Recently, I encountered a problem related to the interstate child custody arrangement. The legislators passed a law to discourage one parent from taking the child and running to a different state to ask for a modification in the custody order. Generally, the case would include one parent, for example, the father, being given the custody of the kid in their hometown. The mother moves to another state. The dad sends the kid to her for a visit and she quickly goes to a court in her new residence to get a new custody order. The new state decides that it is not bound by the laws of the mother’s home state and awards her the custody. This kind of case led to a lot of parental abductions. The parents, who resorted to this “forum shopping”, created confusion and the courts, by letting them do so, actually promoted the kidnappings.
The Parental Kidnapping Prevention Act (PKPA) was introduced by Congress in response to the parental abduction issue. 28 USC 1738A of the PKPA ensured that court orders on child custody issued in one state were recognized and enforced in other states. In its ruling in Thompson v. Thompson 484 US 174, 180 (1988), the Supreme Court noted that conventions of the Constitution typically mandate that all decisions by one state be granted full faith and credit by other states. However, this was not the case with custody determinations since they could be amended as per the best interests of the child. As a result, some courts were uncertain if these orders were final enough to invoke the full faith and credit requirements. This caused each state to contemplate that it had the authority to alter decisions from other states if it concluded that it was in the child’s best interests.The PKPA establishes a consistent rule for figuring out where a custody battle across state lines should be heard. Any ruling that is made in accordance with the PKPA must be fully accepted as valid. When a state has carried out its jurisdiction as specified by the PKPA, no other state can take up the same dispute even if it was eligible to do so in the first place. All states must honour the initial decree of the first state. The bottom line is that the court ruling in the home state must be compliant with the PKPA. If it is, then the new state usually cannot alter the initial child custody order.
The PKPA creates a uniform standard for determining jurisdiction over interstate custody disputes. A custody order which is issued in conformity with the PKPA must be afforded full faith and credit. Where a State has exercised jurisdiction consistently with the provisions of the PKPA, no other State may exercise concurrent jurisdiction over the custody dispute even if it would have been empowered to take jurisdiction in the first instance and all States must accord full faith and credit to the first State’s ensuing decree.
The key is that the court order from the home state must be issued in conformity with the PKPA. If it is, then the new state generally can’t modify the original custody order.
I’ve outlined the rules below:
1.A custody or visitation order made by a court is valid where:
a.It was issued by the Home state at the commencement of the action; or
b.No other state has jurisdiction and it is in the best interests of the child for the new court to exercise jurisdiction; and
i.the child or one parent has significant ties to the state and
ii. there is substantial evidence concerning the child’s present or future care/protection, training, and personal relationships.
c.The must be Child physically present in the state:
i.Having been abandoned or
ii. It is necessary for an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse.
d.No other state would have jurisdiction or another state has declined jurisdiction due to a more appropriate forum and it is in the best interests of the child.
e.Or the court has continuing jurisdiction.
2. The jurisdiction continues if the decision is in conformity with the statute as “as long as the requirements of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or any contestant.”
3. Before any custody or visitation determination can be made there must be notice to the other side.
4. MODIFICATIONS: Another state can modify a custody determination if:
a.It has jurisdiction to make such a determination and
b.The court of the other state no longer has jurisdiction or has declined to exercise it.
5. A court shall not exercise jurisdiction if there is a pending proceeding in another state.
6. A court of a state shall not modify a visitation determination made by a court of another state unless the court of the other state no longer has jurisdiction to modify such determination or has declined to exercise jurisdiction to modify such determination.
Even though I have reworded it, it is still quite complex. So, let’s look at how the statue works. Mom and Dad live in Nevada and, under the laws there, they and the minor are lawfully considered residents of the state. Mom is awarded custody, and Dad is granted visitation rights. Then he moves to New Jersey. During a visit with his father, he goes to the court in New Jersey and contends that he is the better parent and should get custody. The New Jersey Court, considering the PKPA, needs to decide if the Nevada court gave out a valid decree. Since all three parties were living in Nevada, the state had jurisdiction. Both parents had legal representation. Then the New Jersey court will find out if the Nevada court still holds jurisdiction. Since the judgment of divorce states that Nevada will remain in charge, New Jersey legally cannot change the judgment of divorce.
All 50 U.S. states, including New York, have implemented the Uniformed Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) to work in tandem with the PKPA. This law outlines the conditions under which a court can preside over a child custody case. Generally, it is necessary for the minor to have lived in the state for at least six months prior to the court’s approval of jurisdiction.
There is an exception. It has to do with emergencies.
