Indiana Law Review


Indiana Law Review
Volume 16 1983 Number 2

Due Process Rights of Absent Parents
in Interstate Custody Conflicts:

A Commentary on In re Marriage of Hudson

Helen Garfield*

Adjudications of custody necessarily involve the resolution of con-

flicts between parental rights and the best interests of children. In

interstate custody battles, the parents' rights include the due pro-

cess right to notice and the opportunity to be heard. In an era of

increasing concern for parental rights, and for the rights of nonresi-

dent defendants generally, the danger exists that protection for the

absent parent's rights may be extended at the expense of the
children's welfare. The Uniform Child Custody Jurisdiction Act
(UCCJA)1 was designed primarily for the protection of children in in-
terstate custody cases. The Act assures that a competent forum will
always be available to decide child custody and that other states will

enforce the decision, but the UCCJA does not require in personam
jurisdiction over an absent parent or minimum contacts between the
absent parent and the forum.2 Recent United States Supreme Court
cases dealing with the due process rights of nonresident defendants3

raise anew the question whether the UCCJA has struck the proper
balance between the rights of parents and the welfare of their children.

It is not an easy question, especially when considered in light of the
confusion created by an earlier Supreme Court case, May v. Anderson.4

The Supreme Court has held that divorce jurisdiction is divisible.5

Jurisdiction over the marital status, often designated as jurisdiction

Professor of Law, Indiana University School of Law— Indianapolis. B.S.J., North-
western University, 1945; J.D., University of Colorado, 1967.

x
9 U.L.A. Ill (1968). The Indiana version of the Act is Ind. Code §§ 31-1-11.6-1

to -24 (1982). Where appropriate, UCCJA sections will be cited to the Indiana version
of the Act which contains no major deviations from the text.

2
Ind. Code §§ 31-1-11.6-12, -13 commissioners' notes (1982).
^ulko v. Superior Court, 436 U.S. 84 (1978); Shaffer v. Heitner, 433 U.S. 186 (1977).
4345 U.S. 528 (1953).
5Estin v. Estin, 334 U.S. 541 (1948).

445



446 INDIANA LAW REVIEW [Vol. 16:445

in rem,6 may be acquired by substituted service, but in personam
jurisdiction over the defendant spouse is required before an alimony

order will be enforceable in other states. 7 A plurality of the Court
applied the in personam requirement to custody in May v. Anderson,8

holding that an ex parte custody decree could not be enforced against

the absent parent. Although the opinion in May is less than crystal
clear, its "only logical construction" is that due process requires in

personam jurisdiction over the absent parent.9 This interpretation is
consistent with the plurality's citation to a 1928 Indiana case holding

that a custody decree rendered without personal jurisdiction over the

absent parent was "void."10

When May was decided in 1953, it was generally true that in per-
sonam jurisdiction could be acquired only by personal service of sum-
mons within the state.11 The Wisconsin state court in May had per-
sonally served the defendant wife with summons in Ohio, but this
service did not give the Wisconsin court in personam jurisdiction over
her, because there was no applicable long arm statute. The expan-
sion of long arm jurisdiction after 1953 softened the impact of May
on custody jurisdiction, and it was during this period that the UCCJA
was drafted. In the UCCJA, the drafters virtually ignored the due
process implications of May and treated custody jurisdiction as pure-
ly in rem. They provided notice and an opportunity to be heard for
the absent parent,12 but did not require in personam jurisdiction. The

*E.g., In re Marriage of Rinderknecht, 174 Ind. App. 382, 367 N.E.2d 1128 (1977).

The United States Supreme Court has eschewed reliance on the designation of divorce

jurisdiction as in rem. See Williams v. North Carolina, 317 U.S. 287, 297 (1942) (
u
[I]t

does not aid in the solution of the problem presented by this case to label these pro-

ceedings as proceedings in rem.'").
7Estin v. Estin, 334 U.S. 541 (1948). Many years earlier, the Indiana Supreme

Court in Beard v. Beard, 21 Ind. 321 (1863), held that an ex parte Indiana judgment

for alimony could not be enforced against a nonresident. Although Beard was decided

before the fourteenth amendment was adopted, the decision's reasoning parallels modern

due process analysis, holding that the judgment, based on notice by publication, "was

not obtained by due course of law." Id. at 328.
8345 U.S. 528 (1953).
9
Clark, The Supreme Court Faces the Family, 5 Fam. Advocate 20, 22 (Summer

1982). See also Hazard, May v. Anderson: Preamble to Family Law Chaos, 45 Va. L.
Rev. 379, 384 (1959).

