DA 07-0461

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 166

IN THE MATTER OF DECLARING

B.P. and A.P.

 Youths in Need of Care.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and For the County of Gallatin, Cause No. DN 1999-001

Honorable Wm. Nels Swandal, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Timothy J. Whalen, Attorney at Law, Laurel, Montana

For Appellee:

Leanne M. Schraudner, Attorney at Law, Bozeman, Montana

Submitted on Briefs: January 29, 2008

 Decided: May 13, 2008

Filed:

__________________________________________

Clerk

May 13 2008
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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 R.P., mother of B.P. and A.P., appeals the Montana Eighteenth Judicial District 

Court’s order denying her motion to dismiss. We reverse and remand.

ISSUE

¶2 A restatement of the issue is:

¶3 Did the District Court abuse its discretion in refusing to relinquish jurisdiction 

over the proceeding involving B.P. and A.P.?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 B.P. was born in July 1989, and A.P. was born in July 1993. They are the children 

of R.P. (hereinafter “Mother”) and T.P. (hereinafter “Father”). Mother and Father were 

divorced in April 1996 and the children remained in Mother’s custody in Montana. 

Shortly after the divorce Father moved to California. Beginning in November 1996 the 

Montana Department of Public Health and Human Services (Department) began 

receiving calls from concerned persons regarding the children’s and Mother’s extremely 

inappropriate behavior. Ultimately the Department was authorized to conduct temporary 

investigations and provide protective services. In February 1999 the District Court 

ordered the children be removed from Mother’s home and placed in therapeutic foster 

care. Mother appealed this order to the Montana Supreme Court and we affirmed the 

District Court. 

¶5 While the appeal was pending, the children, with court permission, traveled to 

California to spend six weeks with their father beginning in July 1999. During this time 

Father sought and was granted permission to keep the children in California until the next 
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adjudicatory hearing on the Department’s authority. In June 2000 the Department 

notified the District Court that it no longer wished to pursue temporary legal custody over 

the children as they were thriving under the care of their father in California. 

Subsequently in July 2000 the District Court held an adjudicatory hearing and took 

extensive testimony. In October 2000 the District Court issued its Findings of Fact, 

Conclusions of Law and Order (“custody order”). The court found that Mother had 

emotionally abused the children, and ordered that the children be permanently placed 

with their father. The court prohibited Mother from having any contact with the children 

until “such time as she has addressed her psychological disorders with the ongoing 

treatment of a psychologist or counselor in conjunction with a licensed psychiatrist.”

¶6 In its custody order, the court also specified the means by which Mother could 

resume contact with her children, after “she acknowledges her responsibility in 

emotionally abusing the[] children.” The court ordered Mother to seek psychological 

treatment and counseling. After she made sufficient improvement, and at the discretion 

of her treating psychologist and the children’s counselor, she could slowly re-establish 

contact with the children according to the court’s plan. Mother appealed the court’s 

Order. In November 2001 we affirmed the District Court’s custody order.

¶7 Following the court’s custody order, the children remained in California with their 

Father, where they have lived since July 1999. Mother relocated to Minnesota in the fall 

of 2002 and has not lived in Montana since that time. The State of Montana has had no 

contact with any of the family members since 2002.
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¶8 In September 2005 Mother violated the Montana court’s custody order by 

surprising Father and the children in California with an unauthorized visit. After 

Mother’s unannounced visit, Father registered the Montana District Court’s custody order 

with the California courts, so that the terms of the custody order could be enforced in 

California if necessary. Pursuant to Cal. Fam. Code Ann. § 3445 (West 2004), Mother 

received notice that Father had registered an out-of-state custody decree with the 

California courts. This notice explained that Mother had the right to contest the validity 

of the out-of-state decree by requesting a hearing within 20 days of the mailing of the 

notice. Mother did not request a hearing, and so the decree was confirmed.

