## Facts

- Susan L. (mother), a U.S. citizen, and Steven L. (father), a Canadian citizen, were never married and are the parents of Steffany, who was born in British Columbia, Canada (B.C.).
- Susan filed a custody action in the Supreme Court of British Columbia (a trial court), which entered a custody order granting Susan sole custody, granting Steven parenting time, and providing for joint legal custody.
- The B.C. court permitted Susan to relocate with Steffany to Nebraska, and Susan and Steffany established their residence there.
- After Steffany visited Steven in B.C. several years later, Steffany made statements suggesting Steven had sexually abused her.
- B.C. law enforcement investigated the allegation but did not file criminal charges.
- Susan asked the B.C. court to defer custody jurisdiction to Nebraska.
- Susan also filed in a Nebraska trial court to register the B.C. custody order, to assert temporary emergency jurisdiction, and to suspend Steven’s parenting time.
- The B.C. court denied Susan’s request to defer jurisdiction; Susan appealed within Canada and lost.
- Steven then asked the Nebraska court to enforce the existing B.C. custody order, and the Nebraska court granted enforcement.
- After another visit with Steven in B.C., Steffany again reported sexual abuse; B.C. authorities again investigated and did not bring charges.
- Susan returned to the B.C. court seeking either deferral of jurisdiction to Nebraska or suspension/modification of Steven’s parenting time; the B.C. court denied relief.
- Susan filed additional motions in Nebraska, arguing that the Nebraska court should assume jurisdiction under the Hague Convention on the Civil Aspects of International Child Abduction and its federal implementing statute, the International Child Abduction Remedies Act (ICARA), even though B.C. continued to exercise jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
- The Nebraska trial court denied Susan’s request and dismissed for lack of subject matter jurisdiction to modify the Canadian custody determination; Susan appealed to the Nebraska Supreme Court.
- On appeal, Susan conceded that, under the UCCJEA, the B.C. court retained exclusive, continuing jurisdiction; she argued instead that the Hague Convention and ICARA preempted the UCCJEA and allowed Nebraska to take custody jurisdiction.

## Issues

1. Whether Nebraska had subject matter jurisdiction under the UCCJEA to modify a British Columbia custody determination when the British Columbia court retained exclusive, continuing jurisdiction and had not relinquished it.
2. Whether the Hague Convention and ICARA preempt the UCCJEA’s jurisdictional limits so that a Nebraska court may assume jurisdiction to modify custody despite the foreign court’s continuing jurisdiction.
3. Whether applying the UCCJEA to bar Nebraska from modifying the foreign custody order violated the Nebraska Constitution (including separation of powers and due process).

## Decision

- The Nebraska Supreme Court affirmed the district court’s dismissal for lack of subject matter jurisdiction to modify the B.C. custody determination.
- Because the B.C. court retained exclusive, continuing jurisdiction under the UCCJEA and had refused to defer to Nebraska, Nebraska courts lacked authority to modify the custody order.
- The Hague Convention and ICARA did not preempt the UCCJEA or supply an independent basis for Nebraska to decide custody on the merits.
- Applying the UCCJEA in these circumstances did not violate the Nebraska Constitution.

## Legal Principles

- For UCCJEA purposes, a foreign country is generally treated like a U.S. state when its child-custody law is substantially similar to the UCCJEA and does not offend basic human rights.
- The court that made the initial child-custody determination retains exclusive, continuing jurisdiction until statutory conditions for loss or transfer of that jurisdiction are met; without relinquishment by the original court, another state may not modify the order.
- A Nebraska court may not modify a foreign custody determination unless Nebraska has jurisdiction to make an initial custody determination and the original court either determines it no longer has exclusive, continuing jurisdiction (or that Nebraska is a more convenient forum) or determines that the child and parents no longer reside in the original forum.
- The Hague Convention and ICARA address international wrongful removal or retention and provide procedures and remedies related to return; they do not create substantive custody jurisdiction or authorize a state court to bypass UCCJEA allocation of modification jurisdiction.
- ICARA functions as the federal method for implementing the Hague Convention; it does not displace state custody-jurisdiction statutes governing which court may modify an existing custody order.
- Applying the UCCJEA’s jurisdictional rules does not unconstitutionally transfer Nebraska judicial power to a foreign tribunal and does not deny due process when the party has an available forum in the court that retains continuing jurisdiction.
- A court’s ability to act to protect a child through temporary emergency jurisdiction does not convert into authority to enter a final custody modification when another court retains exclusive, continuing jurisdiction.

## Conclusion

Nebraska courts lacked subject matter jurisdiction to modify Steffany’s Canadian custody order because the British Columbia court retained exclusive, continuing jurisdiction under the UCCJEA and refused to transfer the case; the Hague Convention and ICARA did not preempt the UCCJEA or provide an independent grant of custody jurisdiction, and the UCCJEA’s limits did not violate the Nebraska Constitution.


Susan L. v. Steven L., 729 N.W.2d 35 (2007)