COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Senior Judge Duff 

Argued at Alexandria, Virginia 

DONALD A. BARNES 

 MEMORANDUM OPINION* BY 

v. Record No. 2774-95-4 JUDGE JOHANNA L. FITZPATRICK 

 NOVEMBER 12, 1996 

WINIFRED K. BARNES 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Michael P. McWeeny, Judge 

 Donald A. Barnes, pro se. 

 Kathleen O'Brien (Suzanne Gilbert; Fite & 

O'Brien, Ltd., on brief), for appellee. 

 

 The sole issue raised in this appeal is whether the trial 

court abused its discretion when it declined to exercise 

jurisdiction and deferred the custody determination of the 

parties' minor children to the State of Colorado. Finding no 

error, we affirm the trial court.1 

 Donald A. Barnes (appellant) and Winifred K. Barnes were 

married in Colorado in 1983. Three children were born of the 

marriage. The family lived in Colorado until the Summer of 1991, 

when they relocated to Virginia after appellant became employed 

in Washington, D.C. 

 On October 8, 1991, Mrs. Barnes returned to Colorado with 

 

 *Pursuant to Code § 17-116.101 this opinion is not 

designated for publication. 

 1Although appellant raised this issue several different 

ways, the jurisdictional determination issue subsumes appellant's 

other arguments. 
 2 

 

the children. On the same date, Mrs. Barnes' counsel filed 

divorce proceedings in Colorado. On October 11, 1991, appellant 

filed a custody petition in the Fairfax County Family Court 

(family court).2

 On October 17, 1991, Mrs. Barnes filed an 

additional custody petition in Colorado. Appellant then filed a 

divorce action in Fairfax County Circuit Court on October 25, 

1991. 

 Pursuant to a December 2, 1991 hearing on Mrs. Barnes' plea 

to jurisdiction, the Fairfax County Family Court found that Mrs. 

Barnes' October 8, 1991 Colorado divorce petition included a 

petition for custody, and stayed the Virginia custody proceedings 

initiated by appellant on October 11, 1991.3

 2At the time of some of these procedures, some of the 

hearings were held in that part of the juvenile and domestic 

relations district court that had been designated as the Family 

Court of Fairfax County on an experimental basis. Hereinafter, 

we will refer to those proceedings as having been held in the 

family court. 

 3The family court found that Colorado was the home state of 

the children, and stated: 

 [A]t the time [appellant] filed his custody 

action on October 11, 1991, a proceeding 

involving custody of the minor children was 

then pending in the State of Colorado . . . 

the proceedings which were initiated by 

[appellant] on October 11, 1991, be and the 

same are hereby STAYED pending a 

determination by the Colorado Court that 

either (1) declines jurisdiction or (2) 

exercises jurisdiction and makes an 

adjudication therein. In the event the 

Colorado Court declines jurisdiction 

concerning custody of the minor children, 

then the stayed proceedings may be brought 

forward on the Docket for an appropriate 

hearing and adjudication. In the event the 
 3 

 The Colorado trial court assumed jurisdiction of the custody 

issue, concluding that Colorado was the "home state" of the 

children under the Uniform Child Custody Jurisdiction Act 

(UCCJA); however, the court agreed that it lacked jurisdiction to 

adjudicate the divorce petition. On June 30, 1993, the Fairfax 

County Circuit Court affirmed the family court's stay issued 

December 1991, finding that the Colorado court properly assumed 

jurisdiction of the custody issue, and that Virginia should not 

assume jurisdiction under Code §§ 20-126 and 20-130.4

 In an 

earlier appeal to this Court, we affirmed the trial court's stay 

of the Virginia litigation pending resolution of the custody 

issue by the Colorado courts. See Barnes v. Barnes, Rec. No. 

0951-94-4 (April 4, 1995). 

 The divorce and equitable distribution issues continued in 

Virginia, and the trial court entered a final decree of divorce 

on April 22, 1994. Appellant again sought to have the custody 

issue determined in connection with the court's adjudication of 

the divorce. By opinion letter dated May 31, 1994, the trial 

(..continued) 

State of Colorado accepts jurisdiction and 

makes adjudication thereon, either party may 

 

 bring a certified copy of said Order to 

this Court for filing. 

 4Code § 20-126 provides the grounds for a Virginia court to 

exercise jurisdiction to make a child custody determination. 

Code § 20-130 provides the grounds for a Virginia court to 

decline jurisdiction "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." 
 4 

court denied the motion finding that the stay imposed by the 

family court remained in effect. 

 On May 4, 1995, the Colorado Court of Appeals held that the 

trial court in Colorado erred when it exercised jurisdiction over 

the custody of the parties' children issue because Colorado was 

not the children's "home state" under the UCCJA, and that 

appellant's October 11, 1991 Virginia petition was filed, and 

must be considered, first in time. Additionally, the appellate 

court stated: 

 We recognize that this might be an 

instance in which the trial court could have 

exercised jurisdiction under . . . the UCCJA, 

which allows the court to act if one of the 

contestants has a "significant connection" 

with this state and if there is substantial 

evidence in this state with respect to the 

children's "present or future care, 

protection, training, and personal 

relationships," so as to make it in the "best 

interests" of the children for the court of 

this state to assume jurisdiction. . . . 

 [T]he trial court here could not assert 

its jurisdiction, "unless the proceeding [in 

Virginia] is stayed by the court of 

[Virginia] because [Colorado] is a more 

appropriate forum."

