What State Has Jurisdiction over Custody of My Children? Part II

The previous post in this series discussed the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) and this post will continue with the Parental Kidnapping Prevention Act (“PKPA”).

PART II – PKPA

The PKPA, codified at 28 U.S.C. §1738A, which was signed into law by President Jimmy Carter on December 28, 1980, establishes federal standards for the determination of child custody jurisdiction.  It requires a State to give full faith and credit to any custody or visitation determination made by another State, if the determination was made consistently with the provisions of the PKPA.  Further, a State may not modify a determination made by a State of another State, unless the issuing State no long has jurisdiction or if it declined to exercise jurisdiction.   A determination is consistent with the provisions of the PKPA only if:

  1. The Court has jurisdiction under its local laws (Connecticut’s local law is its version of the UCCJEA); AND
  2. One of the following conditions are met:

a.) Such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

b.) (i) it appears that no other State would have jurisdiction under subparagraph (a), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;

c.) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse;

d.) (i) it appears that no other State would have jurisdiction under subparagraph (a), (b), (c), or (e), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or

e.) The court has continuing jurisdiction pursuant to subsection (d) of this section.

 

Subsection (d) is a catchall provision which confers jurisdiction to a State that made a determination consistently with the provisions of the PKPA if it has jurisdiction under its local laws and it remains the residence of the child or a parent.

At first glance, it may appear that the provisions of the UCCJEA and PKPA are identical, however there are significant differences.  First, the PKPA involves a two part analysis, whereas there is only one analysis under the UCCJEA.  Thus, a determination could be valid under the UCCJEA (or local laws of a State), but it could be invalid under the PKPA if the provisions of the PKPA are stricter than the local laws of the issuing State.

Second, the PKPA interjects the concept of “best interest of the child” when referring to significant connection and substantial evidence, whereas the UCCJEA does not directly consider “best interest of the child.” The “best interest of the child” standard provides the court with broad discretion to exercise jurisdiction if it determines that there is no “home state.”  Thus, it may be necessary during a PKPA hearing to elicit testimony and offer exhibits related to the “best interests of the child”.  Contrary to popular belief, the PKPA statutory analysis does not always end with “home state” status.

The attorneys at Broder & Orland LLC are experienced with the PKPA and its various exceptions. No two cases are the same.  We effectively advocate for our clients in cases of this nature by applying the appropriate provisions of the statute to the facts of each case.