10May v. Anderson, 345 U.S. 528, 535 n.8 (1953) (citing Weber v. Redding, 200
Ind. 448, 455, 163 N.E. 269, 271 (1928)). The Weber decision indicates that Indiana was

committed to protection of the absent parent's rights long before May was decided
by the United States Supreme Court.

u
See, e.g., Act of Sept. 19, 1881, ch. 38, § 56, 1881 Ind. Acts 240 (repealed 1969).

Today the Indiana Code permits acquisition of in personam jurisdiction under the long

arm statute. Ind. R. Tr. P. 4.4.
12Unif. Child Custody Jurisdiction Act §§ 5, 12 & commissioners' notes (1968).

These provisions are discussed in detail infra notes 127-30, and accompanying text.



1983] CUSTODY JURISDICTION 447

drafters treated May as a full faith and credit case rather than a due
process case, stating that May permits but does not require interstate
recognition of ex parte custody decrees.

13

The due process implications of May assumed new importance,
however, when the Supreme -Court warned in 1977 that the reach of

long arm statutes had due process limits. In Shaffer v. Heitner
14 the

United States Supreme Court stated that the due process clause of

the fourteenth amendment15 requires minimum contacts for all asser-
tions of state court jurisdiction over nonresident defendants, whether

jurisdiction is labeled in rem or in personam.16 A footnote in Shaffer
recognizes an exception for "particularized rules governing adjudica-

tions of status."
17 There is little doubt that this status exception will

support the continued validity of ex parte divorces,
18 but different

considerations apply to child custody.

Shaffer's broad holding was confirmed in Kulko v. Superior Court,
19

when the Court applied the minimum contacts test to a child support
action brought in California against a father who was a resident of
New York. Because the father had only the most ephemeral contacts
with California, the Court held that California could not assert in per-

sonam jurisdiction over him.20 Shaffer, and especially Kulko, erected

a due process barrier to further expansion of long arm jurisdiction,
closing the escape hatch that such jurisdiction had afforded against

the due process implications of May.21 The Court's expressed concern
for the due process rights of nonresident defendants makes it increas-

es^ id. § 12 commissioners' notes ("[May] relates to interstate recognition rather
than in-state validity of custody decrees."). This distinction is discussed in detail, in-

fra notes 131-37 and accompanying text.
14443 U.S. 186 (1977). Although Shaffer involved quasi in rem jurisdiction, its due

process holding was far broader in scope, as subsequent decisions confirmed. See, e.g.,
Kulko v. Superior Court, 436 U.S. 84, 91-96 (1978).

15
U.S. Const, amend. XIV, § 1.

16The jurisdictional test applied in Shaffer was the minimum contacts test of In-
ternational Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (A party must "have cer-
tain minimum contacts with [the forum] such that the maintenance of the suit does
not offend 'traditional notions of fair play and substantial justice.' ").

17433 U.S. at 208 n.30.

"The Court has long recognized such decrees as effective to terminate the marital

status of the nonresident spouse despite the absence of contacts between the nonresi-

dent spouse and the forum. E.g., Williams v. North Carolina, 317 U.S. 287 (1942). But

see Comment, The Divisible Divorce Doctrine Reexamined in Light of Shaffer v. Heitner,
51 Miss. L.J. 801 (1981).

I9436 U.S. 84 (1978).
20
Id. at 101.

21Bodenheimer & Neeley-Kvarme, Jurisdiction Over Child Custody and Adoption
After Shaffer and Kulko, 12 U.C. Davis L. Rev. 229, 237 (1979) ("If we had hopes that
jurisdiction could be extended further and further by long-arm legislation, Kulko has

dashed these hopes.").