* * * * * * * 

 [T]he cause [is] remanded to the trial 

court with directions to communicate with the 

Virginia court . . . and to ask the Virginia 

court to make a determination . . . whether 

it should defer its jurisdiction to Colorado 

and stay its proceedings with reference 

thereto. If the Virginia court enters such a 

stay, the trial court should proceed to 

determine whether it may assert jurisdiction 

over the custody . . . issue[]. 

(Emphasis added). 
 5 

 On June 19, 1995, appellant filed another motion in the 

trial court, requesting the court to lift the stay and assume 

jurisdiction over the custody issue based upon the Colorado 

appellate court's reversal of the Colorado trial court's initial 

determination to assume custody in Colorado. The Fairfax County 

Circuit Court again denied the motion and stated: 

 [E]xcept for five to six weeks in 1991, 

virtually all the children's contacts have 

been in Colorado . . . It has been suggested 

that as Virginia is "first in time," it 

should assume jurisdiction and fix the 

critical point for inquiry in October 1991 

 . . . . I cannot accept this argument, as it 

ignores both the four years since the 

separation during which the children have 

attended schools in Colorado and the central 

point of the present circumstances and best 

interests of the children. Accordingly, I 

find there are significant contacts with the 

State of Colorado and that Colorado is the 

more appropriate forum for determination of 

the issues of custody. The Circuit Court of 

Fairfax County, Virginia declines to exercise 

jurisdiction and defers to the District Court 

of Arapahoe County, Colorado. 

 Despite its convoluted procedural history, the issue in this 

appeal remains whether the trial court abused its discretion in 

deferring the custody determination of these children to 

Colorado. Appellant argues that the Fairfax County Circuit Court 

should have assumed jurisdiction because he filed "first in time" 

pursuant to Code § 20-129(A); the Colorado appellate court 

eventually dismissed Mrs. Barnes' custody petition; and the 

original conditions for lifting the stay were satisfied. 

Additionally appellant contends that Code § 20-126(A)(1) requires 
 6 

that the court consider only those facts existing at the time of 

the initial filing of the custody action and the trial court 

erred in considering events of the last four years. We find no 

merit in these contentions. 

 In construing the purposes of the UCCJA as adopted by 

Virginia, we stated as follows: 

 [T]he Virginia UCCJA was enacted to avoid 

jurisdictional competition and conflict with 

courts of other states in matters of child 

custody; to promote cooperation with courts 

of other states so that a custody decree is 

rendered in a state which can best decide the 

issue in the interest of the child; to assure 

that litigation over the custody of a child 

ordinarily occurs in the state that is most 

closely connected with the child and his 

family and where significant evidence 

concerning his care, protection, training, 

and personal relationships is most readily 

available; to assure that the courts of this 

state decline the exercise of jurisdiction 

when the child and his family have a closer 

connection with another state.

Mubarak v. Mubarak, 14 Va. App. 616, 618-19, 420 S.E.2d 225, 226 

(1992) (quoting Middleton v. Middleton, 227 Va. 82, 92-93, 314 

S.E.2d 362, 367 (1984)). Furthermore, we held that additional 

purposes of the UCCJA are as follows: 

 [T]o discourage continuing controversies over 

child custody; to deter abductions and other 

unilateral removals of children undertaken to 

obtain custody awards; to facilitate the 

enforcement of foreign custody orders and to 

avoid relitigating foreign custody decisions 

in [Virginia] so far as possible; and to 

promote the exchange of information and other 

forms of mutual assistance between [Virginia 

courts] and those of other states concerned 

with the same child[ren]. 
 7 

Middleton, 227 Va. at 93, 314 S.E.2d at 367. 

 Code § 20-130 dictates when a Virginia court may determine 

whether it is an inconvenient forum. The court must "consider if 

it is in the interest of the child that another state assume 

jurisdiction," and in so doing, the court may evaluate "the 

following factors, among others: (1) If another state is or 

recently was the child's home state; (2) If another state has a 

closer connection with the child and his family or with the child 

and one or more of the contestants; [and] (3) If substantial 

evidence concerning the child's present or future care, 

protection, training, and personal relationships is more readily 

available in another state." Code § 20-130(C). 

 "Any meaningful determination whether Virginia is the more 

appropriate forum for the father to assert his [custody] rights 

requires a consideration of the present circumstances of the 

children, their school and activities schedule, and their present 

health needs, both physical and emotional. Evidence of these 

considerations exists in the children's community, not in 

Virginia." Murabak, 14 Va. App. at 621, 420 S.E.2d at 228 

(emphasis added). 

 Sufficient evidence supports the trial court's finding that 

Colorado was the more appropriate forum to make the custody 

determination. The evidence established that the children were 

only present in Virginia for approximately five weeks before 

returning to Colorado, where they resided prior to this time. It 
 8 

is undisputed that the children lived in Colorado continuously 

since 1991, and "substantial evidence concerning [their] present 

or future care, protection, training and personal relationships" 

is readily available in Colorado. See Code § 20-130. 

Furthermore, the trial court was required to consider all 

relevant facts or events prior to the date of its jurisdictional 

determination in order to comply with the statutory mandates and 

the purpose of the UCCJA. 

 Upon review of the record, we find no abuse of discretion in 

the trial court's decision to defer exercising jurisdiction under 

the UCCJA and deferring the custody determination to the District 

Court of Arapahoe County, Colorado. Accordingly, we affirm the 

decision of the trial court. 

 Affirmed.