FIRST DIVISION

DOYLE, C. J.,

PHIPPS, P. J., and BOGGS, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

November 19, 2015

In the Court of Appeals of Georgia

A15A0978. PRABNARONG v. OUDOMHACK.

PHIPPS, Presiding Judge.

In this appeal, we review the question of whether a Georgia trial court properly

exercised emergency jurisdiction when it, in contravention of an order issued by a

court in the state of Washington awarding physical custody of a minor child to the

child’s father, awarded temporary custody of the child to the child’s maternal uncle

after the death of the child’s mother (who had been the primary custodial parent and

had resided with the child in Georgia at the time of her death). Because there was no

basis for the trial court’s exercise of emergency jurisdiction, we reverse.

The pertinent facts of this appeal are undisputed. The mother of the minor

child, V. P.,1and the child’s father, Sirichai Prabnarong, were divorced by decree

1

 V. P. was born on June 12, 2001.
entered in a Washington court on December 20, 2005. Pursuant to a parenting plan

the court incorporated into the divorce decree, the mother was awarded primary

physical custody of V. P., and later moved with V. P. to Georgia. The mother

remarried and had another child. V. P. resided in Georgia for nine years before her

mother died on October 15, 2014; she lived with her mother and stepfather. V.P’s

maternal grandparents and uncle resided nearby in Georgia. After the divorce (and

before the mother’s death), the father had continued to live in Washington, and had

exercised visitation with V. P. during the child’s summer breaks from school.

In November 2014, after V. P.’s mother died, V. P.’s father obtained from the

same Washington court that had issued the divorce decree and parenting plan an order

awarding him primary physical custody of V. P. Days later, V. P.’s maternal uncle

filed in the Superior Court of Gwinnett County a motion for an emergency hearing,

and a petition requesting that the divorce decree and parenting plan that had been

entered in Washington in 2005 be registered in Georgia, and that the Georgia court

modify the parenting plan by ordering that he be awarded joint legal and primary

physical custody of V. P., “with [V. P.’sfather] continuing to have summer parenting

time as has been the case since 2005.” The uncle asserted in his petition that V. P.’s

father “hasthreatened to mistreat[V. P.] by removing her fromeverything she knows,

2
including her stepfather, youngersister, aunts, uncles, maternal grandparents, friends,

teachers and classmates.” The uncle presented as an exhibit to his petition an

“Affidavit of Election of [V. P.]” wherein then 13-year-old V. P. expressed her desire

to “visit with [her father], but stay in Georgia.” V. P. averred that she elected to live

with her stepfather and uncle on a permanent basis, and she acknowledged that her

uncle was asking the court to order that he be her permanent custodian, and that her

father have visitation rights. V. P. attached to her affidavit two handwritten

documents – one entitled, “Why I want to stay in GA,” and the other entitled, “Why

I don’t want to stay in WA.”

V. P.’s father responded to the uncle’s petition by filing in the Gwinnett action

a pleading entitled, “Registration of Foreign Judgment . . . and Motion to Enforce.”

He sought to register the custody order he had obtained from the Washington court

after V. P.’s mother had died, which order awarded him primary physical custody of

V. P.

After a hearing on the matter, the Gwinnett court entered an order which

provided that the Washington divorce decree “is hereby made the Order of this

Court.” In the same Gwinnett order, the court recognized the November 12, 2014

Washington order that the father had presented for registration, which order awarded

3
primary physical custody of V. P. to her father; and the court stated that “[i]t is

undisputed that upon the Mother’s death, legal custody of the Child is with the

[Father].” Nonetheless, the court found that it had emergency jurisdiction pursuant

to OCGA § 19-9-64 (a) “based upon the Affidavit of Election of [V. P.] and the

handwritten attachmentsthereto, that [V. P.] has been subjected to or threatened with

mistreatment or abuse.” The court then ordered that V. P. “shall remain in the

physical custody and care of the [uncle] pending transfer of the case to the Juvenile

Court of Gwinnett County and appointment of a guardian to determine the proper

permanent physical custodian of [V. P.].”

Upon the father’s appeal of that order, he enumerates two errors. First, he

contends that “[t]he trial court erred by not enforcing the foreign judgment of child

custody [he had] registered with the Gwinnett County Court.” But, as the Gwinnett

court recognized the Washington order which placed primary custody of V. P. with

her father, the pertinent issue appears to be, as the father contends in his second

enumerated error, whether “[t]he trial court erred by exercising temporary emergency

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jurisdiction . . . where the circumstances and well-being of the child did not demand

immediate action.”

2

“Jurisdiction is a question of law to which appellate courts apply a de novo

standard of review.”3

“Except as otherwise provided in Code Section 19-9-64, a court

of thisstate may not modify a child custody determination made by a court of another

state,”4

unless certain circumstances exist that are not pertinent here. Pursuant to

OCGA § 19-9-64 (a), “[a] court of thisstate hastemporary emergency jurisdiction [to

modify a child custody determination made by a court of another state] if the child is

present in this state and . . . it is necessary in an emergency to protect the child

because the child . . . is subjected to or threatened with mistreatment or abuse.”

2 See OCGA § 19-9-86 (b) (“A court of this state shall recognize and enforce,

but may not modify, except in accordance with Part 2 of this article, a registered child

custody determination of a court of another state.”).

3

In the Interest of M. M., 315 Ga. App. 673, 674 (1) (727 SE2d 279) (2012)

(footnote omitted);see generally Zinkhan v. Bruce, 305 Ga. App. 510, 511 (699 SE2d

833) (2010) (“Since the superior court’s decision as to whether it had subject matter

jurisdiction to consider the . . . petition for custody was based on an application of

law to undisputed facts, we apply a de novo standard of review.”) (citation and

punctuation omitted).

