MEMORANDUM OF THE LAW OF CHILD CUSTODY JURISDICTION by William M. Hilton, CFLS Attorney At Law Box 269, Santa Clara, CA 95052 TEL: (408) 246-8511 FAX: (408) 246-0114 1.0 THE UNIFORM CHILD CUSTODY JURISDICTION ACT (UCCJA) 1.1 In determining whether a court has Child Custody Subject Matter Jurisdiction we look first to State law, 9 Uniform Laws Annotated Section (ULA) 1 through 28. 1.1.1 It is axiomatic that Personal (In Personam) Jurisdiction over the parties 1 and Child Custody Subject Matter Jurisdiction (CCSMJ) 2, are two separate, unrelated and independent issues. A court may have Personal (In Personam) Jurisdiction over the parties without having CCSMJ. In re Marriage of Ben- Yehoshua (Cal.App. 5 Dist. 1979) 91 Cal.App.3d 259, 263-264 [154 Cal.Rptr. 80, 82-83] sets forth a typical fact pattern on this point. 1.2 Under Article IV, Sec. 1 of the United States Constitution, each state is required to give full faith and credit to the public acts, records and judicial proceedings of every other state. The codification of this constitutional mandate in 28 U.S.C. Sec. 1738, and its precondition that there be finality of judgment, however, left the full faith and credit clause inapplicable to child custody orders. By necessity, such orders are modifiable in the rendering state when the best interest of the child so require; and therefore, such orders lack the necessary finality for protection under the full faith and credit clause. Kovacs v. Brewer, 356 U.S. 604 [78 S.Ct. 963, 2 L.Ed.2d 1008] (1958); New York ex rel Halvey v. Halvey, 330 U.S. 610 [91 L.Ed. 1133, 67 S.Ct. 903] (1947). Additionally, procedural defects may preclude enforcement under the full faith and credit clause of even arguably "final" custody orders. Ford v. Ford, 371 U.S. 187 [83 S.Ct. 273, 9 L.Ed.2d 240] (1962); May v. Anderson, 345 U.S. 528 [97 L.Ed. 1221, 73 S.Ct. 840] (1953). The unfortunate result of this lack of recognition and enforcement of decrees of sister states was the constant uprooting and movement of child from state to state in their parents' efforts to obtain or enforce conflicting custody orders. 1.3 The purpose of the Act was to provide stability to the home environment and to family relationships by discouraging continuing controversy over child custody and visitation; to avoid jurisdiction disputes; to deter abductions; to avoid relitigation; to promote comity; and to assure that litigation concerning child custody takes place ordinarily in the state in which the child and his family have the closest connection. Kumar v Superior Court of Santa Clara Cty. (1982) 32 Cal.3d 689 [186 Cal.Rptr. 772; 652 P.2d 1003]. 1.4 The provisions of 9 ULA 3(a)(1) through 9 ULA 3(a)(4) set forth the exclusive conditions governing the exercise of jurisdiction over an interstate custody dispute under State law. Of the four (4) bases set forth, only 9 ULA (a)(1) (Home State) and 9 ULA (a)(2) (Most Significant Contacts) apply. 1.4.1 Home State 9 ULA (a)(1) The first basis for State child custody jurisdiction under the UCCJA is pursuant to 9 ULA (a)(1) 5152(1)(a), the "Home State". "Home State" is defined as follows: "Home state" means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person action as a parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period. 9 ULA (2)(5) 1.4.1.1 "Home State" is the state of actual physical presence of the child and not the state of legal residence or domicile of the child. May v Anderson (1953) 345 U.S. 528 [73 S.Ct. 840, 97 L.Ed. 1221]; Halvey v Halvey (1947) 330 U.S. 610 [67 S.Ct. 903, 91 L.Ed. 1133]; Jackson v Jackson (Fla.App. 1 Dist. 1980) 390 So.2d 787, 790; Finney v Finney (Tenn.App. 1981) 619 S.W.2d 130, 132; State Ex Rel. Cooper v Hamilton (Tenn. 1985) 688 S.W.2d 821, 824; Parker v Parker (La.App. 1982) 434 So.2d 479, 481; Harper v Landers (Ga.App. 1986) 348 S.E.2d 698, 701; Bergstrom v Bergstrom (N.D. 1978) 271 N.W.2d 540, 546. 1.4.1.2 A State can only exercise "Home State" jurisdiction if, at the commencement of the proceeding, the State is the "Home State" of the child or had been the "Home State" of the child within six months before the commencement of the proceeding. 9 ULA (a)(1). 