¶9 In March 2007 Mother filed a “Motion to Dismiss” in the Montana Eighteenth 

Judicial District Court on the grounds that the Montana District Court no longer had 

jurisdiction over the matter because none of the parties lived in Montana. Mother sought 

the Montana District Court’s relinquishment of jurisdiction over the proceeding. The 

District Court denied her motion to dismiss, and this appeal followed. 

¶10 We note that in July 2007, B.P. turned 18 years old and is no longer subject to 

these proceedings.

STANDARD OF REVIEW

¶11 We review a district court’s decision on a motion to decline jurisdiction for abuse 

of discretion. In re Marriage of Fontenot, 2003 MT 242, ¶ 11, 317 Mont. 298, ¶ 11, 77 

P.3d 206, ¶ 11, rev’d in part on other grounds in In re Marriage of Fontenot, 2006 MT 

324, 335 Mont. 79, 149 P.3d 28.

DISCUSSION
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¶12 Did the District Court abuse its discretion in refusing to relinquish jurisdiction 

over the proceeding involving B.P. and A.P.?

¶13 Mother wishes to pursue an action for visitation in California. Accordingly, she 

sought to have the Montana District Court “dismiss” the youth-in-need-of-care 

proceeding that originated in Montana in 1999. While styled a “Motion to Dismiss,” the 

sole relief requested in Mother’s motion is the Montana District Court’s relinquishment 

of jurisdiction. She argues that pursuant to the Uniform Child Custody Jurisdiction and 

Enforcement Act (“UCCJEA”), codified under Title 40 of the Montana Code Annotated, 

the Montana District Court no longer has jurisdiction over these proceedings.

¶14 In response, Father argues that since the proceedings in the instant case were 

initiated under Title 41 (as opposed to Title 40), the UCCJEA does not apply. Title 41 

governs abuse and neglect proceedings, which is the type of proceeding initiated in this 

case in 1999. Title 41 contains a unique jurisdictional provision, which provides in 

relevant part: “In all matters arising under this chapter, the district court has jurisdiction 

over . . . a youth or other person subject to this chapter who under a temporary or 

permanent order of the court has voluntarily or involuntarily left the state or the 

jurisdiction of the court[.]” Section 41-3-103(1)(b), MCA. Father cites this provision in 

support of his contention that the District Court properly retained jurisdiction. Father 

also argues that “dismissal” of the abuse and neglect proceedings would “nullify” the 

Montana District Court’s custody order and eliminate the protections afforded by it.

¶15 The Department filed a brief in response to Mother’s motion to dismiss. The 

Department pointed out to the District Court that it no longer had a “legal interest” in this 
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matter, having permanently placed these children in the custody of their father in 

accordance with the court’s final custody order issued in October 2000. At that time the 

agency closed its case file. The DPHHS also opined that “this is an issue of comity in 

which a valid order has been entered in a Montana Court and California has adopted that 

order. The Montana order is valid and has been registered in California. At this time, it 

is appropriate for this case to proceed under the appropriate child custody laws, not under 

the child abuse and neglect laws of Montana.”

¶16 The District Court provided no findings in its order denying Mother’s motion, 

explaining simply that “the last order entered by this [c]ourt is a viable order and this 

[c]ourt retains jurisdiction.” It further stated that the last order “expressly provided for a 

mechanism by which mother could seek and maintain contact with the children. That 

order is valid and remains in effect, no matter in which [c]ourt(s) it may have been filed. 

Until and unless mother provides proof of compliance with the terms of that order, this 

[c]ourt will not consider any further motions from mother.”

¶17 The statute relied on by Father, § 41-3-103(1)(b), MCA, was enacted in 1974, and 

was part of the Uniform Child Custody Jurisdiction Act (“UCCJA”), the predecessor to 

the UCCJEA. The UCCJA was weaker than its successor in many ways, especially in 

that it was unclear whether the UCCJA applied solely to child custody determinations, or 

also to child abuse and neglect proceedings. In 1997, the National Conference of 

Commissioners on Uniform State Laws remedied this and other ambiguities by adopting 

the UCCJEA. The official comments to the UCCJEA illuminate this deliberate change in 

UCCJEA’s scope:
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The definition of custody proceeding in the UCCJA is ambiguous. 

