Professor Benson
Independent Research
CHILD SNATCHING
Joanne Badeaux
Spring 1982
TABLE OF CONTENTS
Page
Introduction . . . . . . . . . . . . . . . . . . . . .
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
Foreseeable Problems . .
. . . . . . . . .
. . .
. . .
A.
Fugitive Felon Act
B.
Full Faith and Credit . . . . . . . . . . . .
•
•
Parent Locator Service . . . . . . . . . . . . . .
Title 28 U.S.C.
§
1
2
3
6
10
1738A . . . . . . . . . . . . . . 11
UCCJA . . . . . . . . . . . . . . . . . . . . . . . 17
Remedies . . . . . . . . . . . . . . . . . . . . .
21
Joint Custody as a Preventative of Kidnapping . . . 24
Case Law . .
. . . . . . . . . . . . . . . . . . .
27
Effect of PKPA on Texas Law . . . . . . . . . . . . 29
Conclusion . . . . . . . . . . . . . . . . . . . . . .
30
Appendix, The Parental Kidnapping Prevention Act . . .
A~l
Eoo tnotes . . . . . . .
. . . . . . . . . . . . . . .
32
CHILD SNATCHING
INTRODUCTION
This paper 1s basically a critical analysis of the possible
pitfalls of the Parental Kidnapping Prevention Act which will be
referred to throughout the paper as PKPA.
It is suggested that you
familiarize yourself with PKPA by reading the provisions of the act
in Appendix A.
§
The Act is Public Law 96-611 and covers 18 U.S.C.
1738A and 42 U.S.C.
§§
655, 663.
After reading the Act, you may
believe, as did this writer, that the problems to child kidnapping
have finally been solved.
Many provisions of the Act are clear,
concise solutions to child kidnapping.
However, since it is common
knowledge that federal courts and federal administrative agencies
do not like to get involved in domestic relations, we need to be
aware of possible resistance to and negative reactions from key
people whose cooperation is vital in making this act work.
There has been an epidemic in parental kidnapping in the United
States, with estimates as high as 100,000 cases per year. 1
Due to
the national recognition of the problem, the United States Congress
passed the Parental Kidnapping Prevention Act which was signed
into law on December 28, 1980 and became effective on July 1, 1981. 2
As evidenced by its name, one of the purposes of the law is to
"deter interstate abductions and other unilateral removals of children
undertaken to obtain custody and visitation awards."
3
Equally
important are the stated purposes of ''discouraging continuing
interstate controversies over child custody in the interest of greater
stability of home environment and of secure family relationships for
the child,"
4
and "to avoid jurisdictional competition and conflict
between State courts in matters of child custody and visitation
which have in the past resulted 1n the shifting of children from
State to State with harmful effects on their well being." 5
It is
important that these purposes be stated and that the problem of
uprooting children while forum shopping,, and the more serious
problem of child kidnapping, not be slighted.
An excellent overview
of the scope of the problem is illustrated by the following summary
put together by Children's Rights, Inc.
I.
(Please see following page).
FORESEEABLE PROBLEMS
Even with the somber title and noble purp<e>ses, the Act may not
have the impact that it should because the federal government may
not enforce the Act or may not follow through with the Act's guidelines
for determining child custody issues.
There are three major subdivisions
of PKPA and two of them may be "toothless tigers."
6
The Fugitive
Felon Act and Full Faith and Credit provisions of the bill, may not
be as effective as Congress meant them to be.
The legislative history does not show strong support for the
Act.
The Act never was a bill in its own right and it barely passed
as an amendment.
The Act was first introduced as S-105 by Senator
Malcolm Wallop (R-Wyo.) on January 23, 1979.
7
By the end of the
96th Congress, a bipartisan group of twenty-five senators had
cosponsored the bill and over sixty House members had cosponsored a
companion measure, H.R. 1290, introduced by Rep. Charles Bennet
(D-Fla.).
On September 4, 1980, the Act, in the form of S. 105
2
OtJOO~
Testimony of
HILDREN 'S RIGHTS,
INC.
Regarding
The Parental Kidnapping P re\ cnU.on
H.R.l290
Before the
Act of 1979
OF
RI.:f J;l,;;ENTli'J'IVES
COMM ITI'EE ON THE ,fUD ICil>.RY
SUBCOMMITTEE ON CH IME
U. S. HOUSE
24 June 1 980
SUM!I1ARY ST1'. 'l'BMCNT
Children's Rights, Inc., is a na tio nal non-profit organization
seeking a solution to the problems of chi ld-snatching and child restraint. These are issues which are «moti onal ly abusive to children,
and create a t raumatic world for them which should be nvoidec1.
Although the reasons for child al>ductions vary from case to case,
the similarities are very signi fic ant~
•
children are taken out of sl:at.e,
•
no custody dete rmination has hec_D made pr ior to
abduction in most cases,
•
average ages of abducted childre n are 2-7
•
children are concealed by the abducting parent.
year~
old ,
Results of child-snatching
•
children lose their sense of community,
•
children u sually require psycl i c<tr ic and/or pnydological
counselling,
•
children are often behind in schoolwork,
•
children have been told tnat the ir other parent has died
or no longer loves them,
•
locating the child becomes the r.esponsibiljty of the
victim parent .
Physical dangers of child-snatching
scene~.
•
children taken at gunpoint or in violent
•
children thrown into trunks of cars,
•
children grabbed off the street into speeding cars,
•
significant nwnbers of abuses, neglects and dec1ths.
Inability of States to cope w1th child- £natching
•
excerpts from var1ous Stato:s • Atto.r:ney
General~>,
•
difficulties in getting state felony
arrant.s,
•
warr~1ts
•
extradition rare.
usel~ss
ouls1de issuing state.
I
Child-l:ltHltChl.ng '
•
warrants usele ss
•
cx~raditi on
rare.
Discussion of H.R.l290L--~e~~~~~-
•
3'll children
se of state and xederal
•
•
fu ll fuith and
'l'e'~ttimony
r
HlLDrX
01
• s P.iG.iTS
I
n::.
Rega ding
napping P:r~l·r.l. ion
H. R.l290
Before the
·rb·- l<•r"nt.al
U. S. EOUS '
COMMITTE
::;UBCO!>
24
l•c t of l :J'/9
\
OF
RLf 1 l r,.r.NTl' 'NVES
ON THI.· ruuJCIARY
SUMMARY
childl en's Rights,
nat. •.on al non-.Jf."Ofit: orgt~nizati0n
· 9 a &olut l .on 1to the problem of •:hild -·s na · h inq a11d r: ild rc u t r · .i11':.
'rh••se ar~ issues which a e 1 % otionall
abusive to children,
und c ·en te a traurn tic world for ili n. which :Jh uld be avojcJcd •
r.c~k.
.\l thoiJgl• the :(easons
a~e
::.he sun l a.til iea
from case to case,
very
children are
•
no custody determination
al>•j,.l:ti m in most case!!,
•
avzr·ge
•
children ake concealed
R.:!sults o f
I
ag~s
of abducted
ol cl,
I
~lila- snatching
ose their
•
~hLllren
•
chi\Jre n ~sually
co nsel ling,
•
children are often
.,
c 'd J.dren have been
o:- o lon1er loves
•
l .~ca ting t,he child
vic im parent.
•
prior lo
th ~l. r
~n
en
1.nt o
·1
vlolent
•.. 1
ll
,,
.
.cene~
tnk-; of ··0rs,
(
0
~rent
has died
of the
h tlcn~ n
chll
other
l:.
. ..
(
l''
.II
.
'
•
was offered as an amendment to domestic violence legislation which
the House approved, but the lameduck Senate refused because of a
threatened filibuster due to the title of the bill, Domestic Violence
Prevention and Service Act.
A few months later 1n December of 1980,
Senator Wallop successfully offered the bill as an amendment to
S.3259, a bankruptcy technical correction bill.
killed, and therefore the amendment.
Again the bill was
Finally, on the last Saturday
of the session, December 13, 1980, Senator Wallop offered his bill
as an amendment to a bill providing Medicare reimbursement for
pneumoccal vacc1nes.
The bill cleared for presidential approval and
became law on December 28, 1980. 8
A.
Fugitive Felon Act
In order for any act to be effective, it will have to be
enforced.
Congress chose to revitalize the Fugitive Felon Act which
permits the federal government to assist in the location and apprehension of fugitives from state justice.
9
The United States attorney
is to issue a warrant when a state felony law has allegedly been
violated and where the state or local prosecutor seriously intends
to pursue the case.
10
A United States attorney in the Lubbock office
stated that the key to their involvement would be an affirmative
statement by the state or local district attorney that they would
extradite the fugitive once apprehended.
11
But, the
United States Department of Justice, is as a matter of
policy refusing to implement this section of PKPA. Over
the past several years, it has been the Department's
3
000~5
experience that state prosecutors often will charge an
abducting parent with a felony with no real intention of
ultimately prosecuting the abducting parent. Consequently,
the Justice Department believes that some requests for
assistance under 18 U.S.C. § 1073 actually are efforts to
use the investigative resources of the FBI to compel
civil obligations, rathef than serving a legitimate criminal
2
law enforcement purpose.
The Department of Justice may be no more active after the Act
than they were before when they only acted in extreme cases.
"As
a matter of policy, the Department of Justice intends to limit FBI
involvement to those situations where there is independently
credible information that the child is in physical danger or 1s being
seriously neglected or abused."
13
As a general attitude, the
"Department of Justice believes that it is inappropriate to routinely
bring the federal criminal justice system to bear on otherwise
law abiding parents who may be charged by state authorities with
violating the terms of child custody decrees.''
14
In other words,
the Justice Department will not get involved when they believe that
their services are being requested in order to get "one parent off
the back of the other parent."
15
At a hearing before the Subcommittee on Crime, the Executive
Assistant Director to the FBI put forth the FBI's views on PKPA.
"This legislation would involve the Federal government's law enforcement
apparatus in domestic relationships before it is determined the
problem cannot be remedied by the civil measures proposed in this
Bill."
"Although no resistance may occur, the sight of a parent
being handcuffed, searched, and led away for incarceration by FBI
agents, could create severe and lasting emotional trauma on the child."
4
Ofj{)06
16
This writer believes that if there were a deterrent to kidnapping
your own child, "severe and lasting emotional trauma" could be
avoided altogether.
A representative of the Bethesda Psychiatric
Associates testified at the hearing,
The kidnapping of a child from the custody of one parent
by the other parent is an extremely destructive act which
causes significant emotional trauma, to both the child and
the parent who loses physical custody of that child.
