How to Handle International and Interstate Child Custody Disputes

A burgeoning area of matrimonial-law practice concerns child-custody disputes in which the parents either live in different states or different countries. The majority of practitioners have failed to make themselves conversant with the Uniform Child Custody Jurisdiction Act (UCCJA) applicable in their respective states. Even more family lawyers seem to be totally ignorant about the existence of the Federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. Sec. 1738A.

Here’s what you should know about international and interstate child custody disputes.

The pertinent portions of the PKPA provide that:

1738A(g) “A court of a state shall not exercise jurisdiction in any proceeding for a custody determination commenced during a pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.”

Even if jurisdiction is proper under subsection (g), you must next consider subsection (f), which additionally mandates:

1738A(f) “A court of a State may modify a determination of the custody of the same child made by a court of another State, if:

1. it has jurisdiction to make such a child custody determination; and
2. the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.”

One of the main purposes of the PKPA is to discourage forum shopping. Tufares v. Wright, 644 P.2d 522, 525 (N.M. 1982).

In many cases, when you are faced with defending an action, there is another action pending in the initial state. If so, Subsection (g) absolutely prohibits the second state from exercising jurisdiction. Subsection (f) provides the additional requirement in the case of modifications that the initial state decline to exercise its jurisdiction. Jurisdiction is evaluated as of the date invoked, which is the date of the filing of the action. Wanamaker v. Scott, 788 P.2d 712, 714 (Alaska 1990). Whenever there is a conflict between the UCCJA and the PKPA, the PKPAcontrols. Thompson v. Thompson, 484 U.S. 174 (1988). The PKPA preempts the area of custody jurisdiction and takes precedence over state law under the United States Constitution’s Supremacy Clause (Art. VI, Sec. 2). Unlike the UCCJA, thePKPA does not allow more than one state to exercise jurisdiction over a child at any given time. Templeton v. Witham, 595 Fed.Supp. 770, 772 (S.D. California 1984). “Where the UCCJA provides bases for jurisdiction which are alternative to the ‘home state’, the PKPA confers exclusive and continuing jurisdiction in the home state.” Bahr v. Bahr, 442 N.Y.S. 2d 687, 689 (Fam.Ct. 1981).

If you have a modification case pending in the second venue, you must go to the first venue and file a motion under Section 8(b) of the UCCJA requesting that the initial state decline to exercise its jurisdiction on the grounds of forum non conveniens. See Levy v. Levy, 434 N.E.2d 400, 406 (Ill.App. 1982). The following factors are contained in most states’ forum non conveniens sections:

1. if another state is or recently was the child’s home state;
2. if another state has a closer connection with the child and his family or with the child and one or more of the contestants;
3. if substantial evidence concerning the child’s present or future care, protection, training and personal relationships is more readily available in another state;
4. if the parties have agreed on another forum which is no less appropriate.

This will normally require an evidentiary hearing. Pierce v. Pierce, 640 P.2d 899, 903 (Montana 1982). However, if the primary facts are uncontroverted, there is no reason a court could not decide such a motion based on the pleadings and argument. Such a motion to decline jurisdiction on the basis forum non conveniens should naturally be made as soon as practicable. However, the UCCJA provides that same can be done at any time before final judgment. For example, in In re Marriage of Pavelcik, 487 N.E.2d 33 (Ill.App. 1985), a trial court was affirmed for granting such a motion even though it came one year after the commencement of the case. The court can even make such a motion sua sponte. Obviously, if it appears that the motion is made for the purpose of forum shopping, it will generally be denied. Only the initial state can decide whether to decline the exercise of its jurisdiction in any particular case. Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction Under the UCCJA, 14 Fam.L.Q. 203, 216 (1981), cited with approval in Yurgel v. Yurgel, 572 So.2d 1327, 1331 (Fla. 1990). The UCCJA also requires the judges from each contesting state to communicate with each other.