States have rendered conflicting decisions regarding certain types of 

proceedings. There is no general agreement on whether the UCCJA applies 

to neglect, abuse, dependency, wardship, guardianship, termination of 

parental rights, and protection from domestic violence proceedings. The 

UCCJEA includes a sweeping definition that, with the exception of 

adoption, includes virtually all cases that can involve custody of or 

visitation with a child as a “custody determination.”

UCCJEA, 9 U.L.A. 651-52.

¶18 Montana and many other states, including California, adopted the UCCJEA in 

1999, which repealed and replaced all of the provisions of the UCCJA. Paslov v. Cox, 

2004 MT 325, ¶ 25, 324 Mont. 94, ¶ 25, 104 P.3d 1025, ¶ 25. The expanded reach of the 

UCCJEA is codified in Montana at § 40-7-103(4)(a), MCA, which defines “child custody 

proceeding” as:

[A] proceeding in which legal custody, physical custody, or visitation with 

respect to a child is an issue. The term includes a proceeding for divorce, 

separation, neglect, abuse, dependency, guardianship, paternity, termination 

of parental rights, and protection from domestic violence, in which the 

issue may appear.

Section 40-7-103(4)(a), MCA. In sum, both the UCCJEA drafters and the states which 

adopted it clearly intended to expand the reach of the statute to include child abuse and 

neglect proceedings. Thus, to the extent that § 41-3-103, MCA, and § 40-7-103(4)(a), 

MCA, conflict, § 40-7-103(4)(a), MCA, must prevail. See e.g. Ross v. City of Great 

Falls, 1998 MT 276, ¶ 18, 291 Mont. 377, ¶ 18, 967 P.2d 1103, ¶ 18 (holding that the 

later-enacted statute prevails, especially in light of clear legislative intent). The Montana 

District Court’s final order in the youth-in-need-of-care proceeding underlying this case 

expressly addressed custody and visitation involving B.P. and A.P.; consequently, the 
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proceedings in the instant case are governed by the jurisdictional provisions of the 

UCCJEA.

¶19 The relevant jurisdictional provision of the UCCJEA is § 40-7-202(1), MCA, 

which provides that:

[A] court of this state that has made a child custody determination 

consistent with 40-7-201 or 40-7-203 has exclusive, continuing jurisdiction 

over the determination until:

(a) a court of this state determines that neither the child, the child 

and one parent, nor the child and a person acting as a parent have a 

significant connection with this state and that substantial evidence is no 

longer available in this state concerning the child’s care, protection, 

training, and personal relationships; or

(b) a court of this sate or a court of another state determines that 

neither the child, a parent, nor any person acting as a parent presently 

resides in this state.

Under this statute, the Montana District Court retains “exclusive, continuing jurisdiction” 

over this matter until one of the two specific events described in subsections (a) or (b) 

occurs. These subsections are neither arbitrary nor confusing. The statute unequivocally 

states that exclusive and continuing jurisdiction exists until a court in this state 

determines that none of the relevant parties reside in Montana. While it is undisputed and 

well-documented that none of the relevant parties reside in Montana, the District Court 

merely stated in its order that Father and children do not live in Montana. Whether this 

was an oversight or an attempt to retain jurisdiction when jurisdiction was no longer 

authorized, the District Court was obligated to apply this statute, make such a 

determination and relinquish jurisdiction over this matter. Failure to do so constitutes an 

abuse of discretion.
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¶20 Due to the cursory nature of the District Court’s order of dismissal, we cannot 

determine whether it was persuaded by Father’s concern that “dismissal” of the 

proceeding would nullify the court’s final order in which Father was granted custody and 

appropriate restrictions were placed on Mother’s rights. We therefore address Father’s 

concern.

¶21 Under the UCCJEA, California must recognize and enforce Montana’s decrees. 