Currently, there is no effective way for the parent who
loses custody of a child to regain that child if the
kidnapping parent leaves the state. Every year, thousands
of parents suffer the loss .of their children frequently
never to see them again. Even though the child is taken
by the other parent, the effects on that child are none~heless,
quite destructive to his/her healthy emotional growth."l7
One practicing attorney feels that the criminal sanction of
PKPA "is more noteable for what it does not contain as opposed to
what it does contain.
The Act does extend the Fugitive Felon Act
to state felony prosecutions for parental kidnapping, but does not
make it a federal crime."
the Lindbergh Act.
18
Parents are exempted as kidnapers under
"The prerequisite is that state statutes must
make the parental kidnapping a state felony .. "
19
Criminal sanctions of some sort are needed in order to be a
deterrent as evidenced by one father's comments.
(This father has
legal custody of his children by a Virginia decree entered in 1978
which has been totally ineffective because the wife immediately
kidnapped the children and has yet to be found).
"I personally am
very tempted to snatch my children - especially since it costs
$2,000 to have my children snatched and there is no law against it
once
I cross the state line."
(This father had already spent
$30,000 trying to get his children by legal means).
5
0G007
"Please help
me not to snatch my children and cause them still more harm.
You
can help me by making child snatching an illegal act." 20
On January 28, 1981, Congressman Sawyer introduced a bill,
H.R. 1440, to make child snatching a federal crime. 21
The bill was
referred to the House Judiciary Committee and the follow up information
on this bill is not yet publicly available.
B.
Full Faith and Credit
The Full Faith and Credit provision of PKPA, 28 U.S.C.
lS the second provision that may be a "toothless tiger."
~§1738A,
The full
faith and credit provision is designed to cut down or eliminate forum
shopping by encouraging courts having significant contacts with a
child to examine whether there is a "home state" court which would
have an even greater interest in the child before exercising jurisdiction.22
This provision is the civil answer to reduce child kid-
napping since the incentive to take the child and find a more favorable
forum is gone.
It is immediately apparent that cooperation between
the state courts in deciding that there is only one "home state"
lS the key to the success of this provision.
But, the lssue becomes what if the states continue to battle
between themselves?
Would the federal courts be a proper forum to
bring the suit in initially and would they be more likely to fine
one "home state?"
Because state courts have in the past had centro-
versies over jurisdiction of child custody, some people assume that
states will try to continue their actions in the future and that
federal courts may be better forums because they are generally more
6
04\()A8
lJ' ... ~)j
fair and more likely to implement the federal legislation in the
. .
sp1r1t
c ongress
. 23
meant 1t.
Even though domestic relations have
traditionally been handled through the state courts, there should
be no reason why a federal court could not have jurisdiction over
the full faith & credit provisions of PKPA.
PKPA is federal law,
and federal law includes not only the U.S. Constitution, but all
statutes and the decisions of federal courts which may ultimately
.
d to 1nterpret
.
t h em. 24
b e requ1re
Since the full faith and credit
provision of PKPA is federal law, there should be no choice of law
problem because the Supremacy Clause of the Constitution provides
that federal law will be applied to the issue.
25
Title 28
u.s.c.
§ 1738 states that judicial proceedings "shall have the same full
faith and credit 1n every court within the United States, meaning
that recognition of judgments is required between state and federal
courts and between federal courts.
If federal courts accept juris-
diction in PKPA matters, state procedural rules will apply, but they
are limited by the fact that novel state rules of pleadings and practice
cannot be invoked to defeat a claimant's rights under federal law. 26
If an appeal 1s taken1 the United States Supreme Court may be no
more hesitant to
accep~
the appeal than a state supreme court.
Since
PKPA, domestic legislation,is a new area of federal law, its impact
and interpretation may
be uncertain without the guidance of the
United States Supreme Court.
already heard In re Lassiter,
The United States Supreme Court has
27
which involved the right of a parent
to have court appointed counsel when the state is advocating the
7
termination of parental rights.
The United States Supreme Court has
indicated that it may accept jurisdiction in In re Five Minor
Children
28
which concerns the constitutionally required standard 1n
cases involving termination of the parent-child relationship.
Patricia Hoff, former legislative assistant to Senator Wallop,
does not see federal court involvement.
"The state courts, not the
federal courts, are under a duty to enforce and refrain from modification of out-of-state decrees.
Although federal court jurisdiction
is not expressly foreclosed by the new law, the history of the
legislation shows that Congress intended for child custody litigation
.
.
to cont1nue
1n
state courts. 1129
Regardless of the legislative history of PKPA, there 1s presently
a movement to grant jurisdiction to the federal courts in these cases.
On January 5, 1981, Congressman Fish (R-N.Y.) introduced a billH.R. 223, to grant jurisdiction to the district courts to enforce any
custody order of a state court against a parent who, in contravention
of the order, takes a child to another state.
30
This would cover
situations when the original decree was entered in a state court
and the federal courts are used to enforce the decree rather than
a sister state who may decide that they are the "home state" and
therefore do not have to give full faith and credit to the original
decree.
The bill was referred to the House Judiciary Committee. 31
Congressman Fish sees this bill as an "alternative to the imposition
of criminal penalties,"
present in PKPA.
32
which, as has already been mentioned, are not
By giving jurisdiction to federal courts, "it
8
OUO!_O
would obviate the necessity of a parent, who has been granted custody,
of going into the courts of another State in an effort to retrieve
the child.
The custodial parent will be able to utilize the nearest
United States District Court.
This method should be quicker and
cheaper for the custodial parent."
33
"It is not uncommon for parents
to spend $15,000 or $20,000 in trying to locate their missing children."
"Nationwide jurisdiction is automatically achieved over the offending
parent and process may be served 1.n any state."
35
This writer
believes that the federal courts used in this manner would be the most
efficient means possible for solving child custody disputes.
This particular bill is contested by those who doubt the
constitutionality of the bill.
"The bill does not appear to invoke
the jurisdiction of the federal court over a federal question.
This bill does not, as does the civil child-snatching provision of the
criminal code bill, purport to exert Congressional power under a
distinct constitutional provision such as the full faith and credit
clause in such a way as to create a federal question."
36
Congressman
Fish simply stated that, "There would be no further problem caused
by the lack of applicability of the full faith and credit clause.
The remedies under the bill would be civil.
The equitable powers
available to the Federal courts (i.e., habeas corpus, injuctions,
contempt) can be tapped should the offending parent continue to
disregard the terms of the initial custody decree being enforced
by the Federal courts."
37
A representative of Fathers United for
Equal Rights stated that "since our courts have failed so miserably,
we desparately need the license to appeal to a higher, hopefully
9
OGO~A'.._ ...
34
fairer forum when the state courts feel compelled to bicker between
themselves and sacrifice the very lives of our children."
II.
38
PARENT LOCATOR SERVICE
The third major provision of PKPA is the Federal Parent Locator
Service (FPLS).
Title 28 U.S.C.
§
1738A is of no help unless and
until the absconding parent and child are located and given sufficient
notice.
In order to help the lawful custodial parent find the
child(ren), 42 U.S.C.
§
663 39 .provides for a parent locator service
which authorizes states to receive requests to locate abducted
children and to forward such request to FPLS for processing.
The
law is not mandatory, meaning that the states may enter into an
agreement with the FPLS.
The sources of the FPLS are wide and varied.
The sources
include the records of the Social Security Administration, the
Veteran's Administration, the Internal Revenue Service, the Department
of Defense, the Coast Guard, and the National Personnel Records
Center o f
.
.
t.1on. 40
t h e Genera 1 S erv1ces
Adm.1n1stra
A drawback to the service is that neither parents nor their
legal representatives can apply directly to the FPLS,
41
but they
can simply petition the court to request the FPLS to locate the
absconding parent and missing child.
A second drawback "is that
the average turnaround time for the requests alone is presently
six months to one year.
The information once received by the
service, is similarly six months to one year stale."
42
An insight into why such a service is needed is illustrated
by the testimony of Sandra Coleman, a parent of a kidnapped child.
10
OOOAI~
"I am a custodial parent of a child who was kidnapped on October
4, 1977.
closer."
We have spent in excess of $30,000, and today we are no
43
Mrs. Coleman's money was spent on private investigators,
government departments in variousStates, investigation of school
boards, and for travel expenses.
44
PKPA provides for reimbursement
of these expenses to the custodial parent from the absconding parent
if the custody determination was made in accordance with 28
45
§ 17 38A.
u.s.c.
Mrs. Coleman stated, "We have been through State, local, and
Federal agencies to get some help.
shut on us.
any sort.
We have so far had every door
They say again and again, there is no law on this of
We were able to get a felony warrant issued against my
ex-husband, but as yet we have seen the felony warrant not worth
.
d 1t.
.
" 46
No b o d y h as recogn1ze
.
.
.
t h e paper 1t
1s
wr1tten
on.
Mrs.
Coleman's typical situation illustrates the need for the Fugitive
Felon Act to extend to state felony prosecutions as it now does under
PKPA.
III.
TITLE 28 U.S.C.
§
1738A
To the legal system, the most important provision of PKPA 1s
28 U.S.C.
§
1738A which requires states to give full faith and credit
to sister states' custody determinations.
The term "custody deter-
mination includes not only permanent custody orders, but also
temporary orders, initial orders, and modifications."
47
This
provision of the act includes•home state~ continuing jurisdiction,
and an extension of UCCJA.
If the provision is followed, child
custody determinations will be given full faith and credit without
being final.
Traditionally, sister state courts have modified a
prior custody decree on the basis that the decree was not final or
was not in the best interest of the child.
The provision of
§
48
1738A for state recognition and enforcement
of prior custody determinations is qualified by two important
requirements:
(1)
the custody determination must have been rendered
by a court having jurisdiction as defined by the Act, and (2) the
state rendering the determination must have continuing jurisdiction
.
49
. d to exerclse
.
.
. d.lCtlon.
an d not h ave d ec 1 lne
JUrls
As to the first requirement, a state has jurisdiction as
defined by this Act if
(c) (1)
the judgment state has jurisdiction under
its own laws and (c) (2) (A) the judgment state was the home
state or (B) no other state was the home state and the
child had significant connection with the judgment state
as defined by UCCJA or (C) the child was present and there
was an emergency as defined by UCCJA or (D) no other state
had jurisdiction by this Act or declined it or (E) the
judgment state had continuing jurisdiction as defined in
subsection (d) hereafter.SO
"Home state" is defined as the State in which immediately
proceeding the time involved, the child lived with his parents,
parent, or a person acting as a parent, for at least six consecutive
months. 5 1
As to the second requirement of continuing jurisdiction,
§ 1738A(d) states that jurisdiction continues as long as the requirements
of (c) (1) of this section continue to be met and such State remains
the residence of the child or of any contestant.
These requirements
embody the important equitable unclean hands doctrine by trying to
prevent states from becoming a haven for child snatching parents who
12
-want a modification of a sister state decree.
