Ann C. Meade v. Frank O. Meade , 812 F.2d 1473 ( 1987 )

JAMES DICKSON PHILLIPS, Circuit Judge:

This case involves conflicting child custody orders entered by the states of Virginia and North Carolina. The United States District Court for the Middle District of North Carolina applied the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (PKPA), designed by Congress expressly to resolve such conflicts, and concluded that the Virginia order was entitled to enforcement by the courts of North Carolina under principles of Full Faith and Credit. Appellant Ann Meade appeals that final order, contending that the district court misapplied the PKPA. We disagree with her and affirm.

I

On November 10, 1982, the Virginia Circuit Court for the County of Pittsylvania awarded appellee Frank Meade an unconditional divorce from appellant Ann Meade. While the court had awarded the father temporary custody of their three children pending the final divorce decree, he voluntarily agreed to give the mother permanent custody of the two youngest children. In the final custody order, the father retained visitation rights for these two youngest children and retained permanent custody of the oldest child. When the divorce action commenced, both parents and all three children resided in Virginia. The mother and two younger children now reside in North Carolina.

In August 1985, the mother and father disagreed on plans to allow one of the younger children, Edmund, to live with the father in Virginia. The mother turned to a North Carolina state district court for an ex parte order, and the court assumed custody jurisdiction and awarded temporary legal and physical custody of Edmund to the mother in August 1985. The father responded by obtaining an ex parte order from the same Virginia circuit court which issued the divorce and initial custody decree. On September 3, 1985, this Virginia court declared that Virginia had continuing custody jurisdiction over all three children, that it had not and would not relinquish jurisdiction, and that Edmund’s best interests required his return to his father’s custody. The Virginia court also requested the North Carolina court to vacate its ex parte order.

On September 24, 1985, the North Carolina court, rejecting the father’s contentions that North Carolina lacked both personal and custody jurisdiction, awarded temporary custody of Edmund to the mother. The father did not appeal. On November 8, 1985, the Virginia court awarded temporary custody to the father and ordered the mother to deliver the child. The mother, who appeared before the Virginia court, did not appeal.

Rather than obey the Virginia order, the mother sought a declaratory judgment in United States District Court, claiming that North Carolina had exclusive jurisdiction under the terms of the PKPA. The district court disagreed, 650 F.Supp. 205, and the mother appeals.

II

Before passage of the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A, the notorious confusion surrounding interstate custody disputes encouraged one parent to abduct his or her own children from the parent with custody and then shop for a forum which would enter a different custody order. Even when “parental kidnapping” was not involved, one or both divorced spouses often moved and sought a different custody order from their new state of residence. The result, seen with depressing frequency, was conflicting custody orders from two states, neither willing to concede the exclusive custody jurisdiction of the other. The victims of this jurisdictional disorder included not only the children and their parents, but also principles of interstate comity.

For a number of reasons, the federal courts proved unwilling to attack the problem. First, in a line of cases stemming from dictum in Barber v. Barber, 62 U.S. (21 How.) 582, 604-05 (1859) (Daniel, J., dissenting), federal courts refused to recognize subject matter jurisdiction over cases involving probate or domestic relations. 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction § 3609 (1975). Thus, even when the parties to a domestic dispute could satisfy the requirements of the federal diversity statute, 28 U.S.C. § 1332, a federal court would dismiss the case for lack of subject matter jurisdiction. Second, a line of Supreme Court decisions inconclusively suggested that federal courts might not grant full faith and credit to child custody decrees because they are invariably subject to modification and thus not “final,” and because a contrary rule would entangle federal courts in the complicated determination of the merits of child custody orders. See Ford v. Ford, 371 U.S. 187, 193-94, 83 S.Ct. 273, 276-77, 9 L.Ed.2d 240 (1962); Kovacs v. Brewer, 356 U.S. 604, 607, 78 S.Ct. 963, 965, 2 L.Ed.2d 1008 (1958); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953); New York ex rel. Halvey v. Halvey, 330 U.S. 610, 612-15, 67 S.Ct. 903, 905-06, 91 L.Ed. 1133 (1947). See also Currie, Full Faith and Credit, Chiefly to Judgments: A Role for Congress, 1964 Sup.Ct.Rev. 89, 115.