1.4.1.3 The commencement of a proceeding is the date the matter is filed. In re Janette H. (Cal.App. 2 Dist. 1987) 196 Cal.App.3d 1421, 1429 [242 Cal.Rptr. 567, 571]; In re Guardianship of Donaldson (1986) 178 Cal.App.3d 477, 491 [223 Cal.Rptr. 707, 714] 1.4.2 Most Significant Contacts 9 ULA 2(a)(2). The second basis for child custody jurisdiction under the UCCJA is pursuant to 9 ULA 2(a)(2), "Most Significant Contacts". Under 9 ULA 2(a)(2), before a State court may assert jurisdiction it must find first that: it is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state; and (ii) there is available in this state substantial evidence concerning the present or future care, protection, training, and personal relationships of the child. 1.4.2.1 The Commissioners' notes explaining the applicable section of the model UCCJA in pertinent part provide: Paragraph (2) perhaps more than any other provision of the Act requires that it be interpreted in the spirit of the legislative purposes expressed in section 1. The paragraph was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact description. But its purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: jurisdiction exists only if it is in the child's interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state. Uniform Child Custody Jurisdiction Act Sec. 3. (Emphasis added). 1.4.2.2 Paragraph (2) of the comments refers to what has been adopted as the maximum significant contacts test of 9 ULA 2(a)(2). Courts of this state have followed the rationale of the uniform act's comments in construing the "significant contacts" test as a maximum significant contacts test. Plas v Superior Court (1984) 155 Cal.App. 3d 1008 [202 Cal.Rptr. 490]. 2.0 APPLICATION OF FEDERAL LAW: 28 USC 1738A 2.1 The UCCJA's intent was to create uniformity in the handling of jurisdictional disputes in custody cases. 3 It achieved only limited success, due to the variations in the UCCJA as adopted by each of the states, and the differences in interpretation from court to court within those states. Consequently, there remained wide room for forum shopping, and the flow of child and cases from state to state continued. 4 Federal legislation was finally enacted to bolster the UCCJA, and to enhance uniformity in interpretation and resolution of jurisdictional conflicts involving interstate custody disputes. 2.2 In 1980, the United States Congress enacted the Parental Kidnapping Prevention Act (PKPA). The title of the act is misleading and unfortunate, as it was by no means limited to criminal matters relating to kidnapping. Rather, one of the principle purposes of the PKPA was to protect the right of a decree issuing state to exercise exclusive continuing jurisdiction over its child custody orders in certain cases, and to channel custody litigation into the court having continuing jurisdiction by requiring states to give full faith and credit to the custody decrees of states retaining jurisdiction and preventing the issuance of competing decrees. Mark L. v Jennifer S., 506 N.Y.S.2d 1020, (1986); States ex rel. Valles v. Brown, 639 P.2d 1181 (N.M. 1981); Nielson v. Nielson, 472 So.2d 133 (La.App. 1985). To this end, the PKPA established national standards to determine jurisdiction in interstate custody disputes. Vonniski v. Vonniski, 661 S.W.2d 872 (Tn. App. 1982) 2.3 Congress' intent to limit the states in the assumption of jurisdiction is evident from the relevant text of the statute. 2.4 First, the statute provides for recognition and enforcement of only those decrees made consistent with the provisions of 28 U.S.C. Sec. 1738A. The PKPA has eliminated the opportunity for a state to disregard a foreign decree because of differences in the state's statutory enactment or jurisdictional interpretations of UCCJA provisions. 28 U.S.C. Sec. 1738A(c)(1). 2.5The PKPA also grants a priority to "Home State" jurisdiction in initial custody petitions. "Most Significant Connection" jurisdiction can only be used as a basis to assume jurisdiction if there is no home state, not as an alternative to the home state. 28 U.S.C. Sec. 1738A(c)(2)(A) and (B). 