This writer sees this legislation as an important, effective
measure for preventing emotionally traumatic kidnapping of children,
and agrees with all of the provisions of PKPA.
Other writers
disagree with some of the concepts and provisions of 28 U.S.C.
§
1738A.
One author questions whether decisions rendered by state
courts should be given extraterritorial effect.
His argument is
that the best interest of the child cannot properly be considered.
"This is particularly true of one-sided proceedings where a foreign
judgment is given full faith and credit in Texas without an analysis
of the factual context in which modification of the original decree
occurred.
The enforcement of these decrees invariably furthers
the possible injustice to the child."
52
Congressman Bennett, one of
the drafters of PKPA who supports the continuing jurisdiction
provision of PKPA states that, "It is ridiculous and improper for
a parent to have to wage a separate custody battle in State after
State because the other parent steals the children and moves to
another State.
It is a tragic thing when the victimized parent
cannot locate the abducted children, any may never see them again."
However, a leading Texas case Crockett v. Crockett
54
53
which held
that Section 11.05 of the Texas Family Code has no extraterritorial
effect is a good illustration of the best interest of the child being
determined by a court other than the one that made the initial custody
decree.
Texas did not defer the issue back to Ohio.
In this case,
Donald and Beverly Crockett were divorced in Ohio, and the Ohio court
rendered a final judgment setting out the respective parties' custody,
13
4 tl)A.....,
01_,...
.....
'ld support, an d v1s1
. . t at1on
.
. h ts. 55
r1g
ch~
Donald, who later wanted
to modify the support payments and visitation rights, filed suit 1n
Ohio.
Beverly was served in Texas and made a special appearance 1n
Ohio which was overruled.
Even though her special appearance was
overruled, Beverly filed suit in Texas alleging that Texas had
jurisdiction because of its long arm statute and sufficient contacts
to meet due process.
56
The facts showed that the parties were
married and lived in Texas, conceived both children in Texas, and
that the children and mother maintained residence in Texas.
57
The
Dallas Court of Civil Appeals sustained both of Beverly's arguments
and said that the Texas Family Code has no extraterritorial application
and could not preclude subsequent proceedings in Texas brought by
appellant.
58
In this case Texas did have the most contacts and should
not have to give full faith and credit to Ohio.
sistent with this notion.
PKPA is not incon-
Rather, Ohio should defer the child
custody determinations to Texas because Texas is the "home state."
28 U.S.C.
§
1738A(c} (2} (B)
is to encourage a court having a significant
contact with a child, Ohio, to examine whether there is another
state, Texas, which has an even greater interest in the child before
exercising jurisdiction.
Another question raised by
§
1738A is forum non conveniens.
"PKPA is not based on forum non conveniens as 1s UCCJA.
omission is an important distinction between the two."
This
59
Although
forum non conveniens is not a part of PKPA, it is a constitutional
due process issue and probably can be raised anytime.
This writer
believes that nothing required in PKPA could be as inconvenient as
14
OtiOA ·~
-battling in two different courts at the same time over the same
issue.
Another argument against continuing jurisdiction is that a
state can enter a default judgment.
"When a change of visitation
or custody is entered upon default, the court has had no opportunity
to observe the two parents on the witness stand, nor to examine the
evidence concerning their fitness or the welfare of the child."
60
The key to the above quote is the word "change" meaning modify.
1738A(f} (2} states that a state may not modify a custody determination
if another state has continuing jurisdiction.
If the parties
understand which court has jurisdiction over the issue, less default
judgments should be entered for two reasons:
(1} only one state can
render a judgment at all since sister states will not have JUrlsdiction, and (2} parties may be more likely to appear 1n the State
of continuing jurisdiction since the incentive to try to litigate
1n another state has disappeared.
This writer thinks that the effort
to try the issue in another state was the main cause of default
judgments.
Even when a default judgment is rendered 1n the "home
state," the parent has a remedy which is to file his/her own modification order in the home state, in which case both parties would have
been before the court, and the court would have an opportunity to
observe both parents.
The last argument against continuing jurisdiction is that the
original state's jurisdiction should not continue years after the
initial suit, especially if none of the contestants reside in the
state.
61
1738A(f} (2} allows a court to simply decline jurisdiction
and 1738A(c) allows another State to claim jurisdiction.
To continue with the provisions of 28 U.S.C.§ 1738A, subsection
(e) requ1res "reasonable notice and opportunity to be heard to be
given to the contestants."
"Thus, in appropriate cases, in personam
jurisdiction over an absent party may not be required under the rule
of the Supreme Court case of May v. Anderson,
62
and substituted
service of process may be sufficient if provided for by state law
• t en t
an d 1• f cons1s
Wl• th
d ue process not1ce
•
•
II 6 3
requ1rements.
Note,
that this view of jurisdiction is consistent with UCCJA and inconsistent with Texas.
"The commissioner's note to UCCJA, section 12,
states, "There is no requirement for technical personal jurisdiction,
on the traditional theory that custody determinations, as distinguished
.
f rom support act1ons,
.
are procee d'1ngs 1n
rem. ..64
Texas, on the other
hand, by statute "takes the position that it is unfair to attempt
to bind an absent party to a custody determination unless personal
jurisdiction, in the old fashioned International Shoe sense, is
warranted."
§
65
1738A(g), the Congressional findings and purpose are stated
and are listed as public law 96-611 §Sa, 94 Stat., 3569.
_One important provision
is (2) which says that if a wrongful taking 1s found by a state court,
it may award to the person entitled to custody a visitation, necessary
travel expenses, attorney's fees, costs of private investigators,
witness fees or expenses, and other expenses incurred in connection
with the custody determination.
If enforced, this could be a
strong deterrent against kidnapping since the costs can run into the
tens of thousands in attempts to recover the child.
16
Of course, this
1s assuming that the abductor can be found - a likely assumption
with the aid of the FPLS and the FBI.
IV.
UCCJA
PKPA is seen as a supplement to UCCJA.
§
"The immediate goal of
1738A is to require non-UCCJA jurisdictions to enforce and not to
modify custody and visitation decrees made by UCCJA states." 66
PKPA is not meant to be the sole law on child custody and will only
supersede UCCJA where inconsistent.
Rather than discussing UCCJA
in general, this writer will focus on the faults of UCCJA and
inconcsistencies between it and Title 28
u.s.c.
§
1738A.
the'~cknowledged
A critical analysis of UCCJA was published by
father of the legislation, Leonard G. Ratner." 67
His main criticism
of the use of UCCJA was that the courts found a loophole in the act
1n order to avoid the general purpose of the legislation.
"The home
state concept, and the effective-litigation values that support it,
are undermined by paragraph two of section 3(a) of UCCJA which
authorizes jurisdiction 'in the best interest of the child' when the
child and at least one contestant have a 'significant connection' with
the forum and 'substantial evidence is located there.'"
68
In other
words, a race to the courthouse existed because a home state could
be preempted by a prior action in a forum with "significant connection."
Title 28 U.S.C.
§
1738A(2) (B) (i) changes 3(a) of UCCJA
by stating that significant connection is not a basis for jurisdiction if another state meets the home state test.
69
In other words,
minimum contacts are no longer the standard, but rather maximum
17
contacts is the standard, which should result in one state being the
home state.
PKPA may have closed the main loophole used by courts
to modify custody decrees.
"There are provisions 1n UCCJA which are to inhibit the removal
encouraging impact of 3(a) (2), but they have not been given credence
by the court."
70
Even though PKPA has modified UCCJA, it is bene-
ficial to see how courts have historically interrupted UCCJA in order
to anticipate how they may interpret PKPA.
The question is whether
the courts will find a loophole in PKPA in order to continue to
modify decrees as they have in the past.
One section of UCCJA which is to inhibit kidnapping is 3(b)
which says that the physical presence of one parent and of the child
is insufficient for jurisdiction, but the courts have used mere
presence as a
v. Moore, 72
n
•
"f"1cant connect1on.
•
71
s1gn1
11
For example, in Moore
the Oregon court modified a Washington home-state
decree even though it knew that the mother kidnapped the child.
court rationalized its actions on 3(a} (2} of UCCJA.
The
PKPA restates
that significant connection must be more than "mere physical presence
1n
such state. " 7 3
Section 8(b) of UCCJA is a section for discouraging kidnapping.
It provides,
Unless required in the interest of the child, the court
shall not exercise its jurisdiction to modify a custody
decree of another state if the petitioner, without the
consent of the person entitled to custody, has improperly
removed the child from the physical custody of the person
entitled to custody or has improperly retained the child
after a visit or other temporary relinquishment of physical
custody.
18
000~"
unfortunately, the words "best interest of the child" from UCCJA
(3} (a) were used by the courts to avoid the provisions of not exercising jurisdiction.
The courts exercised jurisdiction even in the
face of a Commissioner's note which stated that refusal of jurisdiction was mandatory unless the harm done to the child by a denial
of jurisdiction outweighed the parental misconduct.
1n Settle v. Settle,
75
74
For example,
the Oregon Supreme Court allowed a modification
of a sister state decree even though the mother had concealed the child
in Oregon for eighteen months.
Section 8 of UCCJA did not discourage
a Colorado court from exercising 3(a) (2) modification jurisdiction
"in the best interest of the child'' even though the Colorado mother
withheld the child in violation of an Oklahoma home-state decree which
.
gave custo d y to a nonparent res1'd'1ng 1n
Montana. 76
PKPA does not
allow sister states to modify decrees since the original state has
continuing jurisdiction.
Section 14(a) of UCCJA confines modification jurisdiction to the
initial decree state if that state has "jurisdiction under jurisdictional prerequisites substantially in accordance with this Act."
The problem is that 3(a) (2) is a part of "this act" and
continued to be used to modify home-state decrees.
In Smith v.
~uperior Court, 77 California modified an Oregon decree because the
presence of the petitioning father, the grandparents, and other relatives
"gave California equal or stronger ties as compared to Oregon, the
home state." 78
PKPA can be abused by the courts the same way.
Section 1738A(a)
states that full faith and credit must be given if the child custody
determination "is consistent with the provision of this Act."
(Emphasis
added.)
Even though the "provisions of this Act" are listed in
1738A(c), the courts may modify decrees on the grounds that the
previous decree was rendered inconsistent "with the provisions of
this Act."
These kinds of arguments would take child custody right
back into the law of conflicts which the passage of this federal law
was trying to avoid.
Section 7 of UCCJA was also intended to limit 3(a) (2) and states
that a court has jurisdiction "to make an initial decree or modification
decree or may decline to exercise its jurisdiction . . . if it feels
that it is an inconvenient forum."