The Uniform Child Custody Jurisdiction Act, now adopted by all 50 states, represented a novel effort to resolve the confusion by promulgating coherent and uniform rules for determining custody jurisdiction. See Uniform Child Custody Jurisdiction Act, 9 U.L.A. 111 (1979). The UCCJA sought to impose order on chaos principally by forcing the resolution of modification issues in the court which initially made a custody determination. Section 14 provides that when “a court of another state has made a custody decree, a court of this State shall not modify that decree” so long as the state with initial jurisdiction retains any basis for initial jurisdiction substantially in accord with the second state’s jurisdictional law. Section 15, in turn, provides that the second state will enforce the decree of the initial state as long as the initial state retains custody jurisdiction. When both states have adopted the UCCJA, the apparent effect of §§ 14 and 15 is to give continuing exclusive jurisdiction to the initial state so long as that state retains a “significant connection” basis for jurisdiction. This feature reduces the incentive for moving the child to another “home state” in order to manufacture a new custody jurisdiction.

Unfortunately, the UCCJA has proven to be an imperfect remedy. While all states have now adopted some version of the UCCJA, they have enacted different versions and state courts have varied in their interpretations of the Act’s requirements. Some states, for example, conclude that the Act permits them to modify another state’s order as . long as it has jurisdiction under the Act to issue an initial order. See Krauskopf, Remedies for Parental Kidnapping in Federal Court: A Comment Applying the Parental Kidnapping Prevention Act in Support of Judge Edwards, 45 Ohio St.L.J. 429 (1984). The result has been variation where uniformity is desperately needed.

Congress designed the PKPA to remedy the defects of the UCCJA with a uniform federal statute. While under the UCCJA scheme some states profess to find modification jurisdiction so long as they can properly exercise initial custody jurisdiction, the PKPA prevents a second state from modifying an initial state’s order except in carefully circumscribed situations. This presumption of continuing and exclusive jurisdiction discourages dissatisfied parents from seeking new custody orders from a second state. Differently stated, the statutory presumption encourages parents to concentrate their energies on presenting all evidence about their child’s best interests in the courts of a single state, ordinarily the court which entered the initial custody decree.

The PKPA’s relatively simple criteria for identifying the one state with custody jurisdiction must be applied by state courts themselves when they are asked to resolve a child custody dispute. The PKPA quite simply preempts conflicting state court methods for ascertaining custody jurisdiction. In addition, this circuit has already joined three others in recognizing that the PKPA creates federal question jurisdiction in the lower federal courts to resolve interstate custody disputes whenever conflicting custody decrees have issued in violation of the Act. Hickey v. Baxter, 800 F.2d 430 (4th Cir.1986). See also McDougald v. Jenson, 786 F.2d 1465 (11th Cir.1986); Heartfield v. Heartfield, 749 F.2d 1138 (5th Cir.1985); Flood v. Braaten, 727 F.2d 303 (3d Cir.1984). But see Thompson v. Thompson, 798 F.2d 1547 (9th Cir.1986). By empowering federal courts to act “as a referee between conflicting state custody decrees,” and by providing relatively straightforward criteria for testing conflicting assertions of jurisdiction, the PKPA permits federal courts to grant declaratory and injunctive relief on the jurisdictional dispute without reassessing the merits of any particular state’s custody determination. Hickey, 800 F.2d at 431.

Ill

As the district court correctly recognized, application of the PKPA to this type of dispute is relatively simple. The governing principle of the PKPA appears in § 1738A(a), which provides that “authorities of every state shall enforce according to its terms, and shall not modify ... any child custody determination made consistently with the provisions of this section by a court of another state.” (Emphasis added.) Section 1738A(d) then provides the crucial presumption of continuing jurisdiction:

The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirements of subsection (c)(1) [that the state have jurisdiction as a matter of its own law] of this section continues to be met and such State remains the residence of the child or of any contestant. (Emphasis added.)

Section 1738A(f) restates the same presumption, but in terms of an interdiction of assertions of jurisdiction by a second state when the first state’s jurisdiction continues.

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. (Emphasis added.)

The effect of §§ 1738A(d) and 1738A(f) is to limit custody jurisdiction to the first state to properly enter a custody order, so long as two sets of requirements are met. First, the PKPA defines a federal standard for continuing exclusive custody jurisdiction: the first state must have had proper initial custody jurisdiction when it entered its first order (according to criteria in the Act) and it must remain “the residence of the child or any contestant” when it later modifies that order. Second, the Act incorporates a state law inquiry: in order to retain exclusive responsibility for modifying its prior order the first state must still have custody jurisdiction as a matter of its own custody law. Even if the federal and state criteria for continuing jurisdiction are met, the first state's courts can, if they choose, voluntarily relinquish their jurisdiction in favor of a court better situated to assess the child’s needs.

As the district court correctly observed, there is no question here that the Virginia circuit court properly exercised initial custody jurisdiction and refused to relinquish its jurisdiction voluntarily, and that Virginia remains the residence of one of the contestants. The only remaining question, then, is whether the Virginia court retained jurisdiction to modify its initial order purely as a matter of Virginia law.

