(e.g., one may have home State and anoth-er significant connection jurisdiction), thePKPA gives priority to home State jurisdic-tion. This priority is intended to limit jur-isdiction in initial custody cases to oneState, the child’s home State. The PKPA’shome State priority is designed to preventa significant connection State from exer-cising jurisdiction over a matter when thechild who is the subject of the proceedinghas a “home State.”
Exclusive, continuing jurisdiction.
Ex-clusive, continuing jurisdiction under thePKPA protects an original decree State’sjurisdiction to modify its own order. Thisprotection addresses an ambiguity in theUCCJA’s modification section that somecourts have interpreted as allowing achild’s new home State to exercise modifi-cation jurisdiction even when the decreeState (i.e., the child’s former home State)could still exercise jurisdiction on signifi-cant connection grounds. Under thePKPA, the original home State has exclu-sive, continuing jurisdiction to modify itsown order to the exclusion of all otherStates, including the child’s new homeState—assuming that the original homeState has jurisdiction under State law(e.g., significant connection) and that atleast one parent or the child continues tolive there. Moreover, every State, includ-ing a significant connection State, mustgrant full faith and credit to the homeState’s order.
The PKPA did notsolve all of the problems it targeted, part-ly because of some confusion about itsrelationship to the UCCJA and the incon-sistencies between the two laws and part-ly because many lawyers and judges ig-nored the PKPA or were unaware of itsimpact on UCCJA practice. These prob-lems and inconsistencies are documentedin the
Obstacles Project Final Report.
Other Relevant Federal Laws
Some laws enacted after the UCCJA addeda Federal dimension to interstate and in-ternational child-custody practices thatwas unforeseen by the drafters of theUCCJA in 1968 (but which was consideredby drafters of the UCCJEA in 1997). Inaddition to the PKPA, these Federal lawsinclude the Full Faith and Credit provi-sions of the VAWA, enacted in 1994; theHague Convention, ratified in 1986; andthe ICARA, enacted in 1988.
In recognition of the fact thatdomestic violence victims often leave theState where they were abused and needcontinuing protection in their new loca-tions, the VAWA provides, among otherthings, for interstate enforcement of pro-tection orders. Custody provisions incor-porated into protection orders, however,are not governed by the VAWA.
Theseprovisions are “custody determinations,”subject to the PKPA and State law govern-ing jurisdiction in child-custody cases.Neither the PKPA nor the UCCJA explicitlyaddresses the key concerns of domesticviolence victims who must litigate childcustody interstate. The UCCJEA, however,addresses these concerns with a numberof provisions. For instance, it protectsagainst disclosure of a victim’s address,expands emergency jurisdiction to casesin which a parent or sibling is at risk, andrequires courts to consider family abusein their “inconvenient forum” analysis.
The Hague Convention and the ICARA.
The Hague Convention
and the Federalstatute that implements it (the ICARA)
deal with international wrongful removaland retention of children. The Hague Con-vention establishes administrative andjudicial mechanisms to expedite the re-turn of children (usually to their countryof habitual residence) who have beenabducted or wrongfully retained and tofacilitate the exercise of visitation acrossinternational borders. Under the HagueConvention, children who are wrongfullyremoved from or retained in a contractingState (i.e., a country that is party to theConvention) are subject to prompt return.The UCCJEA specifically provides for theenforcement of Hague Convention returnorders and authorizes public officials tolocate and secure the return of childrenin Hague Convention cases. The UCCJEAcontains other provisions that clarifywhen foreign custody determinations(from Hague and non-Hague countries) areentitled to enforcement and when courtsin the United States must defer to the cus-tody jurisdiction of a foreign court.
Rationale Underlyingthe UCCJEA
Custody contestants have sometimesexploited jurisdictional ambiguities todraw out litigation, secure conflicting cus-tody orders, and delay (or deny) enforce-ment of valid custody and visitation or-ders. In these instances, resources thatcould have been used to help childrenwere instead spent on multistate litigation.which was carried out by the AmericanBar Association Center on Children andthe Law pursuant to a cooperative agree-ment with OJJDP.
) Although every Stateeventually enacted the UCCJA, the handfulof States that were slow to do so becamemagnets for forum-shopping parents.
The Parental KidnappingPrevention Act
To close existing gaps and bring greateruniformity to interstate child-custodypractice, Congress in 1980 enacted thePKPA, which requires State courts to:
Enforce and not modify (i.e., grant fullfaith and credit to) custody and vis-itation determinations made by sisterStates consistently with the PKPA,unless the original State no longerhas, or has declined to exercise,jurisdiction.
Defer to the “exclusive, continuingjurisdiction” (see below) of the de-cree State as long as that State exer-cised jurisdiction consistently with thePKPA when it made its determination,has jurisdiction under its own law, andremains the residence of the child orany contestant.
(“Contestant” is de-fined as a person, including a parent,who claims a right to custody or visita-tion rights with respect to a child.)
Refrain from exercising jurisdictionwhile another State is exercising juris-diction over a matter consistently withthe PKPA.
Ensure that the following persons areprovided reasonable notice and oppor-tunity to be heard: contestants, anyparent whose parental rights have notbeen terminated, and any person whohas physical custody of the child.
State courts that exercise jurisdiction con-sistently with the criteria in the PKPA areentitled as a matter of Federal law to havetheir custody and visitation orders givenfull faith and credit in sister States. Thesecourts also have exclusive, continuingjurisdiction to modify their own ordersunder circumstances stipulated in the law.The PKPA’s jurisdictional criteria resemblethose of the UCCJA, but there are signifi-cant differences. PKPA jurisdictional provi-sions are discussed in the sections thatfollow.
Home State priority.
The PKPA prioritizeshome State jurisdiction in initial custodycases.
Whereas two States may havejurisdiction over a case under the UCCJA