Section 3(a) (3) and 7 of UCCJA allow a parochial enforcement
forum to {a) exercise, rather than decline modification
jurisdiction on behalf of a local abductor alleging mistreatment, despite inconvenience to the enforcing party and
lack of optimum access to evidence or (b) give temporary
custody to the abductor, stay further modification, and
reserve supervisory authority over subsequent modification
proceedings in another forum despite the constitutional
79
mandate of full faith and credit to judicial proceedings.
Section 7 of UCCJA is similar to
§
1738A(c) (2) (B) (i) which says that
a state can make a custody determination if it appears that no other
State would have jurisdiction.
"PKPA takes a stand on continuing
jurisdiction by declaring in effect that a new home state shall not
assume jurisdiction if the prior judgment state continues to be the
residence state for the child or a contestant.
with subsections (b) and (f) (2)
1738A(d) must be read
to arrive at the interpretation. "
80
A common problem to both UCCJA and PKPA is the emergency provisions.
Section 3(a) (3) of UCCJA and its parallel 8(c) (2) (2)
in PKPA gives
courts jurisdiction if a "child is physically present in such state
and (i)
the child has been abandoned or (ii)
20
000<);'
it is necessary in an
emergency to protect the child."
"These requirements allow transfer
of custody to an abductor who can persuade a seize and run forum that
threatened mistreatment by the nonresident custodial parent requires
.
1181
emergency act1on.
In Wenz v. Schwartz,
82
.
.
home state JUrlsdiction
was preempted due to mistreatment and abandonment by the possessing
mother in the home state, and the indifference by the nonpossessing
father.
The home state father objected but the new forum made an
initial custody determination when a petition was filed by a relative
one month after the child was brought to the new state.
83
Given the past performance of the court in causing controversies
rather than solving them, this writer wonders if the one provision of
flexibility 1738A(8) (a) will be abused by courts who will use it
to continue to avoid giving full faith and credit to sister state
or home state decrees.
"The UCCJA approach has been comity, continuing jurisdiction and
forum non conveniens, not full faith and credit."
84
The basic
remedy to the above stated problems in "UCCJA would be solved by
mandatory full faith and credit.
Full faith and credit jurisdiction
to enforce a decree should confer per se jurisdictior
85
•
•
•
•
t 1on.
•
mo d 1• f y 1t
nor to superv1se
1ts
roo d 1• f 1ca
II
~ither
to
By enacting 1738A,
which is mandatory full faith and credit, the legislature has
pinpointed the areas of UCCJA which were not given credence by the
courts, thus strengthening the weak parts of UCCJA which should
ultimately result in fewer kidnappings.
V.
REMEDIES
Neither PKPA nor UCCJA provide specific guidelines for situations
when the provisions of the Acts are not followed.
"Except for a
few provisions which allow a party to collect fees and costs from the
wrongdoer, the UCCJA does not specifically provide for any remedies."
86
There are three remedies that have traditionally been used in child
support cases:
contempt citations, habeas corpus and criminal sanctions.
"Contempt citations are widely used as a remedy for child
snatching."
87
Before PKPA and UCCJA, courts like New York held that
their contempt citations were of little force when the abducting
defendant and children had moved to another state.
88
PKPA contempt
citations will have force in states like New York even if the defendant
and children have moved to another state as long as ''a contestant"
continues to reside in New York.
A second common remedy was habeas corpus.
Interstate custody disputes form the majority of cases in
which habeas corpus is sought.
The effect of UCCJA is not
entirely clear. Most authorities agree that the Act is
designed to prevent the practice of seeking different orders
in different state courts. A second state's court should
hear a habeas corpus action based on another state court's
decree only to the extent necessary to determine who is
lawfully entitled to custody.89
PKPA reinforces this use of habeas corpus since broader questions of
permanent custody and custody modification are only to be considered
by the "home state . "
A third remedy used in child custody cases is criminal sanctions
against the abductor.
Remember, 18 U.S.C. 1073 extends the Fugitive
Felon Act, but it does not make kidnapping a federal offense.
A
very serious problem is not solved by the provisions of 18 U.S.C.
1073 in the form that it is 1n:
"Senate bill 105 addresses only
those cases of child-snatching and child restraint in which a custody
order was violated.
This is of great concern to us because over
70% of the cases 1n our file occur prior to issuance of a custody
awar d .
.. 90
The UCCJA does not offer any remedy either.
"The only clear
way that a parent could be charged with kidnapping under an abduction
or kidnapping statute was when the kidnapping took place after a
valid custody order was issued.
Parents were quick to note the loop-
hole; since they could not be punished absent a final custody order,
abductions were often conterminious with custody proceedings."
91
"It might be more consistent for the states to conclude, whenever
a family is breaking apart that neither parent has the right to the
exclusive custody of a child until a final ·decree is issue.
analysis would also promote the purposes of UCCJA."
92
Such an
This is the
very type of analysis that encourages kidnapping because a parent
can flee with the child, never to return to get a final decree, and
unable to be prosecuted for kidnapping.
This writer believes it might be more consistent for the states
to conclude that whenever a family 1s breaking apart that both parents
have legal custody and neither parent can take the child without the
other parent's consent.
By awarding joint custody until a final
decree is awarded, either parent could be subject to kidnapping
statutes, therefore kidnapping is deterred.
.
.
.
Court agreed w1th
th1s
analys1s.
An Illinois Appellate
93 t h e cour t
.
In State v. Harr1son,
determined that a father who was granted joint custody with a ·mother
could be convicted of child abduction if he took the child without
the mother's permission.
The court's rationale was that the purpose
of the state kidnapping statute was to deter child snatching and that
23
OfJ.'.f)·o~.'·'
~
J
criminal sanctions should be used because civil remedies were insuf.
fic1.ent.
IV.
94
JOINT CUSTODY AS A PREVENTATIVE OF KIDNAPPING
The purpose of PKPA is to prevent parents who are unhappy with
custody decrees from kidnapping their children.
into the issue and find out
whatit~about
the parents want to kidnap their children.
Why not dig deeper
these decrees that makes
"The specifications of
all custody orders revolve around questions of parental roles vis-avis the child(ren) and physical access of parents to their children.
Recent studies of the impact of divorce on children have identified
symptoms associated with sole custody arrangements.
Children are not
alone in experiencing negative effects - custodial and noncustodial
parents suffer as well."
95
This writer believes that it is these "negative symptoms" which
are the cause of kidnapping in many situations.
Perceived unreasonable
child custody decrees may result in unbearable frustration for
parents, who with their backs against the wall, resort to kidnapping.
"The first, most basic step to take is to change the starting point
or premise for determination of child custody, thus changing the
nature and course of the process itself.
Instead of a win or lose,
all or nothing presumption, there must be a presumption of consensus,
equality and the protection of parent-child bonding."
96
Joint
custody is a custody arrangement which gives both parents equal
rights and responsibilities to the minor child and neither party's
. h ts are super1or.
.
97
r1g
"The traditional custody arrangement designates
one parent as sole custodian and the other parent as the "visitor."
This and other research shows that parents face major problems
in adjusting to sole custody arrangements." 98
Noncustodial parents for example, face the loss of familiar
activities and habit systems. Several researchers report
symptoms in divorced parents similar to bereavement;
both parents experience feelings of loss, previously
unrecognized dependency needs, guilt, anxiety and depression. A pervasive sensation of the noncustodial
parentk usually the father, is that of the loss of his
child.~g
One of the factors particularly important to adult adjustment to divorce is the amount of contact and interaction sustained with the children (the smaller the loss
of parent-child bonding and interaction, the better the
adjustment) . To the extent that parental dysfunction
affects children adversely, sociological studies seriously
challenge also the assumption that sole custody arrangements
serve the "best interest of the child."100
By avoiding sole custody arrangements, these feelings could possibly
be eliminated and certainly reduced.
Advocates of joint custody point out that joint custody makes
cooperation between parents possible because it eliminates the need
for and the likelj hood of power plays between them.
101
"There is
no battle because there is no contest and no prize to win.
There 1s
no loyalty conflict because children do not have to choose between
parents and one parent does not need to convince the child that the
other parent is less fit."
102
"The psychological boost to all
involved adds to the incentive to work together for mutual solutions
to problems.
Unlike sole custody, a joint custody arrangement
meets the psychological needs of both the child and the parents."
It just makes sense that court decrees which would meet the "psychological needs" of all involved would reduce the need to kidnap
as an alternative.
25
103
"Most of the legal literature leaves unquestioned the biases
in favor of sole custody and the use of "experts" rather than parents
• •
11104
thernse 1 ves t o rna k e th e cus t o d y d ec1s1ons.
In joint custody,
legal custody is given to both parents, but physical custody is
alternated according to the agreement of the parents, and courts
question whether two people who are adversaries can work out and
carry through a compromise agreement in regards to their children.
"Joint custody may provide an incentive for parental cooperation
because a breakdown of the arrangement will likely result in an
award of sole custody to the parent who did try to reach an agreement."
(In most of the six states that have joint custody,
106 California,
Wisconsin, Iowa, Oregon, North Carolina and Maine, both parents
have to agree to joint custody before a court will award it).
If responsibility cannot be delegated equally, control
should be delegated in favor of the parent who is most
likely to encourage and respect the child's relationship
with the other parent. By contrast, under today's custom
of choosing between parents, control tends to go to the
parent who is most adamant about excluding the other,
mounts the strongest courtroom battle and is least open
to the idea of cooperating. 107
Under the court's present system, parents who get the short end of
.
the deal are the very parents that are compelled to forum shop 1n
order to gain a more favorable arrangement for themselves, and forum
shopping in the past has led to kidnapping.
There are many logistical problems associated with joint custody
which have been widely written about.
This is not a paper on joint
custody in itself, but is a discussion of joint custody in relation
to kidnapping.
The main problem with joint custody in relation to
PKPA is that it is not provided for in PKPA and "joint custody is
26
non.~
O •) \. . v
105
considered undetermined custody in the interstate context." 108
one author suggests that joint custody may cause an increase in
child-snatching by parents who want to avoid or maintain joint
custody.
109
(As previously mentioned, there are now only a few
states that authorize joint custody.
While as many as twenty-
eight states recognize some sort of shared custody, it is the legal
equality
of joint custody that makes it so appealing.)
This writer
does not believe that child-snatching will increase if joint custody
is awarded because of the passage of 28 U.S.C.
§
1738A.
Under this
section, forum shopping is disallowed while continuing jurisdiction
of the home state has taken its place.
In other words, if the
court granting the original decree is the proper forum and if a
sister state gives the original state full faith and credit as well
as defers its modification petitions to the "home state," then
child-snatchinq will not
- increase.
PKPA is a far cry better than
~
UCCJA for deterring kidnapping, but nationwide recognition of
joint custody may be the best preventative of them all.
