                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Fitzpatrick and Senior Judge Duff
Argued at Alexandria, Virginia


DONALD A. BARNES
                                           MEMORANDUM OPINION * BY
v.          Record No. 2774-95-4        JUDGE JOHANNA L. FITZPATRICK
                                             NOVEMBER 12, 1996
WINIFRED K. BARNES


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Michael P. McWeeny, Judge
            Donald A. Barnes, pro se.

            Kathleen O'Brien (Suzanne Gilbert; Fite &
            O'Brien, Ltd., on brief), for appellee.



     The sole issue raised in this appeal is whether the trial

court abused its discretion when it declined to exercise

jurisdiction and deferred the custody determination of the

parties' minor children to the State of Colorado.      Finding no

error, we affirm the trial court. 1

     Donald A. Barnes (appellant) and Winifred K. Barnes were

married in Colorado in 1983.    Three children were born of the

marriage.   The family lived in Colorado until the Summer of 1991,

when they relocated to Virginia after appellant became employed

in Washington, D.C.

     On October 8, 1991, Mrs. Barnes returned to Colorado with

     *
      Pursuant to Code § 17-116.101 this opinion is not
designated for publication.
     1
      Although appellant raised this issue several different
ways, the jurisdictional determination issue subsumes appellant's
other arguments.
the children.    On the same date, Mrs. Barnes' counsel filed

divorce proceedings in Colorado.       On October 11, 1991, appellant

filed a custody petition in the Fairfax County Family Court

(family court). 2   On October 17, 1991, Mrs. Barnes filed an

additional custody petition in Colorado.      Appellant then filed a

divorce action in Fairfax County Circuit Court on October 25,

1991.

        Pursuant to a December 2, 1991 hearing on Mrs. Barnes' plea

to jurisdiction, the Fairfax County Family Court found that Mrs.

Barnes' October 8, 1991 Colorado divorce petition included a

petition for custody, and stayed the Virginia custody proceedings
                                                3
initiated by appellant on October 11, 1991.
        2
      At the time of some of these procedures, some of the
hearings were held in that part of the juvenile and domestic
relations district court that had been designated as the Family
Court of Fairfax County on an experimental basis. Hereinafter,
we will refer to those proceedings as having been held in the
family court.
        3
      The family court found that Colorado was the home state of
the children, and stated:

             [A]t the time [appellant] filed his custody
             action on October 11, 1991, a proceeding
             involving custody of the minor children was
             then pending in the State of Colorado . . .
             the proceedings which were initiated by
             [appellant] on October 11, 1991, be and the
             same are hereby STAYED pending a
             determination by the Colorado Court that
             either (1) declines jurisdiction or (2)
             exercises jurisdiction and makes an
             adjudication therein. In the event the
             Colorado Court declines jurisdiction
             concerning custody of the minor children,
             then the stayed proceedings may be brought
             forward on the Docket for an appropriate
             hearing and adjudication. In the event the


                                   2
     The Colorado trial court assumed jurisdiction of the custody

issue, concluding that Colorado was the "home state" of the

children under the Uniform Child Custody Jurisdiction Act

(UCCJA); however, the court agreed that it lacked jurisdiction to

adjudicate the divorce petition.       On June 30, 1993, the Fairfax

County Circuit Court affirmed the family court's stay issued

December 1991, finding that the Colorado court properly assumed

jurisdiction of the custody issue, and that Virginia should not

assume jurisdiction under Code §§ 20-126 and 20-130. 4     In an

earlier appeal to this Court, we affirmed the trial court's stay

of the Virginia litigation pending resolution of the custody

issue by the Colorado courts.   See Barnes v. Barnes, Rec. No.

0951-94-4 (April 4, 1995).

     The divorce and equitable distribution issues continued in

Virginia, and the trial court entered a final decree of divorce

on April 22, 1994.   Appellant again sought to have the custody

issue determined in connection with the court's adjudication of

the divorce. By opinion letter dated May 31, 1994, the trial
(..continued)
          State of Colorado accepts jurisdiction and
          makes adjudication thereon, either party may

             bring a certified copy of said Order to
          this Court for filing.
     4
      Code § 20-126 provides the grounds for a Virginia court to
exercise jurisdiction to make a child custody determination.
Code § 20-130 provides the grounds for a Virginia court to
decline jurisdiction "if it finds that it is an inconvenient
forum to make a custody determination under the circumstances of
the case and that a court of another state is a more appropriate
forum."




                                   3
court denied the motion finding that the stay imposed by the

family court remained in effect.

     On May 4, 1995, the Colorado Court of Appeals held that the

trial court in Colorado erred when it exercised jurisdiction over

the custody of the parties' children issue because Colorado was

not the children's "home state" under the UCCJA, and that

appellant's October 11, 1991 Virginia petition was filed, and

must be considered, first in time.     Additionally, the appellate

court stated:
               We recognize that this might be an
          instance in which the trial court could have
          exercised jurisdiction under . . . the UCCJA,
          which allows the court to act if one of the
          contestants has a "significant connection"
          with this state and if there is substantial
          evidence in this state with respect to the
          children's "present or future care,
          protection, training, and personal
          relationships," so as to make it in the "best
          interests" of the children for the court of
          this state to assume jurisdiction. . . .

               [T]he trial court here could not assert
          its jurisdiction, "unless the proceeding [in
          Virginia] is stayed by the court of
          [Virginia] because [Colorado] is a more
          appropriate forum."