448 INDIANA LAW REVIEW [Vol. 16:445

ingly unlikely that the Court will adopt the UCCJA interpretation
of May.22 If personal jurisdiction over the absent parent is required
in custody cases, as the plurality in May indicates, there is little doubt
that minimum contacts also will be required. Indeed, Shaffer and Kulko
seem to require minimum contacts even if personal jurisdiction is not
required.

This potential conflict between the UCCJA and the due process
cases from May through Kulko reached the Indiana Court of Appeals
in In re Marriage ofHudson

23 The UCCJA gave the trial court jurisdic-
tion over the custody issue, but the nonresident father claimed that

the court had violated his due process rights when it awarded custody
to the mother without having in personam jurisdiction over him and
without minimum contacts between him and the Indiana forum. The
court of appeals avoided the minimum contacts issue by holding that
in personam jurisdiction was not required and that custody jurisdic-
tion under the UCCJA came within the "status exception" of Shaffer 24

The Hudson opinion is grounded firmly on interpretations of the
UCCJA by its drafter, Brigitte M. Bodenheimer, as reflected in the
official comments to the Act.25 The result is certainly defensible; it
makes the trial court's custody award binding on a father who had
removed two of his children to Spain. The holding, however, is not
limited to cases involving child snatching;

26
it would deny a minimum

contacts defense to any absent parent, regardless of his conduct and

regardless of the reasons for his absence. The father in Hudson had
been sent to Spain under military orders, and if no child snatching

had been involved, he would have presented a most appealing case

for protection of his due process right to a hearing on custody.27 If

that kind of case comes before the United States Supreme Court, it
is unlikely that the Court will dismiss so casually the complex due

process issues raised.
28

The Hudson court's resolution of the conflict between the UCCJA's
child-centered jurisdictional provisions and the due process rationale

™Cf. Coombs, Interstate Child Custody: Jurisdiction, Recognition, and Enforcement,

66 Minn. L. Rev. 711, 741-44 (1982).
23434 N.E.2d 107 (Ind. Ct. App. 1982), cert, denied, 51 U.S.L.W. 3611 (U.S. Feb.

22, 1983) (No. 82-793).
2i
Id. at 117. The status exception is contained in a footnote to Shaffer. See supra

note 17 and accompanying text.
25434 N.E.2d at 118. See Unif. Child Custody Jurisdiction Act §§ 12, 13 com-

missioners' notes (1968). Other courts have reached similar results. E.g., In re Mar-

riage of Leonard, 122 Cal. App. 3d 443, 175 Cal. Rptr. 903 (1981).
26There are indications in May that it was not intended to apply in child-snatching

cases. See infra note 82 and accompanying text.

"The United States Supreme Court has held that there is a due process right
to a custody hearing. Stanley v. Illinois, 405 U.S. 645 (1972).

28A petition for certiorari in Hudson was denied by the United States Supreme
Court. 51 U.S.L.W. 3611 (U.S. Feb. 22, 1983) (No. 82-793).



1983] CUSTODY JURISDICTION 449

of May and Kulko is much too easy. Hudson makes one wonder
whether a better balance might be struck among the interests of the
child, the state, and the parents. Only the United States Supreme

Court can supply the ultimate authoritative answer, but it is useful

to examine the alternatives available to the Court. First, a more

detailed examination of the problem is necessary, and a reexamina-

tion of the nature of custody jurisdiction provides a useful starting

point.

I. The Best Interests of the Res

[OJrdinarily procedural protection may be afforded to a liberty
interest of one person without derogating from the substantive

liberty of another. Here, however, such a tension is virtually

unavoidable.
29

In Hudson, the Indiana Court of Appeals, following the UCCJA,
characterized custody jurisdiction as in rem, and a custody decision

as an adjudication of status.30 In order to bring custody jurisdiction

within the status exception of Shaffer, the court treated custody as

comparable to marital status, which is the basis for in rem jurisdic-
tion in divorce.

31 There is substantial authority for treating custody

as a status proceeding,
32 but significant differences between divorce

and custody make the fit an uneasy one.

