FAMILY MATTERS: Inconvenient Forum – Tennessee Bar Association

January 1, 2017

Posted by in In the News.


In the area of family law, an infrequently used provision, but an important one nonetheless, is the doctrine of inconvenient forum, which permits a court in Tennessee to decline jurisdiction in a custody case if the court determines that, though it is a permissible forum to hear the matter, Tennessee is not the best court to exercise its jurisdiction. This article will discuss the procedure a Tennessee court should use, and a family law practitioner should be aware of, when determining which forum is the most appropriate for child custody litigation, as well as some background regarding the need for this statute.

First drafted in 1997 by the National Conference of Commissioners on Uniform State Laws in order to update and settle disputed interpretations of the 1968 Uniform Child Custody Jurisdiction Act (UCCJA) — which was drafted by the same body and adopted by all 50 states, the U.S. Virgin Islands and the District of Columbia — the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) sought to create a uniform method of dealing with custody jurisdiction across the country.

Prior to the enactment of the UCCJA in 1968, there was no unified effort by the states or the federal government to insure that there was a single, valid custody and/or support order for each child or family group, leading to the undesirable situation where multiple courts each had legitimate jurisdictional claims over the same case and, at times, contradictory or misaligned provisions for the welfare of the child or children in their rulings.

While the impetus behind the UCCJEA was a good one, its implementation did not lead to the desired results. The UCCJEA of 1997 was designed to realign the practices in the various states with respect to child custody and support after many state legislatures had made significant modifications to the original Uniform Child Custody Jurisdiction Act that made practices and procedures less than uniform throughout of the country. The UCCJEA reiterated that each state must give full faith and credit to each other state regarding the procedure and enforcement of custody decisions and established uniform procedures throughout the country for determining not simply which court or courts may have jurisdiction to decide the matter, but more importantly, a procedure for determining which forum was the most appropriate one to exercise that jurisdiction given a range of factors that are discussed below.[1] After the passage of the UCCJEA, Tennessee adopted the same language from the Conference and codified it in Tenn. Code Ann. 36-6-201, et seq. to offer guidance to Tennessee courts when making determinations regarding child custody issues.

In order for a Tennessee court to determine that it is the appropriate forum for a child custody action, a court must follow the statutory provisions of Tenn. Code Ann. § 36-6-219. In order to exercise jurisdiction, a court must determine that Tennessee is or was, within 6 months prior to the commencement of the action, the home state of the child or children,[2] that, by the same analysis, another state does not have the same jurisdiction, or if it does, has declined to exercise such jurisdiction,[3] and one of more the parents has a “significant connection” to Tennessee.[4] In addition to establishing this threshold of jurisdiction, the Tennessee court should examine the case to determine if it has sufficient information on the child’s situation to make a reasonable, informed determination as to what is in the best interest of the child.[5]

However, the inquiry into whether Tennessee should exercise does not end at that point. A court may have determined that it has authority, but now it must determine if it should use that authority because Tennessee is the most appropriate forum for the case. As Tenn. Code Ann. § 36-6-216(a)(2)(A)(3) notes, other courts in other states may meet all of these criterion, including Tennessee, and, therefore, hold concurrent jurisdiction. A Tennessee court must then turn its analysis to Tenn. Code Ann. § 36-6-221 and 36-6-222 to make a final determination as to whether jurisdiction is appropriate in an individual case.

If a court in another state has appropriate, concurrent jurisdiction in a case and there is already an action that has commenced in that jurisdiction, forum shopping on the part of one of the parties is prohibited and Tennessee will decline to exercise jurisdiction over the case.[6] Yet, even if all of the above criterion are met by the analysis of the court in Tennessee, that court may still decline to exercise its jurisdiction if it feels that Tennessee would be an inconvenient forum for the litigation in the case based on an analysis under Tenn. Code Ann. § 36-6-222.

A Tennessee court with jurisdiction 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. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.”[7] Before making that determination, the court must analyze numerous factors that the General Assembly has promulgated, by its adoption of the language in the UCCJEA, in order to assist the court in making that determination. These factors include the length of time the child has resided in the other state, the distance between the two courts in the respective jurisdictions, whether there was ever any agreement between the parties regarding forum, the financial circumstances of each of the parties involved in the case, the speed with which each court can render a decision in the matter, whether each court has access to appropriate evidence about the child and the circumstances to conduct a thorough and proper assessment of what is in the child’s best interest and whether there has been or may be any domestic violence where a court needs to exert its protective powers on behalf of the child.[8] If, based on that analysis, the Tennessee court determines that Tennessee would be an “inconvenient forum” for the litigation and another state would be the more appropriate forum, the Tennessee court will stay the proceedings in Tennessee and decline to exercise its jurisdiction, permitting the other appropriate court to proceed with its similarly situated litigation with the caveat that the proceedings in the other state proceed promptly.[9]

An exception to all the above rules is provided for in case of an emergency that warrants the immediate intervention of the court if a child has been abandoned in Tennessee or in order to prevent “mistreatment or abuse” of the child.[10] Similar language was included in the previous versions of similar acts as well.

Though it may seem like a facet of the family law practice that is rarely used, the frequency of divorce and of relocation by citizens in today’s era make knowledge of this practice important for a family law practitioner. Fortunately, decades of work and modification have gone into the statutory procedures now in place to aid courts and practitioners, in making a determination that considers each party’s rights to a particular forum but also makes the best interest of the child the most critical factor of all.

Notes

[1] For a good discuss of the history of these two Acts, see State v. McKinnon, 206 S.W. 3d 532, 544-545 (Tenn.Court App. 2006)
[2] Tenn. Code Ann. § 36-6-216(a)(1)
[3] Tenn. Code Ann. § 36-6-216(a)(2)
[4] Tenn. Code Ann. § 36-6-216(a)(2)(A)
[5] Tenn. Code Ann. § 36-6-216(a)(2)(B)
[6] Tenn. Code Ann. § 36-6-221(a)
[7] Tenn. Code Ann. § 36-6-222(a)
[8] Tenn. Code Ann. § 36-6-222(b)
[9] Tenn. Code Ann. § 36-6-222(c)
[10] Tenn. Code Ann. § 36-6-219


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