At this point we must note that one Virginia court has answered this question on the precise set of facts at issue here: the Virginia Circuit Court for Pittsylvania County in its Order of September 3, 1985. We do not, however, hold that this Order definitively answers the state law question. To do so would, in effect, impose an exhaustion requirement on parties challenging one state’s assertion of continuing jurisdiction to modify its initial custody decree. Such an exhaustion requirement would conflict with the PKPA, which creates federal subject-matter jurisdiction to resolve the jurisdictional dispute as soon as conflicting custody decrees have issued. See DiRuggiero v. Rodgers, 743 F.2d 1009, 1015 (3d Cir.1984). Faced with inconsistent decrees, a federal court must determine the relevant state law in the ordinary fashion, and the Virginia opinion, while entitled to some deference, must be rejected if clearly mistaken.

This is, indeed, the appellant’s basic argument. She insists that the opinion in Middleton v. Middleton, 227 Va. 82, 314 S.E.2d 362 (1984), interpreting the newly-enacted Virginia version of the UCCJA, demonstrates clear error by the Virginia circuit court. Middleton involved two consolidated cases. In the more pertinent case, a husband and wife were divorced by a Virginia court three years after the wife returned to England with their two children. The divorce decree awarded custody of the children to the mother. Several years later, when the children were in Virginia visiting the father, he sought and received a modification of the custody decree granting him sole custody of the children, in large part because of his allegations about the mother’s immoral conduct in England. The Virginia Supreme Court concluded that the chancellor “abused his discretion in refusing to decide that the courts of England provided a more appropriate forum for decision of the custody issue.” 314 S.E.2d at 369.

We cannot simply conclude from Middleton that the Virginia circuit court here also abused its discretion. In Middleton, for example, Virginia was not the “home state” of the children even when the initial custody decree issued, the children had only brief and sporadic contact with the father following the divorce, the only evidence regarding the mother’s alleged immoral conduct was in England, and the father had refused to return the children in violation of his visitation agreement. 314 S.E.2d at 368-69. All of these factors influenced the Middleton decision, and none are present here.

Middleton helps, however, in defining the interplay between Virginia custody statutes. As Middleton makes explicit, the pre-UCCJA rule that a Virginia trial court enjoys continuing jurisdiction to change or modify its custody decree remains in effect. See Va.Code § 20-108; Middleton, 314 S.E.2d at 367. The court retains this modification jurisdiction even when the child no longer lives in the state. Kern v. Lindsey, 182 Va. 775, 30 S.E.2d 707 (1944). This modification jurisdiction continues so long as any one of four “grounds for jurisdiction” in the Virginia UCCJA continues, including whenever

It is in the best interests of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships

Va.Code § 20-126(A)(2) (emphasis added). Finally, a Virginia court may decline to exercise jurisdiction “if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.” Va.Code § 20-130(A). Among the factors which the court should consider before declining jurisdiction on forum non conveniens grounds are: (1) whether another state “is or recently was the child’s home state”; (2) whether another state has a “closer connection” with the child and his family; (3) whether “substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state,” and; (4) whether the parties have agreed on another appropriate forum. Va.Code § 20-130(C); Middleton, 314 S.E.2d at 367-69.

These interconnected custody jurisdiction rules establish that the Virginia circuit court had continuing jurisdiction over its initial decree under Va.Code § 20-108 and § 20-126(A)(2). As the district court observed, the father and child retained numerous “significant connections” with Virginia. The child was born in Virginia and lived there most of his life; many of his friends and relatives, including his father and his older brother still live there; he has spent significant time with his father since his mother received custody. Moreover, much of the evidence regarding the child’s “present or future care, protection, training, and personal relationships” is to be found in Virginia rather than North Carolina.

Having determined that the Virginia circuit court retains jurisdiction to modify its initial custody order, we need only decide whether it abused its discretion in refusing to find that North Carolina offered a more convenient forum under Va.Code § 20-130. We decline to do so. The kinds of factors which influenced the Virginia Supreme Court in Middleton are absent here, and the Virginia circuit court might permissibly have concluded that the continuing connection of the child to Virginia and the evidence concerning the child’s future in Virginia, coupled with the relative ease with which the mother could have presented her evidence before a Virginia court, made it unnecessary to defer to North Carolina’s jurisdiction. Certainly the Virginia circuit court might have decided otherwise. We cannot, however, find abuse in this discretionary decision without simply imposing our judgment about the forum best able to protect the interests of the child — and we refuse to take that step.

Since the Virginia circuit court properly exercised its continuing jurisdiction to modify its initial order, the PKPA requires that the courts of North Carolina refrain from also exercising modification jurisdiction and that they afford the Virginia order full faith and credit. Accordingly, we affirm.

AFFIRMED.