A custody determination does not permanently alter the legal rela-
tionship of parent and child as divorce alters the marital relationship.33

Custody involves a temporary allocation between the parents of rights

and duties toward the child, which leaves the essential elements of

29Smith v. Organization of Foster Families, 431 U.S. 816, 846 (1977). This state-

ment referred to the conflict between the rights of foster parents and natural parents,

but is equally appropriate in reference to the competing rights of children and those

claiming their custody.
30434 N.E.2d at 118-19.
31For a discussion of in rem jurisdiction in divorce, see Garfield, The Transitory

Divorce Action: Jurisdiction in the No-Fault Era, 58 Tex. L. Rev. 501 (1980).
32
E.g., Restatement (Second) of Conflict of Laws §§ 69-79 (1969). See

Bodenheimer & Neeley-Kvarme, supra note 21, at 240; Hazard, supra note 9, at 387
& n.30; Comment, Jurisdiction Over the Nonresident Parent in a Suit Affecting the Parent-
Child Relationship, 34 Baylor L. Rev. 107, 112 & n.39 (1982).

33
In support of the UCCJA characterization of custody as a status proceeding,

Bodenheimer and Neeley-Kvarme quote Professor Reese, who defines status as a " 'rela-
tionship between two persons, which is not temporary in its nature, is not terminable
at the mere will of either and with which the State is concerned.' " Bodenheimer &
Neeley-Kvarme, supra note 21, at 240 (quoting Reese, Marriage in American Conflict

of Laws, 26 Int'L & Comp. L.Q. 952, 953 (1977) (emphasis added)). Custody, being always
subject to modification by the courts, is temporary in nature and does not permanently

alter the relationship of parent and child in the same way marital status is altered
by divorce, or the parent-child relationship is altered by termination.



450 INDIANA LAW REVIEW [Vol. 16:445

the parent-child relationship unaltered.
34 The custodial parent is given

the lion's share of responsibility for making decisions concerning the
child's care and education. However, the allocation of rights and duties
between the parents is always subject to reconsideration and revi-
sion when circumstances change. Meanwhile, the noncustodial parent
retains substantial residual rights.

35

A custody action is primarily a dispute over possessory rights
to the child, which makes it more analogous to the alimony-property
aspects of divorce than to the adjudication of marital status. Parents

fight for possession of the child in much the same way as they would
fight over possession of property, casting the child in the role of the

res. Here the usefulness of the analogy ends, however, for a child
is a living, breathing res with rights of its own that are at least equal
and probably superior to the rights of the parents. In custody cases,

"courts are no longer concerned primarily with the proprietary claims

of the contestants for the 'res' before the court, but with the welfare

of the 'res' itself."
36

In determining whether custody jurisdiction will

fit into the analytical framework developed in connection with disputes

over property, care must be taken to protect the interests of the res
while doing the least possible damage to the analytical framework,
particularly the constitutional framework protecting the due process
rights of litigants. It would be surprising if this were an easy task.

A useful illustration of both the similarities and the differences
between the law's treatment of children and property may be found
in proceedings to terminate parental rights. Such proceedings, unlike

custody actions, do permanently alter the parent-child relationship,

and therefore fit much more easily into the "status" mold than custody
does. Nevertheless, termination proceedings are also analogous in some

respects to property actions. For example, the chief ground for ter-

34Rights of inheritance between parent and child, for example, are completely

unaffected, and the parent's duty to support the child is affected only to the extent

that the court may reduce the noncustodial parent's obligation to a finite sum. Duties
of care, education, and nurture toward the child are only temporarily altered. See Annot.,

9 A.L.R.2d 434, 440 (1950).

Although custody disputes sometimes do involve custodians other than parents,

this Article is concerned with parental rights, and therefore is limited to the most

common form of custody dispute, that between two parents.
35See infra note 41 and accompanying text. Parents contending for custody are

apt to perceive it as an all-or-nothing proposition, and it may work out that way in

practice, especially if the noncustodial parent's opportunities for participation in rais-

ing the child are limited, but this possibility is a function of how the parents interact

rather than an essential attribute of their legal relations toward the child. But see

Hazard, supra note 9, at 388-89.
36May v. Anderson, 345 U.S. 528, 541 (1953) (Jackson, J., dissenting). See also

Bodenheimer & Neeley-Kvarme, supra note 21, at 233 ("The child is not technically
a party, but the interests of the child are the major issue.").