VII.
CASE LAW
To date, only one case has been decided under PKPA.
The
Family Court of Westchester County, New York, upheld the provisions
of PKPA and has set an example for future courts that will be us1ng
PKPA.
The case is an excellent application of the continuing
jurisdiction and full faith and credit provisions of PKPA as well as
a look at how and when PKPA supersedes UCCJA.
The result of
William R. B. v. Cynthia B. 110 was that the New York Family Court
27
deferred jurisdiction to Connecticut, the home state and residence
of the father, petitioner.
The facts are as follows:
The Connecticut court entered a
divorce decree for Mr. & Mrs. B. on January 7, 1980, and a child
custody decree on August 15, 1980 which awarded the child to the
respondent mother.
The Connecticut court expressly retained JUrls-
diction and made orders as late as January, 1981, regarding visitation by the father.
By petition, dated December, 1980, the petitioner, father,
sought modification and enforcement of a Connecticut order in a
sister-state court, New York.
In February of 1981, the respondent
made a motion in the New York court to dismiss the petition.
this motion, the New York court asked itself two questions:
Upon
1)
did
Connecticut have jurisdiction to render the custody decree, and 2)
at the time the proceeding was commenced in New York did Connecticut
have jurisdiction to modify the decree.
112
The court first looked to UCCJA and decided that the proper
forum was New York because it had become the home state of the child
since he had resided there with his mother for over six months.
court fell into the pitfalls of UCCJA
The
previously discussed, and
decided that no "significant connection" or "substantial evidence"
.
C onnect1cut.
.
ll)
. t e d 1n
ex1s
.
d , '' However,
But, t h e cour t con t 1nue
application of PKPA alters the result."
U.s.c.
114
The court applied 28
1738A(f) which says in essence that a court shall enforce
according to its terms, and shall not modify any child custody
determination made by a court of another state.
In dicta, the court
continued, "Where the UCCJA provides bases for jurisdiction which
are alternatives to the "home state," the PKPA confers exclusive
and continuing jurisdiction in the home state. "
1738A(c) (2) (E) andl738A(d) for the principle.
115
The court cited
The court held that
"The Connecticut court has continued to exercise jurisdiction and
until it declines to do so, this court will defer to the jurisdiction
of Connecticut, the home state, which in fact remains the residence
of one of the contestants."
116
After dismissing the motion, the court in the last paragraph
of the opinion noted that "petitioner is not precluded from returning
to the court should the Connecticut court in the future, decline
jurisdiction over this matter or rule that New York would be a more
appropriate forum to hear this matter."
117
How much precedence this particular case will be given 1s hard
to say since it is a decision by a family court, and since PKPA was
the basis for the decision of this case in May, even though PKPA
didn't become effective until July, 1981.
VIII.
EFFECT OF PKPA ON TEXAS LAW
Immediately following the enactment of the Texas Family Code,
118
.
1L05 , Texas recogn1ze
. d cont1nu1ng
·
·
·
· d 1ct1on.
·
·
Sec t 1on
JUr1s
the more recent cases such as Crockett v. Crockett,
been previously discussed in this paper, disavowed
tinuing jurisdiction.
119
But,
which have
perpetual con-
Now, with PKPA superseding state law, Texas
will be required to resort back to recognizing continuing jurisdiction
in the "home state."
Under section 11.053 of the Texas Family Code,
Texas had a tradition of giving full faith and credit to sister
29
OfJ00~~
states
120
and 1738A will strengthen the practice.
Texas favors in personam jurisdiction in the International
121
. t 1n personam JUrls
·
· d 1ct1on.
·
·
Shoe sense wh 1. 1 e UCCJA a 11 ows more 1 en1en
UCCJA is in line with PKPA and will have to be followed by Texas
even though Texas may be compelled to give full faith and credit to
judgments from other states who are acting in circumstances when a
Texas court would have held no jurisdiction for the original decree.
An important issue is whether Texas statutes are automatically
supersided by UCCJA by virtue of PKPA.
This writer will guess that
they are in essence even if not in form.
CONCLUSION
Because of the traumatic effects of kdnapping on all the parties
involved, this country needs cooperation among the states in carrying
out the legislative intent of the Parental Kidnapping Prevention Act.
Congress has made full faith and credit mandatory in 28 U.S.C.
§
1738A and the states should abide by this provision and not try
to find a loophole.
If the states do not cooperate, legislation
should be passed which will promote jurisdiction in the federal
district courts for interstate custody decrees.
Congress has said that the FBI will assist 1n finding kidnapers
and the Justice Department should abide by this provision, regardless
of their former policy of not getting involved in domestic affairs.
All of the states, especially states like Texas which have not
adopted UCCJA, should become more familiar with the provisions and
practices of that act.
If PKPA combined with the traditional remedies in child custody
cases can't cause a decrease in the number of parental kidnappings
per year, a new form of child custody decree such as joint custody
may be in order.
Neither parent should be threatened with the loss of his or
her child, just as children should not have to face the loss of a
parent.
Children are entitled to have a better sense of security
than this 9 year old boy.
Our legal system will be doing families a terrible injustice if they
allow PKPA to become a "toothless tiger."
ooo~:
The Parental Ki dna pping Prevention Act
TITLE 18
CRIMES AND
RIIv1INAL PI J ,EDURE
PART 1-C IJ\1ES
CHAPTER 49-FUGITIVES FHOM JU TICE
~~?Ught to u.vofd prosecution or glvlng te8tlmony
~Dt&l IUdnaplnlf IUld Jnteutat«l or
laternatlonal Yll.rht to Avoid Pro11ocu-
ttoa tJoder Applicable State l'e~lony Statutee. Puli. I •. 00-6ll , J 10, ))ce. 28. ]{}~. IH
Stat. !673, pr ov ided t hat:
•
"(a) lo Ylew oC the tlnJhtKII oC the
ongreu ond the liUtpoMeH or Ht!CtiooH
6 to 10 oC lhl11 Act set forth In t~ecUon
302 [f.robalJiy meaoH H ·tluu 7 ut l'ub .L.
~1 , aet out as a note under tie<:tloo
l738A of Title ~ J udlcillry autl J ud lclo I
Procedure), the \..:ODgreu ber I.Jy e xpreR8·
ly declare. Ita Intent th11t aectlon 1073 nf
tltle 18, United States Code [thltl Hectluo),
apply to caRes Invo lving p11rentul kltl·
naplng a.od lnterata le or luterotttlooal
flight to avo id prosecution under appll a ble State felony atatutcR
"(b) The Attorney OeoeraJ of the lloited Btatea, not iater then 120 days attu
H~
th date of the couctmcot ut !hiM
lion
(Dec. 2R. 1080) (and on c ever)• U mont hli
durin~ tile 3-ycur 1 1~ rlml loll wing tiUI·h
120· tloy p<orlud) , llhllll 11ul.llllt a r epor t ' "
the CungretHI with r RPC<'t to alepH t11kcu
n comply with the Intent or the C••oKn.:wH
Het tnrth In ub11ectlon
repnrt 11hall !uclu!l~
(11)
Enl"h
HU!'It
relutiDK t u the nu,uht-r 11
for conaplnlnt" uo 1le r c<·
lion 1073 nt title lH, U1 !ted .' tal1:11 Cud,.
[thla llectlunJ. In en s lu\'ol\·ln~ r•11r
ent~tl kidnaping;
"(2/ datil r cla.tlog to tltt! u rnllcr •Jf
(•o mp alotll !HIIued In auch c1111 · ; 1111tl
"(3) auch uthcr lnturmutluo 1111 tullY
UMiat In deRcrll>log lh~ uctlvlll clll ur tl.u
DeJ)ertment of J uotlce to ~onfur111unt·c
wltb 1uch Intent."
"(1) daln
appllc~:~tlooR
PART V-PROCEDURE
CHAPTER 115-EVIDENCEi DOCUMENTARY
s
c.
rai th UIIU cr 1\ll 1(1\'t'D tu
chill.! cu1:1tody ctt>tcrmlnatiouR.
1 80 Amendment. l'ull.l •. 1)114111,. l H(IJl.
J>cc. 28, 1080, Ol ~tul. 3571. ud'''~~~ ltc111
17
A.
113&\.
J.'u l l
.
~11l f~lth and
re<llt given to chtltl cuMmly
tlcr~nnlnatloru~
(a) Tbe appropriat e authorlt!etJ of ~very State shall enforce accordin g
to lts terms, and shall not modtry except as provided In subaectlon (t) or
this section, any chlld custody determination made consistently wlth the
provisions ot thle section by a court or another State.
(b) As used In this section, lhe term{1) "child" means person under the age or eighteen;
( 2) "contestant" means a person, Including a parent, who clulms
a right to.~ustody or vlsltaUon ot a child;
i( 3) .. custody 'd etermination'' m'eans a jud ment, decree, or oth r
order of a court pr9vtdt'ng for the custody or visitation of a child ,
and includes permanent -and temp orary orders, and loltlnl ordertJ and
modl!lcatforis~ . ·
·
'
( 4) " home S~p.te" means the State In w h ich, immedlat ly pre·
ceding the lime ·Involved, the ch1ld Jlv .d with his parents, a par nt ,
or a pcreou acting ne pnrt:J nt, tor at least 1:1lx cons !Cutlvo months. n I
ln the case or a child less than six months old, t he State in which th~
child lived trom bfrth wtth any ot such persons. Pe riod o oC t ru porary absence ot any or such persons are counted as D rt d hE! sb:·
month or other perloJ;
A- 1
~fll)
~
.
,
.~
..
.. ... _
645
JUDICIARY-PROCEDURE
28 § 1738A
( 6) "modlt1cat1on" and "modlty" r rer to a custody determlnatJoo
which modltles. replaces , .supersedes. or otherwise Is made eubaequ nt
to, a prior custody determination concerning the a&mo child, whether
made by the same court or not;
(6) "person acting as a parent" meana a person, other than
parent, who has physical custody or a child and who baa either been
awarded custody by a court or claims a right to custody;
( 7) "physical custody" means actual possession and control or a
chtld; and
( 8) ''State" means a State or the United States, the Dlatrlct or
Columbia, the Commonwealth or Puerto Rico, or a territory or possession or the United States.