Only after determining if there is a PKPA issue do you look to the UCCJA jurisdictional tests. The UCCJA jurisdictional requirements are as follows:

1. if the forum state is or had been, for six months, the child’s home state;
2. if the forum state has a significant connection with the child or a party;
3. if an emergency makes it necessary to protect the child; or
4. if no other state would have custody jurisdiction.

With respect to the home state requirement, it is important to time the lawsuit correctly. For example, in In re Marriage of Miche, 476 N.E.2d 774 (Ill.App. 1985), the father and children moved from California to Illinois. The father unwisely filed a custody action in Illinois three months later. Home state status was measured at the time of the filing and, therefore, Illinois did not qualify as the home state.

With respect to Section 2, the Substantial Evidence Test, many practitioners think that this will always be where the children reside because that state will have medical evidence, school information, friends, family members, and other witnesses. However, it is widely recognized that the state where only the proposed custodial parent resides contains substantial evidence because statutory factors usually include the home environment and community environment of the proposed custodial parent. See, for example, In re Marriage of Bass, 530 N.E.2d 717 (Ill.App. 1988). However, the Substantial Evidence provision is severely limited by the PKPA. Under the Federal Act, this section applies only if there is no home state, and if there has been no home state in the past six months. (28 USC Sec. 1738A(C)(2)(B)) Therefore, “the best interest of the child alternative must be interpreted to include the federal prerequisite of lack of home state jurisdiction.”Michael P. v. Diana G., 553 N.Y.S.2d 689, 692-93 (A.D. 1 Dept. 1990).

With respect to the third provision, the so-called “emergency” provision, many lawyers do not realize that this section of the UCCJA provides jurisdiction to only deal with the immediate emergency and not to continue jurisdiction and ultimately grant permanent custody. Gainey v. Gainey, 604 N.E.2d 950, 952 (Ill.App. 1992). State in Interest of D.S.K., 792 P.2d 118, 127 (C.A. Utah 1990). Hache v. Riley, 451 A.2d 971, 975 (N.J. Super.Ch. 1982).

It is also not widely known that the UCCJA specifically applies internationally. Therefore, the fourth category, that no other state would have jurisdiction, would also apply to “no other country”. In Middleton v. Middleton, 314 S.E.2d 362, 368 (Virginia 1984), England qualified as a “court of another state” for UCCJA purposes. It is not the respondent’s burden to show that the other state has taken jurisdiction, but rather it is the proponent’s burden to show that no other state (or country) would have jurisdiction.

When involved in an international case in which the child has been abducted or is being wrongfully retained, you must determine whether the International Child Abduction Remedies Act, 12 U.S.C. Sec. 11.601-11610, signed as part of the Hague Convention, is applicable. If so, you may either contact the U. S. State Department Office of Citizen and Counselor Services for assistance, or you may file suit for return of the child.

Finally, the UCCJA contains a provision where the court can decline to exercise jurisdiction if the petitioner for an initial judgment has wrongfully taken the child from another state or has engaged in similar reprehensible conduct.

A practitioner getting into such a case should check carefully as to whether the statutory procedure was followed. Objections to subject matter jurisdiction can never be waived, and a failure to comply with the statute renders any judgment void, which void judgment can, therefore, be attacked at any time in any court.

It is hoped that additional opinions will come down clarifying the relationship between the PKPA and the UCCJA, as well as additional cases on the international application of the UCCJA. It is an exciting area of practice. However, it is loaded with potential pitfalls for the unwary.

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Paul L. Feinstein, a Chicago practitioner with over four decades of experience, practices family law with an emphasis on divorce litigation, consulting, and appeals. Paul is often hired by trial lawyers to handle appeals and to assist them with determining legal strategies and preserving a sufficient record at trial. He has belonged to the American Academy of Matrimonial Lawyers since 1991 and the Appellate Lawyers Association since 2010. He can be reached at (312) 346-6392. View his Divorce Magazine profile here.