                    *   *   *      *    *    *    *

               [T]he cause [is] remanded to the trial
          court with directions to communicate with the
          Virginia court . . . and to ask the Virginia
          court to make a determination . . . whether
          it should defer its jurisdiction to Colorado
          and stay its proceedings with reference
          thereto. If the Virginia court enters such a
          stay, the trial court should proceed to
          determine whether it may assert jurisdiction
          over the custody . . . issue[].

(Emphasis added).



                                   4
     On June 19, 1995, appellant filed another motion in the

trial court, requesting the court to lift the stay and assume

jurisdiction over the custody issue based upon the Colorado

appellate court's reversal of the Colorado trial court's initial

determination to assume custody in Colorado.   The Fairfax County

Circuit Court again denied the motion and stated:
          [E]xcept for five to six weeks in 1991,
          virtually all the children's contacts have
          been in Colorado . . . It has been suggested
          that as Virginia is "first in time," it
          should assume jurisdiction and fix the
          critical point for inquiry in October 1991
           . . . . I cannot accept this argument, as it
          ignores both the four years since the
          separation during which the children have
          attended schools in Colorado and the central
          point of the present circumstances and best
          interests of the children. Accordingly, I
          find there are significant contacts with the
          State of Colorado and that Colorado is the
          more appropriate forum for determination of
          the issues of custody. The Circuit Court of
          Fairfax County, Virginia declines to exercise
          jurisdiction and defers to the District Court
          of Arapahoe County, Colorado.

     Despite its convoluted procedural history, the issue in this

appeal remains whether the trial court abused its discretion in

deferring the custody determination of these children to

Colorado.   Appellant argues that the Fairfax County Circuit Court

should have assumed jurisdiction because he filed "first in time"

pursuant to Code § 20-129(A); the Colorado appellate court

eventually dismissed Mrs. Barnes' custody petition; and the

original conditions for lifting the stay were satisfied.

Additionally appellant contends that Code § 20-126(A)(1) requires



                                 5
that the court consider only those facts existing at the time of

the initial filing of the custody action and the trial court

erred in considering events of the last four years.   We find no

merit in these contentions.

     In construing the purposes of the UCCJA as adopted by

Virginia, we stated as follows:
          [T]he Virginia UCCJA was enacted to avoid
          jurisdictional competition and conflict with
          courts of other states in matters of child
          custody; to promote cooperation with courts
          of other states so that a custody decree is
          rendered in a state which can best decide the
          issue in the interest of the child; to assure
          that litigation over the custody of a child
          ordinarily occurs in the state that is most
          closely connected with the child and his
          family and where significant evidence
          concerning his care, protection, training,
          and personal relationships is most readily
          available; to assure that the courts of this
          state decline the exercise of jurisdiction
          when the child and his family have a closer
          connection with another state.



Mubarak v. Mubarak, 14 Va. App. 616, 618-19, 420 S.E.2d 225, 226

(1992) (quoting Middleton v. Middleton, 227 Va. 82, 92-93, 314

S.E.2d 362, 367 (1984)).   Furthermore, we held that additional

purposes of the UCCJA are as follows:
          [T]o discourage continuing controversies over
          child custody; to deter abductions and other
          unilateral removals of children undertaken to
          obtain custody awards; to facilitate the
          enforcement of foreign custody orders and to
          avoid relitigating foreign custody decisions
          in [Virginia] so far as possible; and to
          promote the exchange of information and other
          forms of mutual assistance between [Virginia
          courts] and those of other states concerned
          with the same child[ren].



                                 6
Middleton, 227 Va. at 93, 314 S.E.2d at 367.

     Code § 20-130 dictates when a Virginia court may determine

whether it is an inconvenient forum.      The court must "consider if

it is in the interest of the child that another state assume

jurisdiction," and in so doing, the court may evaluate "the

following factors, among others:       (1) If another state is or

recently was the child's home state; (2) If another state has a

closer connection with the child and his family or with the child

and one or more of the contestants; [and] (3) If substantial

evidence concerning the child's present or future care,

protection, training, and personal relationships is more readily

available in another state."   Code § 20-130(C).
     "Any meaningful determination whether Virginia is the more

appropriate forum for the father to assert his [custody] rights

requires a consideration of the present circumstances of the

children, their school and activities schedule, and their present

health needs, both physical and emotional.      Evidence of these

considerations exists in the children's community, not in
Virginia."   Murabak, 14 Va. App. at 621, 420 S.E.2d at 228

(emphasis added).

     Sufficient evidence supports the trial court's finding that

Colorado was the more appropriate forum to make the custody

determination.   The evidence established that the children were

only present in Virginia for approximately five weeks before

returning to Colorado, where they resided prior to this time.       It




                                   7
is undisputed that the children lived in Colorado continuously

since 1991, and "substantial evidence concerning [their] present

or future care, protection, training and personal relationships"

is readily available in Colorado.     See Code § 20-130.

Furthermore, the trial court was required to consider all

relevant facts or events prior to the date of its jurisdictional

determination in order to comply with the statutory mandates and

the purpose of the UCCJA.
     Upon review of the record, we find no abuse of discretion in

the trial court's decision to defer exercising jurisdiction under

the UCCJA and deferring the custody determination to the District

Court of Arapahoe County, Colorado.    Accordingly, we affirm the

decision of the trial court.

                                                     Affirmed.




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