(c) A child cyatody determ.lnal1ruL.ma.Ue .Jl.LA..C.QUIU! .JLSt&~M ...CQP e1stent with the oroyJsions a! this sectlon...o.nly_jL11 l aych court has jurisdiction under the law or such SlAte; aod_
l2) one of the following condlllops ls met:
(A) such State (t) Is the home State or the chlld on the date
or the commencement or the proceeding, or (ll) had been the
chlld'a home State within six months beCore the date ot th
commencement or the proceeding and the child le absent from
such State because of his removal or :-otentlon by a contestant
or tor other reasons, and a contestant continues to llve In such
State;
(B) ( 1) It appears that no other Slate would have jurisdiction under subparagraph (A). and (II) It Is In the beat interest
ot the child that a court of such State assume jurisdiction b ecause (I) tho child aud his parents, or the child llnd at least one
contestant. hav e a significant connection wlth such State other
than were physical presence In such State, and (II) ther Is
available In such State subst&.ntlal evidence concerning the chlld's
present or ruture care. prote\!llon, training, and personal relationships;
(C) the child Is physically present ln such State nd (l) the
chlld has been alJandoned, or ( 11) It Is necessary tn an emergency to protect the child because he hat~ been subj ct\)d to or
threatened with mistreatment or abufle;
(D) (I) It app ars that no other State would h ve jurisdiction under subparagraph (A). (B). (C), or (E), or another State
has decHned to exercise jurisdiction on the ground that the State
whose jurisdiction Is In Issue Is the more appropriate torum to
determine the custody oC the chlld. and (II) H Is ln the best
interest of the child that such court assume jurisdiction; or
cE l the court baa contlgulng 1Yr.l!.ctt~U9.Jl. P..UIJUJUlLt..o.. au.b-
-.t.Ktlon
cul
or thls oect!on.
(d) The Jurladlctton or a court or a State which. ha.a made a child
cuatody determination conalstently with the provtatona of thlo section
.. continues ao long as the reaulrement ot subsection (c) ( 1 l oC tbla aectlon
contlnuea 1R be met and such State remalllB . t.he reaidence. .aL.t.heJililld. . or
of any contestant
(e) 'Before a chlld custody determination Is made. reasonable notice
and opportunity to be heard shall be given to the contest nts, any parent
whose parental rights have not been previously terminated and any person
who has physical custody or a child.
(t) A court ot a State may modlty a determination or the custody or
the same child made by a court or another State, IC( 1) It has jurisdiction to make such a child custody determination; and
( 2) the court oC the other State no longer bas jurisdiction, or It
hae declined to c erclse such jurisdiction to modlty such deter lna.-
tlon.
( 1) A court or a Stat
shall not exerclee Jurisdiction ln any Drace d in g
for a custody determination commenced during the pendency or a proceeJlnr In a court of another State where such court ot that other Stat Is
A-2
,_,.....
28 §1738A
exercising jurisdiction consistently with th provlslor. of thl
make a custody deter m ination.
Added Pub.L. 96-611, § 8(a)._Dec. 2 . ~~~.Q. 9'! Sti, 3669.
•I
Coocreulonal _ FlnclJnc• - d Decla.rlil·
tioD of Purpoeu lor Parental Kldnappln~
Pr•vano~ Act ot IG80 ( PutJ.L. ~11 J
Section 1 ot Pub L. fi(Hlli provided that :
"(a) The Congr~lllt flud11 that "(1) there 111 a large nod growln~
number or caaea annu ally lnvolvln~ dl:,.
putea IJetwe n J'enlOo a c lalrnln~r rll(ht ~
oc cuatody an visitation or child ren
under the laws, and lo the l'Ourtn. of
different Stat s, the Ulstrlct or Col\1111·
bla, the CommtJowesllh ot Puuto Hlrn .
aud the lerrltorl~d lillll JIO ii e~Hio u
uf
the United State11,
"(2} the la w~t ond pra ·twca IJy which
the cour111 ot tl1011e Juri dlctluus deter
tnloe their jurladlctlon to dedde such
dlwputell, and the I'Cfe('t lo he llh·cn t he
declslu011 of such dhipurcs h)' 1h t•ourtlf
ot other J u rlll cllctlu o., 11r~ ofteo lnc•on
alstent and cou!ll ·tlute;
"(3} tho&e t·horul'terlstlc!i of t II' Ill\\'
and practl<·e 111 su~h <'kwes, uloOI> willa
the llmltd Imp osed by a Feuerol HY~ten1
on the autt•orlty of euch Auch jurlscllcUon to <..onduct lnvel!l l ati•>UH anll !111.1•
other actiooH outMhle llh owu tJoull\1 ·
arlea, contrlhule tu 11 tendency of pnr ·
tlea Involved In hUch diHputeH to rn•
(jUeolly retwrt l u tile a.elzure, r<' lllruln l.
('Onc e alrnent, IIIHI lutl'rHtate tran11portn
tlon oC ctlllllrt•n, the dldrcfl'urd of c.:unrt
orllen1 l'X<'e:Holve rcliiii{Htion of t·nse ....
olltain\o~ of l'onfl l c•t\111{ orciN., h ) lilt·
court11 o ! vurloUd jurl!ulktlons. uutl ill
lcr'>IIIIC truul uncl l'•liiiiii Unkutlnro lhut
ltl 110 CXllCO:.Ivc Iiiii! tl111e l'llll81111llllg RH
to dltlrupt their •w~u\Jatlolll:l nucl t 'll lll
uw rrlul at• II \'ltlt•!i
u n•
'(•f) llrrlllnil the rt'"llliH f>( lltllhl' 1'1111·
tlltluntj 1111 d uc•t h1tle.., un· 1 Itt• fuli otre
uC th•• l'''"rt. of sllt'h jurlbclletiou•· '"
joCIVl! !1111 (ulth uud c•tt•tllt to till: Jll
tlll'lul pru~l'.<.'di lllf!i uC lhH u(her j1111..,
llll'tiCJII:j, t lw cli:'IHIV ll It of rlgloi>C o(
llhcrtr uod p101 rtf without due "'''
t"l'lilll
Of
IUW,
UIHOIIit IOH'h jtll
bun
64.
JUDICIAHY-PROCEDURE
t.'Uh
Oil
llot
to
og provl11lona &f:t out as note un l1 r thl11
11eclloo uno 11ectlone 663 ot 'l'ltl •1
u!l
1073 ur fltle 18, Crlrnea and Cr n.loal Pr1 •.
t•edur~>l Hrt• to'(1)
vron1vtc
eooperatluo
I twc "
State courts t o the •nd thal a ll ter1111
nation o f cus tody
ad vlaltntlon 111 r 11
t.lere
In the S t alt! w 1Ith can l~t•st di!
e1de the ca&P. In the lot rut u f thac·hlld ·
l'A
' t2i 1•r uuwt1· unll t::X 1 od tl
d1an~;c or lnformlttloo and nth r f" r tlh
uf lliUtiiDI 811 iBIOD
betw en . I Ill '
"lolrh ore concern
w tit lin• 1>111111 '
I'OIIIIIII'rt'l'
hdh'titJIIoj 111111 \ 1111 (llr
eljlo notiooH, unci hur111 to the w1•lfure
ot ehlldrcu 111 d th~::lr pnrl!ll ll< uud olht•r
Ullt01llan'4
''(II) Ft•r lhn~t! r~ll>~tJtl~ it 11 '"'C ' I ... ~ury
tu elltllhllah 11 nt\tlnuul ll)' lllt.lll ror lcll'ul
lug p!irentH IIUU cll lldn•u wltu truv~>l fru111
one IIUI'h jurltHII•tlou tu u1wtlol!r o1ntl ur\'
CODl BINI In C\)Dlleetlon wltll RIIC'h dill
putett, and ltJ et~lahllllh nutlvnal lill\ndnrllh
under whll•h t he t•nuriK C\t 11111'11 juriHdk
tiona will determlntl th~>lr juri dk tlon '''
de adt! ~tul'la dl:ll)utell 11nd thl! ~rr ect tu t~~.~
given by each such j uriMdlctluu 111 ~ut •h
declalooa ll)' th~ courl~ llf otht>r tHII'II ju
rladlctlnnll.
"(C) The ~tlU Crl!l purpodtld uf tlt~t•llunll
6 to 10 n f thlli Act [enul'lln~ th iH Hl.!l'llon
and 11ectlou11 6.">4(17) ttnd fl{j3 of Tltlt• 4:! ,
The PulJllc Health and \\'t~lfarc, u111end
lng tte<-llnn 6.~~ (u) of 'I'll le 42. nod eunl'l
A-3
..,{)nn
s
O{)". }' ·.. ..'
l'h lid.
1
"L3J _fu C'IIItllte
thc
f!n t ur(' ru1•11t
.. r
~ unll vlt~ltatloa deere!!~ or ~>'­
ter St tea;
"(4l__rll!l •nur age c·ontlouln~or ir t<'r~tnll·
I'" nr;:()"erHica O\' r ch lltl c 11 Htotl) In 1 lot·
intere:il ur .:reatcr hl hlllt~ o f 11 .. 1110'
l'llvlrun rn<•nl and ot tt'ure tu11111, ro •
lurlun~thl p• C11r the C'lllld,
" {!il..•nn lll jurla;dlctlonftl ClllliJI•'IIIinu
uua,:ontlh·t l>etweea
tate cu11rt11 lu
llllllll'r H 11f child cu111ndy oncl vlltatlun
wide h hfiVI' In the PIIKt re. ultell In tloc•
Hlolftln~ u( (·hllclre o trorn State teo ."tal•·
with hRr111fnl ~>ffect" on thd r 1 ••II h1•
Ina.:; t\llcl
"lilt de ter inte rHtll lt· Hl>llul'!lo:l · un .l
"' ht-r unllater!ll r eruuvu l11 u r • hllllrt•u
untl ellttken tu ol.tnlu c·uBI•'" v urool I ' IHI
lut iun uwnrcl. "
.