The California statute provides: “A court of this state shall recognize and enforce a child

custody determination of a court of another state if the latter court exercised jurisdiction 

in substantial conformity with [the UCCJEA].” Cal. Fam. Code Ann. § 3443 (West 

2004). No one disputes that the Montana District Court exercised legitimate jurisdiction 

when it issued the child custody determination. Additionally, as noted above, Father has 

registered the Montana custody order in California for the express purpose of California 

enforcement. Section 3445(a) of the California Code provides that “[a] child custody 

determination issued by a court of another state may be registered in this state, with or 

without a simultaneous request for enforcement.” Under these provisions, upon 

registration or after registration, Father may seek enforcement in California of Montana’s 

custody order.

¶22 In addition to being able to enforce the custody order, California may also modify 

the order under Cal. Fam. Code Ann. § 3423, which is California’s counterpart to 

§ 40-7-203, MCA. Both statutes provide that a state court may modify another state 

court’s custody order if the modifying court meets the requirements necessary to make an 

initial determination (e.g., residency of children, parent(s), significant connection) and 
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the modifying court or the initial court determines that none of the relevant parties reside 

in the state where the initial custody order was issued. Given this Court’s determination 

that neither the children nor their parents live in Montana, and the fact that the children 

and Father reside in California, the two necessary prerequisites to California jurisdiction 

over this matter are met. 

¶23 Lastly, Mother acknowledges on appeal that while she called her motion a 

“Motion to Dismiss,” she was seeking transfer of jurisdiction. Under the circumstances 

of this case and in light of the exclusive relief sought by Mother—relinquishment of 

jurisdiction—the District Court was obligated to apply the relevant jurisdictional 

provisions of the UCCJEA. Application of such required a determination that none of the 

relevant parties resided in the state of Montana and that Montana no longer had 

exclusive, continuing jurisdiction over the matter. The District Court should have issued 

an order relinquishing jurisdiction. The court abused its discretion in failing to do so.

CONCLUSION

¶24 For the foregoing reasons, we reverse and remand to the District Court with 

instructions to enter an order relinquishing jurisdiction over the Montana custody order.

/S/ PATRICIA COTTER

We concur: 

/S/ KARLA M. GRAY

/S/ JOHN WARNER
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/S/ JAMES C. NELSON

/S/ JIM RICE

Justice W. William Leaphart, dissenting.

¶25 I dissent from the Majority’s opinion because there were no ongoing proceedings 

for the District Court to dismiss in the instant case. As a result, I would affirm the 

District Court’s denial of Mother’s motion to dismiss.

¶26 The District Court’s March 18, 2000 Order adjudicated the children youths in need 

of care, and approved the Department’s request to award permanent custody to Father 

under § 41-3-406, MCA (now § 41-3-438, MCA). The court’s Order giving Father 

permanent custody of the children is a final order for the purposes of M. R. App. P. 4, 

which Mother appealed, and we affirmed. In re B.P., 2001 MT 219, 306 Mont. 430, 35 

P.3d 291.

¶27 All abuse and neglect proceedings concerning B.P. and A.P. were concluded with 

the District Court’s March 18, 2000 Order. Once the children were placed with Father, 

they were removed from the circumstances which placed them in danger of abuse or 

neglect. As a result, both the Department and the District Court’s jurisdiction over the 

proceedings came to an end. See e.g. In re A.C., 2004 MT 320, ¶ 17, 324 Mont. 58, ¶ 17, 

101 P.3d 761, ¶ 17 (placing children with their non-custodial parent who lived out-ofstate, and holding that the permanent placement “reliev[ed] the Department from any 
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further obligation, as the concern for them being youths in need of care was eliminated by 

such placement.”). 

¶28 Should Mother or Father wish to modify the existing custody order, entered by the 

Montana District Court and registered with the California courts, they are free to file the 

appropriate civil action to do so. In the instant case, however, the District Court properly 

denied Mother’s motion to dismiss, since all proceedings in this case were resolved by 

the court’s final judgment issued on March 18, 2000.

/S/ W. WILLIAM LEAPHART

Justice Brian Morris joins in the foregoing dissent of Justice W. William Leaphart.

/S/ BRIAN MORRIS