Bohmer v. Bohmer: the model answer

Read the colors the same way as your marked-up File and Library: each highlight is the rule a fact serves, and the same color links a rule to the fact that triggers it.

dates / the 6-month clock temporary absence intent / time in Columbia notice, not controlling F1 violence F4 finances F5 evidence

Step one · The outline (what you jot before you write)

Two issues, each in IRAC. Note the authority next to every rule so you can cite it fast, and mark the facts in their colors so the write-up is just joining the dots.

Issue 1 · Home state: Franklin or Columbia on 6/30/08?

Issue 2 · Inconvenient forum: will Franklin decline? § 16-207; Brickman

Step two · The written answer (memo, full IRAC)

Essay on the left, teaching notes on the right. Every rule carries its citation; the highlighted facts match the outline and the marked-up File.

I. Home State: Franklin or Columbia

Whether Franklin or Columbia was Carrie's home state under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) when Alex filed his custody petition on June 30, 2008.

A Franklin court may make an initial custody determination only if Franklin is the child's home state on the date the proceeding commenced. § 16-201(a). The UCCJEA defines the home state as the state in which the child lived with a parent for six consecutive months immediately before the proceeding, and it provides that a temporary absence counts as part of that period. § 16-102(7). The home state has priority, and another state may act only if the home state declines under § 16-207.

Whether an out-of-state stay counts toward Franklin or instead starts a new home state turns on the difference between a temporary absence and a permanent relocation. Under In re Marriage of Mills (Franklin Ct. App. 2002), an absence is no longer temporary once the absent parent has formed the intent to reside permanently in another state and is in fact doing so. Intent is judged by the parent's conduct, such as renting a home, enrolling the child in school, and taking a job, and a stay that begins as temporary can ripen into a permanent move. The date the parent expressly tells the other parent is relevant but not controlling, and the six-month clock for the new state runs from when the intent formed and was acted upon.

Here, Carrie was first present in Columbia beginning December 1, 2007, when she stayed with her maternal grandparents while both parents remained in Franklin. That was a temporary absence, so under § 16-102(7) and Mills it counts as Franklin time and did not start a Columbia clock. Jessica's own departure on February 2, 2008 was also temporary at first: she told Alex she would be "back in a few weeks," showing no intent to relocate.

The absence became a permanent relocation only in late February, when Jessica decided not to return, found a job, and enrolled Carrie in the first grade in Columbia. Those acts are the same intent-establishing conduct the court relied on in Mills. Her March 1 statement to Alex that she was staying is relevant but, under Mills, not the controlling date, because the relocation was already underway.

Measuring from the earliest defensible relocation date, February 2, only about five months had passed when Alex filed on June 30, 2008, fewer than the six the UCCJEA requires. Columbia therefore could not have become the home state until August at the earliest.

In fairness, Alex will argue that Carrie was physically present in Columbia from December 1, 2007, more than six months before he filed, making Columbia the home state. That argument should fail, because a temporary absence is counted as home-state time in the left-behind state under § 16-102(7) and Mills, and the grandparent visit was temporary until Jessica relocated. If anything, dating the move to the March 1 notice shortens Columbia's period further.

Therefore, on Issue 1, Franklin was Carrie's home state when Alex filed on June 30, 2008, and Franklin has jurisdiction to the exclusion of Columbia unless it declines as an inconvenient forum under § 16-207.

II. Inconvenient Forum

Whether the Franklin court, though the home state, is likely to decline jurisdiction as an inconvenient forum so that the case can proceed in Columbia.

A home-state court may decline jurisdiction if it determines that it is an inconvenient forum and that a court of another state is more appropriate. § 16-207(a). The court weighs six factors: (1) whether domestic violence has occurred and is likely to continue and which state can best protect the parties and child; (2) the time the child has resided outside the state; (3) the distance between the courts; (4) the parties' relative finances; (5) the nature and location of the evidence, including the child's testimony; and (6) each court's familiarity with the case. § 16-207(b). Under In re Marriage of Brickman & Young (Franklin Sup. Ct. 2003), no single factor is dispositive and neither party bears a burden of proof, but the domestic violence factor is given greater weight than any other.

Here, the first and weightiest factor, § 16-207(b)(1), is a documented history of Alex's violence: years of abuse, a 2006 choking that produced a consent protection order, his possession of a hunting rifle, the February 1 incident in which he shook Jessica and destroyed family photographs, and threatening emails after she left. Jessica fled to Columbia out of fear, the very circumstance Brickman says supports declining, so Columbia can best protect Jessica and Carrie. This evidence is not as strong as in Brickman, where there were four criminal convictions and beatings during pregnancy, and Alex's email is partly conciliatory and mentions a therapist appointment; if he attended, he could argue his potential for future violence has abated—the showing the offender failed to make in Brickman. On balance the factor still favors Jessica.

On the second factor, § 16-207(b)(2), Carrie has lived in Columbia for about seven months, was born there, and has extended family there, although she also lived in Franklin for roughly four years. This factor is neutral or slightly favors Jessica, and it is weaker than in Brickman, where the children had five years in the new state.

On the third factor, § 16-207(b)(3), the courts are only about 100 miles—an hour and a half—apart, far less than the 400 miles in Brickman. As the noncustodial parent Alex is better positioned to travel, and Jessica's parents can help with Carrie, so this factor is neutral.

On the fourth factor, § 16-207(b)(4), Jessica earns about $10,000 in a new part-time job while Alex earns about $55,000 in stable employment. As in Brickman, the disparity favors the lower-earning custodial parent, so this factor favors Jessica.

On the fifth factor, § 16-207(b)(5), the evidence and witnesses are split: Carrie, Jessica, and the maternal family are in Columbia, but Alex and Carrie's earlier years, including her former school and friends, are in Franklin. Unlike Brickman, where the witnesses were concentrated in the new state, this factor is neutral.

On the sixth factor, § 16-207(b)(6), Franklin issued the 2006 protection order, but there is no prior custody case in either state, that order was by consent and has expired, and a certified copy can easily be used in Columbia. This factor is neutral or slightly favors Jessica.

Weighing the factors together and giving added weight to safety as Brickman directs, the domestic violence and financial factors favor Columbia and the rest are neutral, so no factor outweighs Jessica's safety concerns. The firm can make a strong argument that Franklin should decline, though because the violence here is milder than in Brickman and Alex has real counterarguments, the outcome is not certain.

Therefore, on Issue 2, the Franklin court is likely, though not certain, to decline jurisdiction as an inconvenient forum; if it does, it will stay its case on the condition that Jessica promptly file a custody proceeding in Columbia. § 16-207(c).