Htut(l <:ou,..t l'ro1~t.llnac" fiJr ('u ,.,,,~
l)l'l~nnlnutlon•;
l 'rlo r lty
TrC'Uifllnlll ,
, ......... ( 'otollll, and Otlt~r ~l!Jienoe~ . ~It I 11 11
(t ' J ur l'ulo L. IHI till pru ' llh•cl rhn r. ' 'Ill
furtloC•rttlll 'l' O ( !lot: Jlllr[l US C'I of M•lll"ll
17 3"!..\ u( lith• :!h, l'nlt('(.l ~IIIII'~ ('uclt • (tlt t
~I'C'IIIIIIJ, IIH tttlclc•c(
loy llllloM?C'IIIIII (Ill ,.f
this M•c ·ri .. ro Slnto• l'llllrl' 11rc• "'" •"lrll.:t•ol
'"
·II) ,.rr,,rt l priunty '" pr ... ·,•tt 111~'
fnr 1 uo,totly rlelernliuulloiiH; un o
" (!.!J U\ 11rcl tu the Jt!fhUII l'llllllt I I"
• IIHindy ur 'lwlrutluo llllr~ollunl '" 11
··uwlncly cll.lcrnlirou t lun whh'lo 1, 11•ll
... t r.l t·ut with the priJVIItluuH 11f riiP 'l• ~ ••
111111 JiJ~A (llti'l bC<.'tlon J, Ill''"" ur y
t ra vt·l c JH'II I'M, n t turnt>y ' ft-1!11 , , ""t ~ Hf
prlv11ll! lnvc•Htll(allunH, wlltH' . .., fc·•·l< ur
1'\ lll'llb'. , Dlld Olhr.r I! JI'DIII'" i!II 'U rrt•tl
In c· onnc•••lltlll with 111'11 Cltttlu •l v tlt•t••r
1ulnut l on In un, l''l~t· In '' llc-1•
"(.\) u t'fllllu•l•ill t h11s, wll hout I Itt·
• on!ient of Ill( person nllt '<I t 1 c·u
l11dy or vllfltutlun llllrll IIDl teo u I ' ll
tod) llc•tcnn loallun which 111 c·eou h.t
t:'nl wltl1 the provlslonl4 of
uth
.. t.
tlnu 1.73l:IA 1this Hectloul. ( I)
ron)(
filii)'
r~IIIOV tl
th e t•h) rt fr<HII tl11 •
Jlla)'llil'ul t' IIBtOtl)' or IIIICh ver oil, ·or
till wroni(Cully rdalned tlte chlltl 11f
Jc 11 viti t or u lhcr tempor11ry r lin
quh;hcucnt ot Jlh)'llkul CUilOO)' . ur
"(HI thl! court rlelerrnlnta It I 1111
pruprlutl'"
l'AH1' Il---CHlLU SUf'PO T AND E
TAI:JL! tholE . T CH' I'ATCRNITT
1§
051. 8tUt(! lttn for hllrt 8UpJWl't
~- tntf! rllall for child auvport rnust [Sec 1wckct part for tc:.rt of ( 1) tu ( I4JI
( 15) malutuln methods o! admioltJtra ton which are d sll;nc d lCJ
ns!:lure th t per3ons responsible for handll g cash r c I ts shnll ot
parllclputo In accounting or operating functions which would D ·r
mil them to con eal to the accounting r co rds th ml
r uu1h
receipts (except that tbe Secretary shall by regulatlooe J,Jro Ide for
exceptions to this requtremant in tht! case or sparsely popul t .<1 rena
where the hlrlng or uureiUionable additional starr would otherwise
be neoeusa ry) ;
( 16) provide, at the option or the State, tor the establishment,
In accordance with an (tnt lal and annually updated) advance automatic data processing planning document approved under sectlon
652 (d) or thls title, or an automatic data processing and Inform Lion retrieval system designed etrectlvely and ettlclently to assist
management in the administration or the State plan, fn the State
and localities thereof, so as (A) to control, account for . and mo nitor
( 1) all the factors tn the chlld support enforcement collection and
paternity determination process under such plan (Including, but not
llmlted to. (I) ldentlflable correlation factors (such as octal security numbers. names, dates or blr h. home addresses and mallln
addresses (includlng postal ZIP codes) or any tndlvldu 1 with respect to whom chlld support obllgattons are sought t be establts erl
or enforced and with respect to any person to whom a ch support
obllgatlons arc wing) to assure sufrlclcnt compatlblllty among the
systems or dltrer nt jurlsdlctlons to permit perlodlc screening to determine wllether such Individual Is pu.ylng or is obUgated to pay
child support In more than one jurisdiction , (11) checking ot records
of uch odlvlduals on a periodic basis with J:."'edcral. Intra.- and lotcrStnte lind local agencies, (III) matntalnlng tbc data necessary to
meet lhe Federal reporting requirements on a timely basis. and
(IV) ellnquency aud enforcement activiti es, (il) the collection anu
distribution of support payments ( hoth lorra- and Inter-S ate), the
detcrrnlnatlon, collection and distribution, of 1.ac~nt1ve payments
A-4
777
42 § 663
PUBLIC HEALTH AND WELFARE
tJoth Inter- and Intr a State, and the malnten anc of accounts receivable 011 all amounts owed, collected and distributed. od (1 11 )
the COHls or all services r ~n dered, either directly or by Interfac ing
with State rlnanclul management and expenditure lnforn ntlon, (D)
to provld~ lnterfucc With rc ords of the State's aid to families vlth
d~pendent clllldren program In order to det •rml ne If a collectio n
of a support paymen t causes a change arrcctln~ el glblllty for or
the amount or aid under such program, (C ) to provide for sec rlly
against unauthorized access to, or use of. the data In such sy tem.
and (D) to provide management Inform ation on all cases under
the Stat e plan from In itial referral or uppllc lion through coli ctlon and enforcement; anu
( 17) 111 the case of a State whi ch has 111 effect an ,.;r<•cment with
tho S crelary e ntered Into pursuant to section 6ti3 of this titl e for tht!
usc or the Pan:!nt Locator • •rvl<'e establish c1 unc1er Sf'ctlon 53 of
this title. to acc e pt and transmit to the Secretary rcque Hts for Information authorized under the provisions of the greclll (! t to be fur nished by tluch .... erv!c' to authorized persons, and to lmpot>e and collect (In accordance wllh regulations or the Secretary) at e surflci(•nt
to cover the costs to the State and to the Secretary Incurred by re son
or such requ ests, to ransm lt to the St•crctary from time to lime (in
accordance with such regulations) so much or the rees collected ns are
attributable to such cos ts to the s~cretary so Incurred, and during th
period that such agreement is In err ct. otherwise to comply wllh ·uch
agreement and regulations or the Secretary with resp ct thereto .
As amended Dec . 28,198 0, Pub .L. 9G-lill,. 9(a). 94 Stat. 3571.
ltlKO
tH~flll
Am .. ndm .. nt.
l'ur .
(17)
l' ull . t. .
ull•led pnr . (II).
(~ 051).
J)nrmcnts
to
Sllltt:s
Amendment J:.:~·~!:!_~. ~~1: ~..!..lU~!- .
·-------·
1• u tJ. L . .!.!.!i.=!i.1L.-S9.111.!:l._ll t c;J.
('cJ.
.~1/lJXI'(' .
(11)
II/
g
I J l't ·. lj, f!!.W.J, !J 4 . ·tat. :1 !;7:1 ..'1.'i 7;, . tlw f'.n t1 ·
fh i x ,'f('t:litlll llx .~tt/1.~('('. (11) II/ tJrix 1Wdi tlll trill /'( '(/(/
uftr ' J' tile IIIJII'IIcilllt·nt, ('//tTfir,· J11l11 I, IYHI , liJtl'uiJ.I •. f>G - LU.'i .
• ' t •r:litm Y(c) of /'1111 1•. !1/i-fi II lil 'tJoitlf·.~ tliat uftt·r uud IJt •lt•ll' par. (.1)
fl/ .• utnwc. (rl) II/ th ix xr·d irlll /h(' fullowiniJ rn-nt'ix imr 11'111 IJP. ilt.~r·rl·
t •d: .. l'.r('C/1/ t/111/ 11/J 11111111111/ x/1/ll/ IJt • /IUid tu IUIJI .'-:IIIli' IJII 1/I,TIIIIIIf
11/
ai/WJ/1/1 .~ t ' J /lf'lllir'<l Ill 1'{(1'1/1 IIIII 1111 Gf/1'1'1 ' 111('1~/ whit•h
i11tu purxlttlld /tl
.~r·t · lrrHI Gli.l
it
h(lx Cll/r'rf'd
uf thix tillt:."
St'dtUPI Jl(C') of /' u/1.1, .'lfi-ti/1 JIJ'fll'idt· .~ /Ill' lite .~ llil .'l lrtu titll/ (If It Jllt'iod for 11 .'lt 'lll i-l'(lltm ,,, C'flrn·t·t 11 t JJIW fJI'UJIIt it:u L <'ITto · i 11 xu l1xt •r·. {I t )(.1)
ux added ll11 1'1111.1 •. !JI.i-.!G. i.
'J'IIf' W ' l 'd to mrn•f't tltt: IJfiiOfiiiiJihit ·ut
u: ux ol11.:iatcd. Jwwen:r, 1rith th(. udditinn uf JH:W tr:xt oftr·r and
bdutv ,. u bHec. ( 11 )(.t) tm .~t·t:t i ror 9( t:) uf I'll ld '· 9ti-611 .
<'r'ruJ'
~.'..~
ot Pat"t!nl Locut()r Service In connection with t!nfurcement
of chllcl cuslml)' ln cn!'lt>H of ruu·ent.ut kldnuplng of chlltl
-Agreements with StKtes rnr use or Ptlrt'nt l..ocf\tor Hervlce
~tlon
(a) The Secretary shall enter Into an agreement with any St te which
Is able and willing to do 110, under wbich the services or the Parent Locator Service aslabllshed u"uder Hcctlon 653 of this tltle shall be made IHallabl to such Stale for th~ purpose or determining the whereabouts or any
absent parent or child ·hen such Information Is to be used to locate such
parent or child for the 1-~urpose of( 1) enforcing auy Stale or federal law with respect to the unl wtullaklng or restraint of n child; or
( 2) makln~; or enforcing n child custody determination .
H~qu''"'"
truan •uthurlw.rd prr••tt•• fur lutunnutlt n
(b) An agreement entered Into under this section shall provide that
tbe State agency described In section 654 of this title will, under proc(·durea prescribed by the Secretary In regulations, receive and transmit tu
the Secretary requests from authorized persons for Information as to (or
'
42 § 663
PUBLIC HEALTH AND \VELFARE
778
useful In dE:termlnlng) the whereabouts or any
nt parent r chi d
when such lnformatton Is to be used to locat such parent or child !or the
purpose of. ( 1) enforcing any State or Federal law with r •apect to the unlawful taking or restraint of a chlld; or
( 2) making or enfo rcing a child custody determlna ton.
Jnfor
aflon wblcb may IJe dll•clo•ed
(c) Information au thorlzed to be provided by the Secretary under this
aectlon shall be su Ject to the same condttlons wl b respect to dleclosur
aa Information authorized to be provided under section 653 of thla title,
and a request for Information by the Secretary under thls section shall be
considered to be a request for Informa tion under s etlan 65 3 or this titlE'
which Is authorlz t1 to be ro lded under such section. Only Information
as to the most recen l address and place of employment of any absent parent or child shall be provided under this section.