2.5.1 Where there is a "Home State", that state has exclusive jurisdiction and is the only state that can properly exercise CCSMJ and make a custody determination that is consistent with the PKPA. Olmo v Olmo (E.D.N.Y. 1986) 646 F.Supp. 233, 235; Martinez v Reed (E.D.La.1985) 623 F.Supp.1050, 1056; Ex Parte Lee (Ala.App.1983) 445 So.2d 287, 290; Garrett v Garrett (1987) 292 Ark. 584 [732 S.W.2d 127]; Mancusi v Mancusi (Fam.Ct. 1987) 519 N.Y.S.2d 476, 478; Bolger v Bolger (Tex.App.1984) 678 S.W.2d 194, 196 2.6 In spite of the basic similarities between the PKPA and the UCCJA provisions, it is apparent from the differences outlined above that there will be situations in which the application of each will yield a different result. In cases of conflict between the two statutes, it is clear that the PKPA must prevail over any contrary laws of the states in the area of recognition and modification of a sister state's custody decree. See 28 U.S.C. Sec. 1738A; see also In re McBride, 469 So.2d 645 (Ala.Civ.App. 1985); Olivia H. v. John H., 497 N.Y.S.2d 838 [130 Misc.2d 756] (1986); Wheeler v. Buck, supra. Consequently, the court cannot make jurisdictional decisions based solely on the State UCCJA, without regard to the PKPA. 2.7 Under the PKPA there must be an initial determination of jurisdiction under 9 ULA 3. See 28 U.S.C. Sec. 1738A(c)(1). If jurisdiction properly may be assumed under State law, the State court must then look to jurisdiction prerequisites of 28 U.S.C. Sec. 1738A(c)(2)(A) through (E). See Evans v. Evans, 670 F.Supp. 774 (E.D. Tenn. 1987); Serna v. Salazar, 98 N.M. 648 [651 P.2d 1292] (1982). If the court cannot satisfy any one of the PKPA provisions, then the federal statute precludes the state's assumption of jurisdiction, and the petition must be denied for lack of subject matter jurisdiction. 3.0 CONCLUSIONS 3.1 Jurisdiction over issues of child custody and/or visitation is subject matter jurisdiction. The existence or non-existence of Personal (In Personam) Jurisdiction over the parties has no effect. 3.1.1 A court may have Personal (In Personam) Jurisdiction over the parties without having Child Custody Subject Matter Jurisdiction. Conversely, a court may have Child Custody Subject Matter Jurisdiction without having Personal (In Personam) Jurisdiction over one of the parties. The two kinds of jurisdiction are separate, independent and unrelated to one another. 3.2 Child Custody Subject Matter Jurisdiction is determined by an application of 9 ULA 3(a), the UCCJA, and 28 USC 1738A, the PKPA. Unless a State can meet the criteria of both the UCCJA and the PKPA, the State is prohibited from exercising this jurisdiction. 3.3 Where a state has "Home State" jurisdiction the PKPA absolutely prohibits the exercise of Child Custody Subject Matter Jurisdiction by any other state. 28 USC 1738A(g). 3.3.1 "Home State" exclusivity is precisely defined by the inter-relation of 28 USC 1738A(c)(2)(A) and 28 USC 1738A(c)(2)(B). 1 Jurisdiction in personam. Power which a court has over the defendant's person and which is required before a court can enter a personal or in personam judgment. Pennoyer v Neff 95 U.S. 714 [24 L.Ed. 565]. It may be acquired by an act of the defendant within a jurisdiction under a law by which the defendant impliedly consents to the personal jurisdiction of the court, e.g. operation of a motor vehicle on the highways of sate confers jurisdiction of operator and owner on courts of state. Hess v Pawloski 274 U.S. 353 [47 S.Ct. 632, 71 L.Ed. 1091]. Black's Law Dictionary (5th Ed. 1979) 2 Jurisdiction of the subject matter. Power of a particular court to hear the type of case that is then before it. Davis v Davis 9 Ill.App.3d 922 [293 N.E.2d 399, 405]; People ex rel. Scott v Janson 10 Ill.App.3d 787 [295 N.E.2d520, 521]; Alfaro v Meagher 27 Ill.App.3d 292 [326 N.E.2d 545, 548]. Term refers to jurisdiction of court over class of cases to which particular case belongs, Honea v Graham (Tex.Civ. App) 66 S.W.2d 802, 804; McFarlin v McFarlin 384 Ill. 428 [51 N.E.2d 520, 521]; Ferree v Ferree 285 Ky. 825 [149 S.W.2d 719, 721]; jurisdiction over the nature of the cause of action and relief sought, Mid-City Bank & Trust Co. v Myers 343 Pa. 465 [23 A.2d 420, 423]; or the amount for which a court of limited jurisdiction is authorized to enter judgment. A court is without authority to adjudicate a matter over which it has no jurisdiction even though the court possesses jurisdiction over the parties to the litigation; e.g. a court of limited criminal jurisdiction has no power to try a murder indictment and its judgment therein would be void and of no effect because it lacks subject matter jurisdiction. Black's Law Dictionary (5th Ed. 1979) 3 See Commissioners' Prefatory Note to the UCCJA. 4 See Bodenheimer, Progress under the Uniform Child Custody Jurisdiction Action and Remaining Problems: Punitive Decrees, Joint Custody and Excessive Modification, 65 Cal. Law Rev. 978 k(1977); Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, 14 Fam. Law. e. 203 (1981).