1983] CUSTODY JURISDICTION 451

mination of parental rights is abandonment,37 and the same ground
exists for termination of interests in property. The difference is that
the period of abandonment is much shorter for children than for prop-
erty, reflecting the greater need of children for care and cultivation.

Herein lies the principal difference between an owner's rights in prop-

erty and a parent's rights in his children. A parent's relationship to
his child encompasses not only rights but duties, including duties of

support, education, and nurture. Indeed, a parent's duties and respon-

sibilities toward his child weigh more heavily than his rights in the
child, though it is otherwise with property. As a result, a parent re-
tains his right to custody of the child only so long as he fulfills his

duties and responsibilities toward the child. Parental rights are im-

portant and constitutionally protected,38 but they are also exceedingly

fragile.

While the family remains intact, both parents have equal claim

to custody of their children.39 When the family breaks apart, however,
a court must decide how the parents' rights and duties are to be ap-
portioned. Equal partition of a child is seldom possible.40 The tradi-
tional disposition of custody to one parent, with visitation rights to

the other, is an unequal division of parental rights and responsibilities.

The custodial parent retains the bulk of rights and responsibilities,
and the noncustodial parent retains residual rights and duties.41 Under
modern divorce statutes, the duties of support usually are equitably
apportioned between the parents.42 The court determines which parent

37Bodenheimer & Neeley-Kvarme, supra note 21, at 241.
38The Supreme Court has recognized a substantive due process right of parents

in their children. See, e.g., Caban v. Mohammed, 441 U.S. 380 (1979); Bell, Termination
of Parental Rights: Recent Judicial and Legislative Trends, 30 Emory L.J. 1065, 1084
(1981) ("The Court has firmly established that a parent has a constitutionally protected

liberty interest in retaining custody of his or her child."). See also Santosky v. Kramer,

102 S. Ct. 1388 (1982) (due process requires that before a parent's rights may be com-
pletely severed, the state must support its allegations by "clear and convincing
evidence").

39
It was not always this way. Early common law gave the father absolute right

to custody, while more recently the mother has received a preference. See infra note 70.
40
Joint custody would be analogous to both joint owners retaining their interest

in the "property," rather than dividing it, or selling it and dividing the proceeds. As
a form of property disposition, joint ownership is seldom workable because it retains

the divorced spouses in what is essentially a partnership situation. The same kind
of problem often exists with joint custody. See, e.g,, Dodd v. Dodd, 93 Misc. 2d 641,
403 N.Y.S.2d 401 (Sup. Ct. 1978). The traditional custody disposition "seems to be the
only workable model for the great majority of ordinary mortals." Bodenheimer, Equal

Rights Visitation and the Right to Move, 1 Fam. Advocate, Summer 1978, at 19, 19.
"Residual rights include the right to visitation and the right to regain full custody

should future changes occur. E.g., Ind. Code § 31-1-1 1.524(a) (1982); In re Guardian-
ship of Phillips, 383 N.E.2d 1056, 1059 (Ind. Ct. App. 1979).

"Today's statutes no longer place the primary duty of support on the father.

E.g., Ind. Code § 31-1-11.5-12 (1982). It is doubtful that a statute placing the duty of



452 INDIANA LAW REVIEW [Vol. 16:445

receives custody based upon the best interests of the child.
43 Again

it is concern for the welfare of the res that distinguishes rights in

children from rights in property. The divorcing parents' custody rights

essentially amount to a right to a hearing on custody.

In May v. Anderson 44 the Supreme Court seemed to treat the
parents' rights as totally analogous to rights in property. The much
criticized plurality opinion extended protection to parents' rights

without adequately examining the nature of those rights45 and without

considering the children's interests. These deficiencies, combined with

the peculiar procedural context in which May arose, created a confu-
sion which has persisted to the present day.

