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ALSO INSIDE: Legislative Monitoring Committee Gears UpVolume 91 — No. 2 — February 2020FamilyLaw

contentsFebruary 2020 Vol. 91 No. 2THEME:Family LawEditor: Virginia HensonFEATURESPLUS6 The Inconvenient Truths about InconvenientForums in Child Custody ProceedingsBy Phillip J. Tucker and Becky Bryan Allen46Legislative Monitoring Committee Gears Upfor 2020 SessionBy Miles Pringle12 For the Children: Indian Status Is a PoliticalClassificationBy Austin R. Vance18 Legislature Clears Up Surrogacy Questionsin OklahomaBy Robert G. Spector24 Support of a Disabled Adult ChildBy Monica Dionisio and K ara Rose Didier28 Affidavit of Support Implications in DivorceBy Sajani “Ann” Zachariah and Cassity Gies32 A Soldier’s Rights and the OklahomaRelocation StatuteBy John P. Cannon40 Aspects of International Child AbductionBy Brita Haugland CantrellDEPARTMENTS4 From the President50 From the Executive Director52 Law Practice Tips58 Ethics & Professional Responsibility60 Board of Governors Actions65 Oklahoma Bar Foundation News66 Young Lawyers Division68 For Your Information70 Bench and Bar Briefs73 In Memoriam76Editorial Calendar77 What’s OnlinePAGE 46 – Legislative Monitoring Committee

From The PresidentThe State of the OBABy Susan B. ShieldsIT HAS BEEN A WONDERFUL FIRST MONTH.Being sworn in as president in the beautifully renovated Supreme Court courtroom at the Capitol withfamily, friends and colleagues in attendance was thesingle greatest honor of my professional career.OBA tradition is that one of the first official eventsof a new bar president is to be hosted by the GarfieldCounty Bar Associationin Enid. I want tothank them againfor their hospitalityand warm welcome.Because February isa month of “state ofthe ” addresses, hereis some of the information I shared with theGarfield County barabout the current stateof the OBA; and, sincewe are now in a newdecade, I think it isalso interesting to compare the OBA today with whereit was 10 years ago.As of the beginning of 2020, the total membership ofthe OBA is 18,239, as compared to 14,396 total membersat the beginning of 2010 – more thana 20% increase. Oklahoma lawyersare more urban and less rural thanever before. Oklahoma and Tulsacounties continue to have the highest concentration of lawyers – about66% of total members in 2020, upfrom about 51% in 2010. The graphson page 51 show information aboutmembership and the geographical breakdown of members inOklahoma and Tulsa countiesand the remainder of the state.Another important statistic isPresident Shields practices inthe age of our members. In 2020 theOklahoma City.majority of practicing Oklahomasusan.shields@mcafeetaft.comattorneys are over age 50, and we haveincreasing numbers of inactive andover age 70 senior attorneys. The OBAwill continue to provide services to ournewest lawyers who are the lifebloodand future of the OBA, but going forward, the aging of our membership willrequire that the OBAmaintain and evenramp up support andresources for attorneysnearing retirementwho need to plan forthe transition of theirlaw practices.What about theOBA’s financial health?There are not toomany things in 2020that are the same pricethey were in 2010. OBAdues in 2010 were 275and are the same today. The more than1,100 members who have been in practicethree years or less pay one-half of theregular dues, or 137.50 per year. Thisyear’s OBA budget predicts a healthyreserve of funds at the end of 2020.However, it appears the trend will bethat the total number of active membersmay decline, or at least not increase, overIn 2020 the majority of practicingOklahoma attorneys are overage 50, and we have increasingnumbers of inactive and overage 70 senior attorneys.(continued on page 51)FEBRUARY WELLNESS TIPLawyers sit a lot! Research saysthat taking a short walk, standingup when on the telephone or usinga stand-up desk for 10 minutes ormore each hour improves health.405-552-23114 FEBRUARY 2020THE OKLAHOMA BAR JOURNAL