Ut!llnlflon•
(d) For vurpos a of this section( 1) the term "custody determination'' weans a judgment,
ecree ,
or other order or a co ur t providing tor tbe custody or visitation or a
chlld, and Includes permanent and temporary orders, e.nd Initial orders and modHicatlon;
( 2) u, term "a utho rized person" means-(A) any age tor attorney ot a.oy State having an agreement
und r this section, who has the duty or authority under the l~tw
of such !1tatf-! to enforce a child custody determination,
(B) any court huvlng jurisdiction to make or ntorcc such a
child custody del rmlnatlon. or ny agent or such cou1t; and
(C) any a,; nt or attorney or th e United StatcA, or of a State
having · n agreement under thlo t~ectlon, who has the duty or
authority to lnvesttg1 te, enrorc • or bring a prosecution with re~:~pect to the unluwtul tuklu~ or restraint or a child.
Aug. 14, 1935, c. 5:11, § 463, as added Dec. 28, 1980, Pub .L . 96-611, ~
9(11), 94 Stut. 3572.
IUfectlve Hate. ::;~ ·tlon {I( d) ut l' ull L .
provhled tl11tt · "No ugreement en ·
~11
tered Into uoder eeetlun 463 or the !'lm· ul
Security Act [111111 11 • lloo] •hall ~l!c:om
ettectlve before the d~tte oo which ae<:·
A-6
tlon li38A ut title :a-1, llolled ~late~~ ('•llle
[HPC:tluo 1738A o r Title ~. Ju cllt'IIH)' Bncl
Ju•lldBI l'r u(~llure) tnt~ urlciPcl hy thh
IItie)
llfl'ome~:~
effective ."
FOOTNOTES
1.
Shutter, Parental Kidnapping Prevention Act - Panacea- or
Tooth 1 e s s Tiger , 5 5 F 1 a . B . J . , 4 7 9 , 4 7 9 ( 1 9 81 ) .
2.
Parental Kidnapping Prevention Act of 1980, Pub. L. No. 96-611,
§ § 9 ( C ) I 11 ( C ) 1 9 4 stat • 3 57 3 ( 19 8 0 ) •
3.
Pub. L. No.
3569 (1980).
96-611, supra, note 2, § 8 (a) (c) (6), 94 Stat.
4.
Pub. L. No. 96-611, supra, note 2, § 8 (a) (c) (4), 94 Stat.
3569.
5.
Pub. L. No.
96-611, supra, note 2, § 8 (a) (c) (5), 94 Stat.
3569.
6.
Shutter, supra, note 1, at 479.
7.
Hoff, Use of the Federal Parental Kidnapping Law, 15 Clearinghouse
Review, 13 8 , 13 8 ( 19 8 1 ) .
8.
Id.
9.
18 u.s.c.
10.
§
1073 (1980).
Hoff, supra, note 7, at 140.
11.
Interview with Roger McRoberts, Assistant United States Attorney,
in charge of the Lubbock Office, Lubbock, Texas
(Feb. 1982).
12.
Shutter, supra, note 1, at 482.
13.
Id.
14.
Id.
15.
McRoberts interview, supra, note 11.
16.
Parental Kidnapping:
Hearings on H.R. 1290 Before the
Subcommittee on Crime of the Committee on the Judiciary House of
Representatives, 96th Cong., 2d Sess. (June 1980) (statement of
Francis Mullen, Executive Assistant Director to the FBI) [hereinafter
cited as Hearing on H.R. 1290].
17.
Hearings on H.R. 1290, supra, note 16 (statement of Lee H.
Haller, M.D., member of Bethesda Psychiatric Associates).
18.
Shutter, supra, note 1, at 480.
19.
Id. at 481.
20.
Hearings on H.R. 1290, supra, note 16 (statement of Donald E.
Clevenger, representing Fathers United for Equal Rights and u.s.
oivorce Reform) .
21.
Katz, Legal Remedies for Child Snatching, 15 Fam. L.Q. 103,
147 (1981).
22.
28 U.S.C.
23.
Clevenger, supra, note 2 0.
24.
u.s.
§
1738A(c) (2) (B).
Bank of American Nat'l Trust and Sav. Assn. v. Parnell, 352
29 (1956).
25.
U.S. Canst. art. VI, cl. 2.
26.
Brown v. Western Ry., 338 U.S.
27.
In re Lasiter 449 U.S. 1060 (1981).
28.
In re Five Minor Children, 409 A. 2d 198 (Del. 1979).
29.
Hoff, supra, note 7, at 139.
30.
Katz, supra, note 21, at 140.
31.
Id.
294
(1948).
Hearings on H R. 1290, supra, note 16 (statement of Hon. Hamilton
Fish, Jr., Representative from New York).
32.
33.
Id.
34.
Hearings on H.R. 1290, supra, note 16 (statement of Sandra
Coleman, parent of a kidnaped child) .
35.
Fish, supra, note 32, at 9.
36.
Hearings on H.R. 1290, supra, note 16 (statement of Russell
M. Coombs, Associate Professor at Rutgers University Law School).
37.
Fish, supra, note 32.
38.
Clevenger, supra, note 2 0.
39.
42
40.
Hoff, supra, note 7, at 139.
41.
42 U.S.C.
u.s.c.
§
§
663
(1980).
663 (a) (2),
(1980).
42.
Shutter, supra, note 1, at 481.
43.
Coleman, supra, note 3 4.
44.
Id.
45.
Pub. L. No. 96-611, supra, note 2,
46.
Coleman, supra, note 34.
§
8 ("c) (2), 94 Stat. 3569.
47.
Walker, The Parental Kidnapping Prevention Act of 1980, 3 Faro.
Advocate 19 , 19 ( 19 81) .
48.
44. A.L.R. 2d 1085 (1950).
49.
Walker, supra, note 4 7, at 19.
50.
28 U.S.C.
51.
Id., 1738A(b) (4).
§
1738A (1980).
52.
George, Crockett v. Crockett:
Continuing Jurisdiction 1s not
Extraterritorial, 21 S. Tex. L.J. 121, 125 (1980).
53.
Hearings on H.R. 1290, supra, note 16, (statement of Hon.
Charles E. Bennett, Representative from Florida).
54.
Crockett v. Crockett, 589 S.W.2d 759 (Tex. Civ. App. - Dallas
1979, writ ref'd n.r.e.).
55.
Id. at 760.
56.
Id.
57.
Id.
58.
Id. at 763.
59.
Sampson, What's Wrong With UCCJA?, 3 Faro. Adv., 28, 30 ( 198 0) .
60.
George, supra, note 52, at 124.
61.
Id. at 126.
62.
May v. Anderson, 345 U.S. 528
63.
Walker, supra, note 4 7, at 4 4.
64.
Sampson, supra, note 59, at 31.
65.
Id.
(1953).
66.
Hoff, supra, note 7, at 139.
67.
Sampson, supra, note 59, at 30.
68.
Ratner, Procedural Due Process and Jurisdiction to Adjudicate:
(a) Effective Litigation Values vs. the Territorial Imperative;
(b) The Uniform Child Custody Jurisdiction Act, 75 NW. U. L. Rev.
363, 390 (1980).
69.
William C. Koons, Jurisdiction in Interstate Child Custody
cases: Federal Law Takes Over in July, Appendix B, (July, 1981}
(unpublished article circulated among attorneys in downtown Lubbock,
Tx.) •
70.
Ratner, supra, note 68, at 392.
71.
Id. at 393.
72.
24 Or. App. 673, 546 P.2d 1104 (1976}.
73 •
2 8 U • S • C • § 1 7 3 8 A ( c } ( 2 } (' B } •
74.
Commissioner's Note, §§ 8, 9, Unif. Law Ann. 142 (1979}.
7 5.
2 7 6 Or. 7 59, 55 6 P. 2d 811 ( 19 7 6) .
76.
186 Colo. 381, 527 P.2d 811 (1974}.
77.
68 Cal. App.3d 457, 137 Cal. Rptr. 348 (1977}.
78.
Id. at 464.
79.
Ratner, supra, note 68, at 405.
80.
Koons, supra, note 69.
81.
Ratner, supra, note 68, at 403.
82 .
59 8 p • 2 d 1 0 8 6 (Mont . 19 7 9 } c e r t . den . 4 4 4 U . S . 1 0 7 1 ( 1 9 8 0 ) .
83.
Id. at 1090.
84.
Sampson, supra, note 59, at 30.
85.
Ratner, supra, note 68, at 406.
86.
Katz, supra, note 7, at 105.
87.
Id. at 118.
88.
Greenberg, v. Greenber~, 81 Misc.2d 180, 365 N.Y.S. 400 (1975}.
no.
William B. v. Cynthia B., 439 N.Y.S.2d 265 (Pam. Ct. N.Y., 1981).
111.
Id. at 266.
112.
Id.
113.
Id.
114.
Id. at 207.
115.
Id.
116.
Id.
117.
Id.
Webb v. Webb, 582 S.W.2d 168 (Tex. Civ. App. - Beaumont 1979,
writ ref . n . r . e • ) •
118.
119.
589 S.W.2d 759.
120.
Koons, supra, note 69, at 23.
121.
Sampson, supra, note 59, at 31.
89.
Katz, supra, note 7, at 126.
90.
Hearings on H.R. 1290, supra, note 16 (statement of Arnold
Miller, president of Children 1 s Rights, Inc.) .
91.
Katz, supra, note 7, at 109.
92.
Id. at 111.
93.
6 Fam. L. Rep.
94.
Id. at 2529.
2521
(Ill. App. 1980).
95.
Trombetta, Joint Custody:
Recent Research and Overloaded
Courtrooms Inspire New Solutions to Custody Disputes, 19 J. Fam. L.
213 , 21 7 (March 1 9 8 1 ) .
96.
Id. at 220.
97.
Wis. Stat. Ann.
98.
Trombetta, supra, note 95, at 220.
§
767.24 (b)
(West Sup. 1980).
99.
Hetherington, Cox & Cox, The Aftermath of Divorce, in MotherChild, Father-Child Relations (U. Stevens & M. Matthews ed. 1977).
100.
Trombetta, supra, note 95, at 224.
101.
Folberg and Graham, Joint Custody of Children Following Divorce,
12 U.S. D. L. Rev. 52 3, 52 5 ( 19 7 9) •
102.
Trombetta, supra, note 95, at 231.
103.
Id.
104.
Id. at 225.
1.05.
Folberg and Graham, supra, note 101, at 55.
106.
Kloster, The New Joint Custody Statute: Chrysalis of Conflict
or Conciliation? 21 Santa Clara L. Rev. 471, 478 (1981).
107.
Trombetta, supra,
note 95, at 233.
108.
Bodenheimer, Progress Under the Uniform Child Custody Juris~ction Act and Remaining Problems:
Punitive Decrees, Joint Custody
~d Excessive Modification, 65 Cal. L. Rev. 978, 1011 (1977).
Lemon, Joint Custody as a Statutory Presumption:
California 1 s
~w Civil Code Sections 4600 and 4600.5, 11 Gold. Gate U. L. Rev.
485, 526 (1963) .
109.