II. Due Process— From Divisible Divorce to.
Minimum Contacts

A. May v. Anderson

If May v. Anderson46 was indeed a due process case, it simply ex-
tended the concept of divisible divorce from alimony to custody.

However, the extension was not nearly as easy as the plurality opinion

suggests. The Supreme Court established the concept of divisible
divorce in Estin v. Estin,47 by recognizing separate bases for jurisdic-
tion over marital status and over alimony in interstate divorce cases.48

The Court held in Estin that a Nevada court's jurisdiction over the
marital status, based on the husband's domicile in Nevada, entitled

the court's ex parte divorce decree to full faith and credit in other

states,
49
but that the court needed in personam jurisdiction over the

wife before it could affect her right to alimony under a preexisting
New York separate maintenance decree.50

support solely on the father would be constitutional under Orr v. Orr, 440 U.S. 268

(1979) (invalidating a state statute allowing alimony awards only to divorced wives).

Even under earlier law, de facto apportionment of support duties occurred in the many

cases in which the support payments were not adequate to meet the child's total needs,

as well as the cases in which support could not be collected.
i3
E.g., Ind. Code § 31-1-11.5-21 (1982).

44345 U.S. 528, 533-34 (1953).
45Later Supreme Court cases have been concerned primarily with parents' rights

to a hearing on custody, e.g., Stanley v. Illinois, 405 U.S. 645 (1972), and thus more

accurately reflect the transient nature of parental rights.
46345 U.S. 528 (1953) (plurality opinion).
47334 U.S. 541 (1948).
48
7d. at 549. The wife in Estin had been granted separate maintenance by a New

York court. Later, the husband moved to Nevada and obtained an ex parte divorce.

The Nevada decree did not mention alimony, and the husband claimed that he no longer

had to make payments under the New York decree.
i9
Id. at 543-44 (citing Williams v. North Carolina, 317 U.S. 287 (1942)).

50334 U.S. at 548-49. Despite its emphasis on in personam jurisdiction, Justice



1983] CUSTODY JURISDICTION 453

When the May plurality extended the requirement of in personam
jurisdiction to custody, because it concerns "[rjights far more precious

. . . than property rights," 51 the Court failed to note that the jurisdic-

tional bases for custody never had been the same as for alimony. The
plurality merely cited the first Restatement of Conflicts, which listed

the child's domicile as the sole basis for custody jurisdiction.
52

If the

Restatement had been accurate, then custody jurisdiction based on

domicile would have been more akin to divorce jurisdiction than to
alimony, but domicile never was the exclusive basis for custody
jurisdiction. Historically, equity courts have asserted the power to

act for the protection of children within their territorial jurisdiction,

regardless of the child's domicile.53 At the time May was decided, state
courts also recognized custody jurisdiction based upon personal

jurisdiction over both parents. Thus, three distinct bases of custody

jurisdiction existed,
54

reflecting the complex and conflicting interests

involved.

No single jurisdictional basis can or should qualify as the exclusive
basis for custody jurisdiction. The child's domicile is often merely a
legal fiction, and there will always be cases in which personal jurisdic-

tion over both parents cannot be obtained. Using the presence of the

child as the sole basis for custody jurisdiction would only encourage

child snatching by parents.55 Custody jurisdiction has elements in com-

mon with both divorce and alimony jurisdiction. Above all, custody
jurisdiction requires flexibility. A forum must always be available to
determine or modify custody when the child's needs require it. The

Douglas' opinion for the Court did not explicitly rest on the due process clause. The
immediate question before the Court concerned full faith and credit rather than due
process. A later case, Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957), was more explicit
in its due process rationale. See, e.g., Hudson v. Hudson, 52 Cal. 2d 735, 740, 344 P.2d
295, 297 (1959) (Traynor, J.); Garfield, supra note 31, at 511.