THE OKLAHOMA BAR JOURNAL is apublication of the Oklahoma Bar Association.All rights reserved. Copyright 2020 OklahomaBar Association. Statements or opinionsexpressed herein are those of the authors anddo not necessarily reflect those of the OklahomaBar Association, its officers, Board of Governors,Board of Editors or staff. Although advertisingcopy is reviewed, no endorsement of anyproduct or service offered by any advertisementis intended or implied by publication.Advertisers are solely responsible for thecontent of their ads, and the OBA reservesthe right to edit or reject any advertising copyfor any reason. Legal articles carried in THEOKLAHOMA BAR JOURNAL are selectedby the Board of Editors. Information aboutsubmissions can be found at CENTER STAFFJohn Morris Williams, Executive Director;Gina L. Hendryx, General Counsel; RichardStevens, Ethics Counsel; Jim Calloway, Directorof Management Assistance Program; Craig D.Combs, Director of Administration; SusanDamron, Director of Educational Programs;Beverly Petry Lewis, Administrator MCLECommission; Carol A. Manning, Directorof Communications; Robbin Watson, Directorof Information Technology; Loraine DillinderFarabow, Peter Haddock, Tracy PierceNester, Katherine Ogden, Steve Sullins,Assistant General CounselsLes Arnold, Julie A. Bays, Gary Berger,Debbie Brink, Melody Claridge, CherylCorey, Nickie Day, Ben Douglas, DieadraFlorence, Johnny Marie Floyd, Matt Gayle,Suzi Hendrix, Debra Jenkins, RhondaLangley, Jamie Lane, Durrel Lattimore,Edward Maguire, Renee Montgomery,Whitney Mosby, Tracy Sanders, MackenzieScheer, Mark Schneidewent, Laura Stone,Kurt Stoner, Krystal Willis, Laura Willis,Laura Wolf & Roberta YarbroughOklahoma Bar Association 405-416-7000Toll Free 800-522-8065FAX 405-416-7001Continuing Legal Education 405-416-7029Ethics Counsel 405-416-7055General Counsel 405-416-7007Lawyers Helping Lawyers 800-364-7886Mgmt. Assistance Program 405-416-7008Mandatory CLE 405-416-7009Board of Bar Examiners 405-416-7075Oklahoma Bar Foundation 405-416-7070www.okbar.orgTHE OKLAHOMA BAR JOURNALVolume 91 — No. 2 — February 2020JOURNAL STAFFBOARD OF EDITORSJOHN MORRIS WILLIAMSEditor-in-Chiefjohnw@okbar.orgMELISSA DELACERDA, Stillwater, ChairCAROL A. MANNING, Editorcarolm@okbar.orgAARON BUNDY, TulsaMACKENZIE SCHEERAdvertising Manageradvertising@okbar.orgLAURA STONECommunications Specialistlauras@okbar.orgLAURA WOLFCommunications Specialistlauraew@okbar.orgLUKE ADAMS, ClintonCASSANDRA L. COATS, VinitaPATRICIA A. FLANAGAN, YukonAMANDA GRANT, SpiroVIRGINIA D. HENSON, NormanC. SCOTT JONES, Oklahoma CityTONY MORALES, ShawneeROY TUCKER, MuskogeeOFFICERS &BOARD OF GOVERNORSSUSAN B. SHIELDS, President, OklahomaCity; BRANDI N. NOWAKOWSKI, Vice President, Shawnee;MICHAEL C. MORDY, President-Elect, Ardmore; CHARLES W.CHESNUT, Immediate Past President, Miami; MATTHEW C.BEESE, Muskogee; MICHAEL J. DAVIS, Durant; TIM E. DECLERCK,Enid; JOSHUA A. EDWARDS, Ada; AMBER PECKIO GARRETT,Tulsa; BRIAN T. HERMANSON, Ponca City; ANDREW E. HUTTER,Norman; DAVID T. MCKENZIE, Oklahoma City; BRIAN K. MORTON,Oklahoma City; MILES T. PRINGLE, Oklahoma City; ROBIN L.ROCHELLE, Lawton; D. KENYON WILLIAMS JR., Tulsa; JORDAN L.HAYGOOD, Chairperson, OBA Young Lawyers Division, ShawneeThe Oklahoma Bar Journal (ISSN 0030-1655) is published monthly,except June and July, by the Oklahoma Bar Association, 1901 N. LincolnBoulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paidat Oklahoma City, Okla. and at additional mailing offices.Subscriptions 60 per year that includes the Oklahoma Bar JournalCourt Issue supplement delivered electronically semimonthly. Lawstudents registered with the OBA and senior members may subscribefor 30; all active members included in dues. Single copies: 3Postmaster Send address changes to the Oklahoma Bar Association,P.O. Box 53036, Oklahoma City, OK 73152-3036.FEBRUARY 2020 5

