Judiciary HomepageSTATEMENT of ANN M. HARALAMBIE
on behalf of
THE AMERICAN BAR ASSOCIATION
before the
SUBCOMMITTEE ON COURTS AND INTELLECTUAL PROPERTY
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
concerning
ENFORCEMENT OF CHILD CUSTODY ORDERS
APRIL 23, 1998
I am Ann M. Haralambie, a lawyer from Tucson, Arizona, where I have a trial and appellate practice specializing in custody and child abuse cases. I appear today as the designee of Jerome J. Shestack, President of the American Bar Association.
In August 1988 the American Bar Association adopted a resolution urging Congress to confirm that federal district courts have the power to resolve the issue of conflicting state claims concerning jurisdiction over child custody disputes, based on the federal Parental Kidnapping Prevention Act (PKPA) and Title III of the Constitution. It remains the policy of the American Bar Association to amend the PKPA to provide explicitly for subject matter jurisdiction to reside in the federal courts. Therefore, the ABA would support an amendment to the PKPA which provides explicitly that federal courts have subject matter jurisdiction to enter declaratory and injunctive relief to determine which state has PKPA jurisdiction to decide a custody or visitation case. I strongly support the position of the ABA.
In addition, I want to address several issues before the Subcommittee today that are broader than those addressed by the ABA policy position. In addressing these broader concerns, my remarks reflect my own experience and views and not the official views of the ABA.
Clarification of Application to Grandparent Custody and Visitation
The Parental Kidnapping Prevention Act (PKPA) applies to custody determinations, which are defined at 28 U.S.C. §1738A(b)(3) to mean "a judgment, decree, or other order of a court providing for the custody or visitation of a child," including permanent and temporary orders. That definition is broad, and on its face, it would apply to grandparent custody and visitation cases. Because the term "contestant" is defined in §1738A(b)(2) as "a person, including a parent, who claims a right to custody or visitation of a child," the definition is not meant to apply exclusively to parents. Grandparents would appear already to be included in the definition if they claim a right to custody or visitation.
I am personally unaware that there is a problem with courts failing to apply the PKPA to cases involving grandparent custody and visitation cases. Courts have generally applied the PKPA to grandparent custody and visitation cases, usually not even considering that the Act might not apply to grandparent cases.(1) The proposed amendments merely make more explicit what appears to be implicit in the existing language. My only concern is that the addition of the word "grandparent" not be construed to limit the categories of parties considered "persons" under §1738A(b)(2), and the legislative history should include a clear record on this point.
Background of the PKPA and Current Application
The PKPA was derived from the Uniform Child Custody Jurisdiction Act (UCCJA), with one major difference. Consistently with the Commentary to the UCCJA and the law review writings of its drafters, Congress expressed a clear preference for custody jurisdiction in the child's home state, absent declination of jurisdiction by that state's court, and for providing clearly that only one state had custody jurisdiction at a time.
Some state court judges, often elected to their positions, favored in-state litigants despite PKPA prohibition on their exercise of custody. Others too broadly construed "emergency" jurisdiction and otherwise found an implied "best interests" exception to the clear PKPA jurisdictional requirements. Still others believed that the poorly named PKPA applied only in cases of parental kidnapping, not in all enforcement or modification actions. I do judicial training and continuing legal education presentations around the country, and there continues to be a surprising number of lawyers and judges who analyze cases solely with respect to the UCCJA, without regard to the PKPA. In general, courts appear to be becoming more familiar with the PKPA; however, there are still cases which go to the supreme courts of two competing states, with resulting conflicting custody orders. In more cases litigants cannot afford to appeal adverse decisions, resulting in conflicting trial court decisions. This is exactly the situation which the PKPA was designed to remedy. Such inconsistent results discourage compliance even with one's own state's visitation provisions, because if the child is permitted to go to the other parent's state for a visit, then that state's conflicting custody order will be enforced.