4

 OCGA § 19-9-63.

5
The handwritten documents V. P. attached to her affidavit provided the

following. In the document entitled, “Why I want to stay in GA,” V. P. stated thatshe

desired to remain in Georgia because she felt safe here, she needed to “be there for”

her younger sister, she loved the school she attended, she made good grades in

school, and she knew everybody at school. V. P. expressed concern that the credits

she was earning for high-school-level courses would not transfer to any school she

would attend in Washington.

In the document entitled, “Why I don’t want to stay in WA,” V. P. stated that

she did not want to reside in Washington because it was notsafe there. She stated that

“once when [she] was about 6 or 7 years old,” her father permitted someone she did

not know to supervise her. V. P. stated that on another occasion, her father had left

her at a public swimming pool in the sole care and custody of a cousin; V. P. did not

state the age of that cousin. And finally, V. P. stated that sometimes she feared her

stepbrother because he kept guns and knives, and he smoked in his room and drank.

In Rozier v. Berto,

5

this court held that there was no true emergency which

required the Georgia court to exercise emergency jurisdiction pursuant to OCGA §

19-9-64 (a) for the protection of the child, where the child wasin the physical custody

5

 230 Ga. App. 427 (496 SE2d 544) (1998). 

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of the non-custodial parent who sought the temporary order pursuant to 19-9-64 (a),

and that parent’s version of the facts (that the child was filthy, improperly clothed,

and generally neglected in the custodial parent’s care) did not present an “immediate

danger”6

to the child. In Jackson v. Sanomi,

7

the Supreme Court of Georgia, citing

Rozier, held that the non-custodialmother’s allegationsthat her child feared returning

to the foreign country where the child resided with his father (the custodial parent)

because of ongoing violence there did not meet the requisite criteria pursuant to

OCGA § 19-9-64 (a) and the Georgia trial court was not authorized to exercise

temporary emergency jurisdiction to contravene an order entered by a foreign state

that had awarded physical custody of the child to the father.8

And in Anderson v. Deas,

9 where a mother sought to invoke the jurisdiction of

a Georgia court pursuant to OCGA § 19-9-64 (a), this court held that the trial court

wasfully authorized to decline to exercise emergency jurisdiction, on the ground that

6

 Id. at 429.

7

 292 Ga. 888 (742 SE2d 717) (2013). 

8

 Id. at 890.

9

 273 Ga. App. 770 (615 SE2d 859) (2005). 

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the child was in no “immediate danger”10

because she continued to be in the custody

of the parent who sought the temporary order pursuant to OCGA § 19-9-64 (a), and

that “there was no true emergency which required the Georgia court to exercise

jurisdiction for the protection of the child.”

11 The mother in Anderson had alleged that

the father had been threatening to kill the mother and harm the child, and that during

a subsequent phone conversation, the father screamed at the child and threatened to

beat the child the next time he saw her.12

In this case, there was no true emergency which required the Georgia court to

exercise jurisdiction for the protection of V. P. The child, who was 13 years old at the

commencement of this (Georgia) custody case, was in the physical custody of her

uncle who was petitioning for a change of custody, and was in no immediate danger

under any version of the facts alleged in her affidavit and attachments, i.e., alleged

neglect by her father when she was six or seven years old and fear of her stepbrother

because he kept weapons and he smoked and drank.

13 Nor are we persuaded that, as

10

 Id. at 771 (1) (a).

11

 Id. (punctuation and footnote omitted).

12

 Id. at 770.

13

 See generally Jackson, supra; Anderson, supra at 770-771; Rozier, supra.

8
the uncle asserts, certain consequences of V. P. going to live with her father in

Washington – that she would no longer live with her stepfather or half sister, or near

her maternal relatives and friendsin Georgia – amounted to an act of mistreatment or

abuse by V. P.’s father and were sufficient to invoke the trial court’s emergency

jurisdiction pursuant to OCGA § 19-9-64 (a).

“The general rule is that the court where the parent with legal custody resides

has the exclusive right to award change of custody.”14 Given that the Georgia court

recognized the Washington order which awarded the father legal custody of V. P. and

that V. P.’s allegations of neglect by her father and fear of her stepbrother arose from

acts that had allegedly occurred and circumstances that had allegedly existed in

Washington, the uncle’s claims should be presented in Washington.

15

Notably, the order fromwhich the father appealsruns afoul of another statutory

requirement. If a previous child custody determination exists, as in this case, “the

14 Matthews v. Matthews, 238 Ga. 201 (232 SE2d 76) (1977) (citations

omitted); see Chatman v. Palmer, 328 Ga. App. 222, 224 (1) (761 SE2d 616) (2014);

OCGA § 19-9-23 (a).

15 See generally Rozier, supra at 429 (although father contended that his child

may have been neglected by the mother who was the custodial parent, such neglect,

if it existed, arose and was discovered by the father in the state where the mother

lived with the child, and the father could have presented his claims in that state).

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temporary order must specify a period that the court considers adequate to allow the

person seeking the temporary order to obtain an order from the court maintaining

continuing jurisdiction over the custody of the child[ ].”16

“The order issued in this

state remainsin effect until an order is obtained from the other state within the period

specified or the period expires.”17 Here, the trial court failed to specify in its order any

period of time within which the uncle must obtain an order from the Washington

court.

Judgment reversed. Doyle, C. J., and Boggs, J., concur.

16 Taylor v. Curl, 298 Ga. App. 45 (679 SE2d 80) (2009) (emphasis supplied).

See OCGA § 19-9-64 (c). 

17

 OCGA § 19-9-64 (c).

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