51345 U.S. at 533.
52
Id. at 534 n.7 (citing Restatement (First) of Conflict of Laws §§ 32, 146 il-

lustrations 1, 2 (1934)) (defining the domicile of a child whose parents have separated
as that of the parent with whom it lives). Thus, the child's domicile also would be,
by definition, the domicile of at least one of the parents, making custody jurisdiction
coextensive with divorce jurisdiction.

Justice Jackson's dissent also accepted the Restatements characterization of
domicile as the sole basis for custody jurisdiction. 345 U.S. at 538-39.

53Such jurisdiction existed in England as early as the seventeenth century and
was recognized from the earliest times in the United States. H. Clark, The Law of
Domestic Relations in the United States § 17.1, at 572 (1968). See also Finlay v.
Finlay, 240 N.Y. 429, 148 N.E. 624 (1925) (Cardozo, J.).

54Sampsell v. Superior Court, 32 Cal. 2d 763, 197 P.2d 739 (1948) (Traynor, J.).
These bases of jurisdiction have now been supplanted in most states by the UCCJA.
See infra notes 114-20 and accompanying text.

55
It was primarily the problem of child snatching which led to the promulgation

and adoption of the UCCJA. See infra notes 112-13 and accompanying text.



454 INDIANA LAW REVIEW [Vol. 16:445

child's helplessness places a heavy responsibility on the state to pro-

vide a forum for settling custody disputes regardless of jurisdictional

niceties.
56

The need for flexibility in custody jurisdiction is reflected in the
way the full faith and credit clause57 has been applied. Ex parte
divorces rendered by the state of a spouse's domicile are entitled to
full faith and credit,58 but the lack of finality that characterizes custody

decrees59 has enabled the Court to avoid the full faith and credit ques-

tion in cases arising both before and after May. For example, in a
case prior to May, New York ex rel. Halvey v. Halvey,60 New York
modified an ex parte Florida custody order and granted visitation

rights to the father.
61 The United States Supreme Court affirmed,

holding that the Florida decree, which was subject to modification
in Florida, was entitled to no greater effect in New York than it had
in Florida.

62 New York had "at least as much leeway to disregard the
judgment, to qualify it, or to depart from it" as Florida did.63 By us-
ing Florida standards to modify the decree, New York gave the Florida
decree all the full faith and credit to which it was entitled.64 It was
therefore unnecessary for the Court to decide "whether in absence

of personal service the Florida decree of custody had any binding ef-
fect on the husband."65 Because of the procedural context in which

m
See Sampsell v. Superior Court, 32 Cal. 2d 763, 777, 197 P.2d 739, 749 (1948)

("Unfortunately, cases will arise where one or two elements [of jurisdiction] are lack-
ing, and some court must have jurisdiction in the interest of the child to make proper
provision for its custody."). The UCCJA retains multiple bases for jurisdiction, although
they are not the ones that prevailed when May was decided. See infra notes 114-20
and accompanying text.

57
U.S. Const, art. IV, § 1.

58Williams v. North Carolina, 317 U.S. 287 (1942). The Court has been inconsis-
tent at times in allowing full faith and credit for divorce decrees. However, this incon-
sistency is beyond the scope of this Article. See Garfield, supra note 31.

59
In this respect, custody decrees more closely resemble orders for alimony and

child support, which are entitled to full faith and credit only with respect to accrued

arrears no longer subject to modification. Sistare v. Sistare, 218 U.S. 1 (1910).
60330 U.S. 610 (1947).
61The New York court also required the mother to post a $5,000 surety bond

to guarantee that the child would be made available for visitation with the father.
Id. at 612.

62330 U.S. at 615-16.
63
Id. at 615.

64
Full faith and credit, then as now, meant giving a judgment the same effect

as it had in the state where it was rendered. The original federal statute implement-
ing the full faith and credit clause, U.S. Const, art. IV, § 1, required that state court

judgments "have such faith and credit given to them in every court within the United
States, as they have by law or usage in the courts of the state from whence the said
records are or shall be taken." Act of May 26, 1790, ch. 11, 1 Stat. 122 (current ver-
sion at 28 U.S.C. § 1738 (1976)). Subsequent amendments to this statute have not altered
the substance of the congressional definition of full faith and credit.