Even where appellate courts eventually apply the PKPA correctly, such as in the well-publicized Baby Jessica case, the child's custody is in limbo for years. Custody jurisdiction experts generally agreed that in the Baby Jessica case, Iowa had home-state jurisdiction and that, pursuant to the PKPA, Michigan was required to enforce without modifying the Iowa order. After the Iowa Supreme Court affirmed the trial court's decision, more than a year later, and the DeBoers were ordered to return the child to Iowa, the DeBoers filed an application in Michigan seeking to get around the Iowa orders. Another year passed before the Michigan appellate courts eventually agreed that Michigan lacked subject matter jurisdiction and was required to give the Iowa order full faith and credit. Unfortunately for Baby Jessica, her emotional ties to the DeBoers were based on the time she spent with them while the litigation dragged on in two consecutive states, not on niceties of the federal law.
Federal District Court Jurisdiction
In previous practice, when state courts refused to honor the PKPA restrictions on their jurisdiction, litigants had access to federal district courts to answer the narrow question of which state had jurisdiction under the PKPA. This remedy was quick, consumed little time in the federal court, and spared the children years of appellate litigation in two different states, with the possibility of conflicting state supreme court decisions at the end of the appeals process.
One example from my personal practice may be illustrative. I represented an agency which filed a dependency action concerning a young child. Both parents appeared at the trial, the Arizona mother agreeing that the child should be placed in a foster home, and the Texas father arguing for custody. After a full trial, at which all parties (including the child) were represented by counsel, the court adjudicated the child dependent and ordered that he be placed in a foster home. The father requested that he be permitted to take the child out for dinner before he left town, and the court and agency agreed. Instead, he drove the child to Texas. An arrest warrant was issued for felony custodial interference, and the father was picked up in Texas. The child was placed in a receiving home until the agency could send someone to pick the child up. The father objected to a Texas state judge, who ordered the father released and entered a custody order in favor of the father, stating that he seemed like a nice guy, and that it is better for the child to be raised by a parent in Texas than in a foster home in Arizona. The agency retained counsel in Texas who filed an action in federal district court. The federal hearing took less than one hour. Within two weeks of the child's being taken to Texas unlawfully, the federal judge determined that Arizona was the child's home state, that the mother and agency continued in Arizona, that the Arizona order had been entered with notice, and that the Texas state court had no jurisdiction to enter an inconsistent order. Rather than wait for a year while the Texas appellate courts determined that the PKPA required enforcement of the Arizona order, the child was timely returned, with little cost to the parties.
On January 12, 1988 the United States Supreme Court rendered its decision in Thompson v. Thompson, 184 U.S. 174, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988), holding that the PKPA did not create an implied cause of action in federal court to determine which of two conflicting state custody decrees is valid. This holding was based on the Supreme Court's determination of Congressional intent in enacting the statute. Custody lawyers and other commentators overwhelmingly expressed disappointment in this decision.
Most of the federal district courts which considered the issue prior to Thompson had ruled that federal courts did have subject matter jurisdiction over the narrow jurisdictional issue.(2) The Third, Fourth, Fifth, and Eleventh Circuit Courts of Appeals based their finding of jurisdiction on the proposition that, without a federal forum to enforce the restrictions imposed by the federal statute upon state courts, those restrictions would be rendered nugatory, and Congress' intent would be thwarted.(3) The Ninth Circuit disagreed,(4) as did dicta contained in decisions by the D.C. Circuit(5) and the Seventh Circuit.(6)
Federal court jurisdiction would not permit litigants to address the merits of custody determinations, but rather, in the words of the Fourth Circuit Court of Appeals, to serve "as a referee between conflicting state custody decrees."(7) This function is limited to determining which of two competing states has the jurisdiction to decide the merits of the case under the requirements of the PKPA. The federal court would be limited to granting declaratory and injunctive relief only.(8) The hearings, because they deal with only a narrow legal issues, are typically quite short and do not pose an unreasonable burden on the federal dockets. The federal remedy would greatly reduce the duplicative state court proceedings, which often require parties to conduct lengthy evidentiary trials on the merits in two different states. It also prevented middle- and lower-income parties from being forced into defaults in distant and improper venues because they could not afford litigate trials in those states. Again, this result is contemplated by the PKPA.
