Appeal from the District Court of Richland County, Southeast Judicial District Judicial District, the Honorable Richard W. Grosz, Judge.
The opinion of the court was delivered by: Maring, Justice.
This opinion is subject to petition for rehearing. [Go to Documents]
[Download as WordPerfect]
REVERSED AND REMANDED. Opinion of the Court by Maring, Justice.
[¶1] Julie Castro appeals from a district court order dismissing without prejudice her interstate custody proceeding against Crescencio Castro for custody of the parties' minor child. We conclude the district court misapplied the law for exercising jurisdiction for an interstate custody proceeding, and we reverse and remand for further proceedings.
[¶2] Julie Castro grew up in North Dakota. She moved to Illinois in 2006 for work, where she met Crescencio Castro. They married in June 2009, and lived in Illinois during their marriage. They initially separated in the fall of 2009, but reunited in November 2009. Julie Castro learned she was pregnant in August 2010. The parties separated and reunited again in October 2010, but they finally separated in November 2010, and Julie Castro moved to North Dakota in December 2010. She thereafter reestablished residency in North Dakota, and the parties' child was born in North Dakota in May 2011. Julie Castro and the child have lived in North Dakota since the child's birth.
[¶3] Crescencio Castro commenced a divorce action against Julie Castro in Illinois in June 2011. In September 2011, Julie Castro sued Crescencio Castro in North Dakota district court for primary residential responsibility and decision making authority of the parties' child, alleging she is a North Dakota resident, Crescencio Castro is an Illinois resident, they are parties to a pending Illinois divorce action, the child was born in North Dakota and has resided in North Dakota since birth, and North Dakota is the home state of the child with custody jurisdiction under N.D.C.C. ch. 14-14.1, the Uniform Child Custody Jurisdiction and Enforcement Act ["UCCJEA"]. Crescencio Castro did not answer the complaint.
[¶4] In October 2011, Julie Castro moved for a default judgment, or, alternatively, for interim relief. After a telephonic conference with an Illinois trial court in the pending Illinois divorce proceeding, the North Dakota district court issued a preliminary decision, ruling North Dakota was the child's home state and had jurisdiction to make an initial child custody determination. However, the district court said that because Crescencio Castro was seeking only visitation and not custody in the Illinois proceeding, North Dakota was an inconvenient forum to resolve visitation issues. The court explained:
a. Mr. Castro will not be disputing Ms. Castro's physical custody of the child [in the Illinois proceeding] and as such, there is no specific evidence tied to North Dakota that is necessary for any resolution of such issue.
b. As to visitation, the allegations that Mr. Castro abuses alcohol which certainly would be relevant to the issue of visitation, any such alleged evidence is wholly and solely available in Illinois, not North Dakota, which makes ...