2008, Decided

The mother petitioned the Probate Court of Johnson County, Kansas for Letters of Co-Guardianship granting the Bennetts co-guardianship of Raven.  The probate court entered the co-guardianship order.  After the mother finished boot camp and was stationed in Norfolk, Virginia, the Bennetts executed a Consent of Co-Guardians to Termination of Guardianship.  The Kansas court entered an Order Terminating Guardianship, which provided that "the reason for the creation of the Guardianship no longer exists."  The mother married Raven's biological father, Bart Smith (Mr. Smith).  The Bennetts were concerned that Mr. Smith, a registered sex offender, had contact with Raven in violation of the terms of his parole.  Thus, the Bennetts petitioned the Juvenile and Domestic Relations District Court of the City of Chesapeake (Chesapeake JDR), seeking legal custody of Raven and, more specifically, entry of an emergency order. The Chesapeake JDR ordered that custody remain with the Bennetts,   with liberal visitation to the mother.  The mother appealed to the Chesapeake Circuit Court (trial court).  Bennetts filed a motion asking the trial court to decline jurisdiction pursuant to Code § 20-146.18 on the ground that Virginia was an "inconvenient forum" under the UCCJEA.  The Bennetts appealed to this Court, asserting the mother lost the parental presumption through her unfitness and voluntary relinquishment of custody while she was at Naval boot camp.  They argue the parties therefore should have stood equally before the trial court in its determination of what custody arrangement was in Raven's best interest according to a preponderance of the evidence.  On brief, for the first time, the Bennetts also contend the trial court lacked subject matter jurisdiction under the UCCJEA because Kansas had not declined to exercise its continuing and exclusive jurisdiction.  Bennetts contend the Kansas order providing co-guardianship was a child custody determination.

ISSUES:

The issue to be resolved in this case is whether the Order of the trial court was entered in valid exercise of its jurisdiction

ARGUMENTS:

A court of this Commonwealth that has jurisdiction under [the UCCJEA] to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.  When the Bennetts petitioned the Chesapeake JDR for custody of Raven in December 2004, they had a duty pursuant to Code § 20-146.20(A) to inform the court of any proceeding concerning Raven's custody, thereby advising the court whether it had initial child custody jurisdiction pursuant to Code § 20-146.12 or emergency jurisdiction pursuant to Code § 20-146.15.  During the entire period from December 2004 until the trial court's July 2, 2007 order, the Bennetts never sought any relief in the Kansas courts.  The Bennetts' position was that the Virginia courts had jurisdiction to determine Raven's custody until the trial court ruled against them and awarded custody to the mother.  No litigant will be permitted to approbate and reprobate -- to invite error . . . and then to take advantage of the situation created by his own wrong.  The Court found that the trial court had jurisdiction to enter the custody determination in this case based upon temporary emergency jurisdiction and based upon the pursuit of custody by the Bennetts in Virginia.

DECISION:

The appellate court affirmed the decision of the trial court granting sole legal and physical custody of Raven to the mother.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm's unofficial views of the Justices' opinions.  The original opinions should be consulted for their authoritative content.