In closing, I urge you to support an amendment to the PKPA which provides explicitly that federal courts have subject matter jurisdiction to enter declaratory and injunctive relief to determine which state has PKPA jurisdiction to decide a custody or visitation case.
Judiciary Homepage1. See, e.g., Godwin v. Bogart, 674 So.2d 606 (Ala. App. 1996); In re Appeal in Pima County Juvenile Action No. J-78632, 147 Ariz. 584, 712 P.2d 431 (1986); Brossoit v. Brossoit, 31 Cal. App. 4th 361, 36 Cal. Rptr. 2d 919 (1995); Perez v. Perez, 212 Conn. 63, 561 A.2d 907 (1989); Richie C.H. v. Diane E.D., 1997 WL 297000 (Del. Fam. Ct. 1997); Golding v. Golding, 667 So.2d 404 (Fla. App. 1995); Harris v. Simmons, 110 Md. App. 95, 676 A.2d 944 (1996); Owens by and through Mosely v. Huffman, 481 So.2d 231 (Miss. 1985); In re Aldridge, 841 S.W.2d 793 (Mo. App. 1992); Maureen S. v. Margaret S., 184 A.D.2d 159, 592 N.Y.S.2d 55 (1992); Williams v. Williams, 110 N.C. App. 406, 430 S.E.2d 277 (1993); Carpenter v. Carpenter, 326 Pa. Super. 570, 474 A.2d 1124 (1984); Brown v. Brown, 847 S.W. 496 (Tenn. 1993); Coots v. Leonard, 959 S.W.2d 299 (Tex. App. 1997).
2. See, e.g., McDougald v. Jenson, 786 F.2d 1465 (11th Cir. 1986); Heartfield v. Heartfield, 749 F.2d 1138 (5th Cir. 1985); Hickey v. Baxter, 800 F.2d 430 (4th Cir. 1986); Meade v. Meade, 812 F.2d 1473 (4th Cir. 1987); DiRuggiero v. Rodgers, 743 F.2d 1009 (3rd Cir. 1984); Flood v. Braaten, 727 F.2d 303 (3rd Cir. 1984); Templeton v. Witham, 595 F. Supp. 770 (S.D. Cal. 1984) [but reversed 805 F.2d 1039 (9th Cir. 1986)]; Davis v. Davis, 638 F. Supp. 862 (N.D. Ill. 1986); Wyman v. Larner, 624 F. Supp. 240 (S.D. Ind. 1985); Martinez v. Reed, 623 F. Supp. 1050 (E.D. La. 1985); Alexander v. Ferguson, 648 F. Supp. 282 (D. Md. 1986); Olmo v. Olmo, 646 F. Supp. 233 (E.D. N.Y. 1986); Maxie v. Fernandez, 649 F. Supp. 627 (E.D. Va. 1986).
3. See, e.g., McDougald v. Jenson, 786 F.2d at 1477 (11th Cir. 1986); Heartfield v. Heartfield, 749 F.2d at 1141 (5th Cir. 1985); Flood v. Braaten, 727 F.2d at 312 (3rd Cir. 1984).
4. See Thompson v. Thompson, 798 F.2d 1547 (9th Cir. 1988).
5. See Bennett v. Bennett, 682 F.2d 1039, 1043 (D.C. Cir. 1982).
6. See Lloyd v. Loeffler, 694 F.2d 489, 493 (7th Cir. 1982).
7. See Hickey v. Baxter, 800 F.2d at 431 (4th Cir. 1986).
8. See, e.g., Meade v. Meade, 812 F.2d at 1476 (4th Cir. 1987).