Family LawThe Inconvenient Truths AboutInconvenient Forums in ChildCustody ProceedingsBy Phillip J. Tucker and Becky Bryan AllenALL FAMILY LAW CASES START WITH A JURISDICTION ANALYSIS, and a familylaw jurisdictional probe is often more complex than other types of civil litigation.The initial case review depends upon what is happening (e.g., original dissolution of themarriage action, paternity determination, post decree child custody modification, postdecree child support modification, guardianship, adoption, international child abduction,etc.). If called upon to represent a client in a family law case, one must gather enoughinitial information to determine the nature/type of the pending family law proceeding.Further, in the appropriate case(i.e., one involving a custody determination of a child or children),one must make a determination onwhether or not a court is an inconvenient forum under the provisionsof the Uniform Child CustodyJurisdiction and Enforcement Act(UCCJEA).1 As hard as we maytry, we cannot predict the future.Because life’s only constant ischange, courts, when asked, willconsider establishing child custodyorders based on a best interestdetermination and will modify achild custody order when a continuing change in circumstancesnecessitates new orders. At thecore of every child custody order –whether it be the original orderor a modification – is the court’sjurisdictional power to act.THE OKLAHOMA BAR JOURNALWHAT IS FORUMNON CONVENIENS?A forum non conveniens is acourt’s discretionary power todecline to exercise its jurisdictionwhere another court may moreconveniently hear a case.2If your family law case involvesa minor child(ren), a UCCJEA jurisdictional analysis must be made.As we all learned in law school,subject matter jurisdiction focuseson the power and authority of acourt to act. It either exists by statute or not. It cannot be conferredupon the court by agreement of theparties.3 UCCJEA authority to actis a subject matter jurisdictionalprerequisite for the court makinga child custody determination.4A child custody determinationmeans an order of the court providing for the legal custody, physicalcustody or visitation with respectto a child.5 Under the UCCJEA,the term includes a permanent,temporary, initial and modificationorders.6 A child custody proceeding means a proceeding in whichlegal custody, physical custody orvisitation with respect to a childis an issue.7 The terms includes aproceeding for divorce (dissolutionof marriage), separation, neglect,abuse, dependency, guardianship,paternity, termination of parentalrights, adoption and protectionfrom domestic violence, in whichthe issue may appear.8Take time in your jurisdictionalanalysis to read and understandstatutory terms before applyingthem to your case facts. Such aneffort will go a long way in correctlyunderstanding the jurisdictionalquestion(s), as well as helping youclearly explain your position both toyour client and the court.Further, the UCCJEA is expansive in scope. It applies to allstates and territories,9 tribes10and foreign countries.11FEBRUARY 2020 7

