August 6, 2013
IN RE THE MATTER OF: B.K., A Youth in Need of Care.
Father appeals the Order of the Sixth Judicial District Court, Park County, that placed custody of minor child, B.K., with Mother. Father and Mother divorced in Arkansas in 2007. The Arkansas Circuit Court granted Father's motion for a change of custody in 2009 after Mother had moved to Montana with B.K. in 2007. An Arkansas Appeals Court affirmed. Shields
v. Kimble, 375 S.W.3d 738 (Ark. Ct. App. 2010).
Mother filed a petition for an emergency change of custody with the Arkansas Circuit Court on August 20, 2009, in which she alleged that B.K. had been sexually abused by B.K.'s stepbrother while B.K. resided in Father's home in Arkansas. Arkansas authorities investigated the allegations and determined them to be unfounded. The Arkansas Circuit Court denied Mother's petition.
The Montana Department of Public Health and Human Services (Department) filed a petition in the Sixth Judicial District for immediate protection and emergency protective services, for adjudication of B.K.as a youth in need of care, and for temporary legal custody of B.K. The Department noted that B.K. was scheduled to return to Father's home in Arkansas and that B.K. had disclosed that she had been sexually abused by her stepbrother in Arkansas. The District Court granted the Department's request for immediate protection of B.K. The court further issued an order in which it declared B.K. to be a youth in need of care and granted temporary legal custody to the Department.
Following further legal proceedings and investigations, the Department filed a petition for change of legal custody of B.K., pursuant to § 41-3-438(3)(d), MCA. The District Court granted the State's petition and permanently placed B.K. with Mother. Father appeals.
Father argues on appeal that the District Court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to modify the custody order of the Arkansas Circuit Court. Father points out that the Arkansas Circuit Court issued an order specifically retaining jurisdiction over the custody dispute under UCCJEA on December 8, 2010. The District Court determined nevertheless that its temporary emergency jurisdiction superseded the jurisdiction of the Arkansas Circuit Court.
The Department has filed a response in which it concedes that the District Court exceeded its jurisdiction under UCCJEA. In light of this concession, and based upon our review of the record, we deem it appropriate to reverse and vacate the District Court's Order of January 4, 2013, that placed B.K. permanently with Mother. Accordingly,
IT IS HEREBY ORDERED that the District Court's Order of January 4, 2013, and any ancillary orders related to the custody of B.K., are vacated as void due to a lack of jurisdiction.
The Clerk of the Court is directed to provide a copy hereof to all counsel of record and to the Sixth Judicial District Court.