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LINDA CASTLEBERRY v. WILLIAM HAYDEN CASTLEBERRY

MARCH 15, 1989

LINDA CASTLEBERRY
v.
WILLIAM HAYDEN CASTLEBERRY



BEFORE HAWKINS, P.J., PRATHER AND ROBERTSON, JJ.

PRATHER, JUSTICE, FOR THE COURT:

The issue of this case addresses an emergency child custody modification of a Mississippi decree under the Uniform Child Custody Jurisdictional Act. The children had changed their home state residence to California with their mother since the original decree, but were visiting their Mississippi father when the petition was filed. This Court holds that the Mississippi Court had subject matter jurisdiction to hear the petition because of an emergency situation and affirm the Chancery Court order of Tishomingo County awarding temporary custody to the father.

It is from the finding of jurisdiction that Mrs. Castleberry appeals, citing as error the following:

 (1) The trial court erred in holding that it had subject matter jurisdiction to determine the issue of custody of the parties' minor children; and

 (2) The trial court erred in refusing to transfer this cause to the appropriate court in the State of California.

 I.

 Linda Castleberry and William Hayden Castleberry are the parents of two children, Robert Lee Castleberry, born December 1, 1975, and Anna Castleberry, born February 11, 1977. The parties lived in Mississippi at the time the Chancery Court of Tishomingo County, Mississippi entered the final divorce decree in October, 1978, which awarded Mrs. Castleberry custody of the two minor children.

 Mrs. Castleberry and the children continued to live in Mississippi until July, 1983, at which time they moved to California. Mrs. Castleberry contends that Mr. Castleberry had limited contact with his children after the move. He contacted the children twice by mail and twice by telephone; he sent presents but did not visit the children.

 The children were enrolled in California schools and doing well. Robert was in a program for gifted children and Anna was eligible to start in the same program in the fall of 1986. The mother does not work outside the home, and supports herself and the children from the father's social security payments, aid to dependent children, food stamps and aid from California.

 In July, 1986, Mr. Castleberry and his sister contacted Mrs. Castleberry to arrange for the children to visit Mississippi. Mrs. Castleberry contends she was told Mr. Castleberry was in bad health and had only a few months to live. Accordingly, she agreed to the visit for a month and the children were to return before August 3, 1986. Mr. Castleberry contends that his sister and her mother-in-law went to Los Angeles to visit the children, and brought the children back to Mississippi to spend the summer with their father.

 Upon learning of the conditions in which the children had been living, on July 25, 1986, Mr. Castleberry filed a petition to modify the divorce decree and for custody to be given to him. In that complaint he alleged "a substantial change in circumstances which adversely affect the welfare of the children." Mrs. Castleberry filed an answer and a petition to transfer the case to California under the Uniform Child Custody Jurisdiction Act, which both California and Mississippi have adopted. A temporary decree giving Mr. Castleberry custody was entered on September 24, 1986.

 On September 30, 1986, a complaint was filed in the California Circuit Court asking that California assume jurisdiction under the Uniform Custody Act. The California Court stayed that proceeding, deferring to the determination of jurisdiction by the Mississippi Court.

 A hearing was held pursuant to Mr. Castleberry's petition on November 21, 1986, in Tishomingo County, Mississippi. At that time a brief, favorable report was submitted by the Department of Children's Services in California on its visit with Mrs. Castleberry. Letters from the children's teachers in California regarding their academic progress were also submitted.

 A social worker from Mississippi testified favorably as to the children's environment with Mr. Castleberry. Dr. Mona Carlyle, a clinical psychologist, testified that she had conducted interviews with Mr. Castleberry and the children.

 The children's teachers testified regarding their adjustment to their new school.

 The Court will not detail the testimony of alleged emotional, physical, and other abuse and of alleged neglect, and the responses to that testimony, as the enumeration of these statements by this Court may be misconstrued on the hearing of the merits of the modification issue which is yet to be resolved. Suffice it to say that the chancellor was

 sufficiently supported by the record in his conclusion that an emergency situation existed and that it was necessary for the court to protect the children.

 At the conclusion of the hearing, the chancellor found that his Court had personal and subject matter jurisdiction and denied Mrs. Castleberry's petition for removal of the cause to California and held that the motion to transfer the case to California would not be in the best interest of the children. The order of November 29, 1986, continued in full force and effect the temporary decree of September 24, 1986, giving Mr. Castleberry temporary custody, pending the modification hearing.

 II.

 Subject Matter Jurisdiction

 Mississippi's Uniform Child Custody Jurisdictional Act (UCCJA) Miss. Code Ann. 93-23-1 et seq. (Supp. 1988) jurisdictional requirements provide that:

 (1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination ...


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