STRUCTURE OF THE ANALYSISStep 1Determine whether a priorchild custody determination existsregarding the child(ren) in question.If so, there is an initial determination12 and child custody jurisdiction(absent an emergency)13 exists solelywith the issuing court in the issuing state.14 If the issuing court actedunder jurisdictional principles consistent with 43 O.S. §551-201, thenthe child custody order is entitledto full faith and credit. The issuingcourt also has exclusive, continuingchild custody jurisdiction untilthat court (the issuing court)makes these findings:1) That, at the time of the filingof the parties’ proceeding,that neither: the child, the child andone parent nor the childand a person acting asa parent have a significant connection withthe issuing state; and substantial evidence isno longer available inthe issuing state concerning the child’s care,protection, training andpersonal relationships15modification action and a motionfor the Oklahoma court and theissuing court to communicate17 tosee if the issuing court will relinquish its jurisdiction. Normally,this will require you work withcounsel in the issuing state tofacilitate the communication or,with the filing of the Oklahomamodification, counsel in theissuing state can file an inconvenient forum motion in the issuingcourt seeking to have that courtrelinquish jurisdiction to theOklahoma court.An Oklahoma court cannotdetermine the issuing court isan inconvenient forum. Only theissuing court can relinquish itsjurisdiction, either on its ownaccord, on a motion broughtbefore that court or at the invitation of another court to relinquish.Step 2If no prior child custody determination exists, then you mustplead why the Oklahoma courthas initial child custody jurisdiction under 43 O.S. §551-201. This isgenerally a home state examination(i.e., where the child resided forthe last six months immediatelypreceding the commencement ofthe action per 43 O.S. §551-201(A)(1)). In determining whether to exerciseinitial child custody jurisdiction,the Oklahoma court may make aninconvenient forum determination.18Again, this can be raised “uponthe motion of a party, the court’sown motion, or request of anothercourt,”19 but it should be noted thatthe UCCJEA expressly rejects theidea of comparing two jurisdictionsin order to decide which state hasthe most significant connections. Astate has jurisdiction if it meets therequirements of 43 O.S. §551-201(A)(2). The comparison between the twostates is part of the 43 O.S. §551-207analysis on forum non conveniens. Ifmore than two states have jurisdiction then the section on simultaneous proceedings applies.20KEY STATUTE43 O.S. §551-207(B) sets out at leasteight relevant factors for the court’sconsideration. The court shall allowthe parties to submit information(evidentiary hearing) and shallconsider all relevant factors.The inconvenient forum analysis comes into play when a statehas assumed initial child custodyor2) A court (of this or anotherstate) determines that thechild, the child’s parentsand any person acting asa parent do not presentlyreside in the issuing state.16If a prior child custody determination exists, then it becomesthe issuing court and only theissuing court in the issuing statewho has the power to declinethe exercise of its exclusive,continuing jurisdiction under43 O.S. §551-207. So what doesone do? Prepare and file your8 FEBRUARY 2020The inconvenient forum analysis comes intoplay when a state has assumed initial childcustody jurisdiction, usually a home state, butthere is another state other than the child’shome state which would be more appropriateto hear the case.THE OKLAHOMA BAR JOURNAL

jurisdiction, usually a home state,but there is another state otherthan the child’s home state whichwould be more appropriate to hearthe case. Once the inconvenientargument is raised, the home statecourt will conduct an evidentiaryhearing as required by 43 O.S.§551-207(B). During this evidentiary hearing, parties will submitinformation and the court willconsider all factors it considersrelevant, eight of which are laidout in subsection (B):1) Whether domestic violencehas occurred and is likely tocontinue in the future andwhich state could best protect the parties and the child;2) The length of time the childhas resided outside the state;3) The distance betweenthe court in the state andthe court in the state thatwould assume jurisdiction;4) The relative financial circumstances of the parties;5) Any agreement of the parties as to which state shouldassume jurisdiction;6) The nature and location ofthe evidence required toresolve the pending litigation, including testimonyof the child;7) The ability of the court ofeach state to decide theissue expeditiously and theprocedures necessary topresent the evidence; and8) The familiarity of the courtof each state with the factsand issues in the pendinglitigation.This list of factors is not exclusive,and courts are free to considerfactors outside of these eight.21Further, courts need not considerevery factor, but must only considerrelevant factors.22 Additionally, thehome state court may communicate with another state pursuantTHE OKLAHOMA BAR JOURNALto 43 O.S. §551-110 before makinga decision on whether to retain ordecline jurisdiction.23With respect to these eightfactors, there are notes in thecomments of the UCCJEA writtenby the National Conference ofCommissioners on Uniform StateLaws which help add meaningto the factors. Under factor 1, thecourt should consider whetherthe parties are in different statesas a result of domestic violence.24Under factor 3, even if there is asignificant distance between theparties, the distance may be alleviated by 43 O.S. §551-111 takingtestimony out of state and/or43 O.S. §551-112 cooperationbetween courts, preservation ofrecords.25 Lastly, with respect tofactor 7, the court can look to theprocedure and evidentiary laws ofthe two states, the flexibility of thecourt docket and whether one ofthe courts would be able to arrive ata solution to all legal issues raised.26The procedure of 43 O.S.§551-207 and its factors are illustrated in the recent Virgin IslandsSupreme Court case of Gayanich v.Gayanich.27 In this case, Mr. andMrs. Gayanich were married inOklahoma and had two childrenhere in 2014 and 2015. In January of2016 the parties moved to St. Croix,Virgin Islands.28 In August of thatyear, Mrs. Gayanich moved backto Oklahoma and Mr. Gayanichsoon thereafter filed a divorce andcustody proceeding in the VirginIslands.29 The children were 2 and3 years old at this time and hadspent all but the last eight monthsin Oklahoma, yet under 43 O.S.§551-201(A)(1) the Virgin Islandswere considered their home state.30In this case, the trial court found ithad home state jurisdiction becausethe children had lived in the VirginIslands with their parents for thesix months immediately preceding the commencement of Mr.Gayanich’s case.31In response to this finding ofjurisdiction, Mrs. Gayanich fileda motion to dismiss for lack ofjurisdiction and more notably forthis discussion a dismissal basedon forum non conveniens. The trialcourt then held an evidentiaryhearing as required and weighedthe 207(B) factors. The court foundevidence on three of the factorsmost relevant and persuasive.These included the length of timethe children had resided outsidethe Virgin Islands, the relativefinancial circumstances of theparties and the nature and location of the evidence required toresolve the pending litigation.32First, the children had lived inthe Virgin Islands for eight monthsat the time the case was filed andthey were 2 and 3 years old at thetime of filing. The court found thatthis factor did not weigh heavilyin favor of either Oklahoma or theVirgin Islands.33 Second, the courtlooked to not only the parties’income from their respective jobs,but also the contributions given tothem by family members to consider their financial circumstances.The court found that the parties’assets, debts and family memberswho contribute to the parties werelocated in Oklahoma.34 Third, theVirgin Island trial court foundthat a majority of the evidencewas located in Oklahoma: 11 ofthe 13 witnesses to be called residein Oklahoma, both parties wereoriginally from Oklahoma, bothparties’ extended families reside inOklahoma and evidence of parenting such as medical records, doctors and childcare were all locatedin Oklahoma.35Based on these facts, the VirginIsland’s trial court held thatalthough it had home state jurisdiction, Oklahoma was a moreconvenient forum to hear the caseunder forum non conveniens. Thecase was ordered transferred andthe Virgin Island’s case stayed.FEBRUARY 2020 9

Mr. Gayanich appealed and theSupreme Court of the VirginIslands affirmed.36ONCE YOU HAVE PROVENANOTHER STATE IS A MORECONVENIENT FORUMPer 43 O.S. §551-207(C), if a courtdetermines it is in an inconvenientforum and that a court of anotherstate is a more appropriate forum,it shall stay the proceedings uponcondition that a

The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly, except June and July, by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, Okla. and at additional mailing offices. Subscriptions 60 per year that includes the Oklahoma Bar Journal

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