65330 U.S. at 615.



1983] CUSTODY JURISDICTION 455

May arose, the Court did have to answer that question, and the answer
was "no."

The question in May was whether the state of Ohio "must give
full faith and credit to a Wisconsin decree awarding custody of the

children to their father when that decree [was] obtained by the father
in an ex parte divorce action in a Wisconsin court which had no per-

sonal jurisdiction over the mother."
66 The father had brought a habeas

corpus action in Ohio to enforce the Wisconsin custody decree after

the mother refused to return the children to him following visitation

in Ohio. In Ohio, habeas corpus was a legal, rather than an equitable
remedy; therefore, a court did not have the power either to deter-
mine or to modify custody. The Ohio court could decide only the "im-
mediate right to possession of the children."67 The father could prevail
only by showing that he had a right to custody superior to the

mother's, that is, by establishing the interstate validity of the Wiscon-

sin custody order. Thus the issue of interstate recognition of custody
decrees came to the court "[separated . . . from that of the future
interests of the children."

68 The May opinion has been severely criti-
cized for this separation of the jurisdictional and substantive issues,69

but it was not the plurality that effected the separation. It was the
law of Ohio.

Because of the limited nature of the Ohio habeas corpus action,

neither the Ohio courts nor the Supreme Court could consider the
merits of the custody issue. They could decide only whether the father
was entitled to summary enforcement of the ex parte Wisconsin order.
When the May plurality opinion is assessed in light of the procedural
context in which the case arose, and when account also is taken of
the evanescent nature of parental rights, its impact is considerably

softened. Viewed in this light, the May decision does not hold that
the mother retained full custody rights to her children, or that her
rights were somehow superior to the father's, although that may well
have been the plurality's unstated assumption.70 The effect of May

66
345 U.S. at 528-29.

"Id. at 532.
6S
Id. at 533.

*9
E.g., H. Clark, supra note 53, at 324 n.36; Bodenheimer & Neeley-Kvarme,

supra note 21, at 249 & n.118; Hazard, supra note 9, at 388 n.33.
10
Cf. Foster & Freed, Child Snatching and Custodial Fights: The Case for the Uniform

Child Custody Jurisdiction Act, 28 Hastings L.J. 1011, 1022 (1977) (suggesting that
May would have been decided differently had the absent parent been the father rather
than the mother). At the time May was decided, most states recognized the tender
years presumption, the strongest version of which would grant custody of young children
to the mother unless she were proven unfit. If the plurality assumed this to be the
applicable rule, then the mother, in effect, would have a substantive right to custody
(the right "far more precious than property rights") which could not be taken away
without a hearing proving unfitness. The father, however, would have only the right



456 INDIANA LAW REVIEW [Vol. 16:445

is merely to hold that the parents' rights were equal. The father's
action failed because he was unable to prove that he had a right to
custody superior to the mother's right. Because the marriage had been

validly dissolved, neither parent had full custody rights. The parents
had only the right to have a court apportion their parental rights

and duties between them; each parent had a right to a hearing on
custody.

71 Although a hearing had been held, only the father's point

of view had been presented because Wisconsin lacked personal jurisdic-

tion over the mother. Therefore, the Supreme Court held in May that
enforcement of the ex parte custody decree would violate the mother's

due process rights.72 This holding left the divorced parents in status

quo, both equally entitled to custody, until a hearing could be held

on the merits with both parents before the court.73

Unfortunately, none of the several opinions in May dealt adequate-
ly with the nature of the parents' rights, nor with the immediate con-
sequences of the decision.74 Justice Frankfurter concurred on the

to a hearing at which he could attempt to prove the mother's unfitness. The mother

would thus have a prima facie right to custody superior to the father's right to a hearing.

The tender years presumption has been repealed by statute in Indiana. Ind. Code

§ 31-l-11.5-21(a) (1982). Even in those states where it persists, it usually is a weak
presumption of fact, which would not have the effect of granting either parent a substan-

tive quasi-property right to custody. But see Gordon v. Gordon, 577 P.2d 1271 (Okla.

1978). Even this watered-down version may be unconstitutional under the Supreme
Court's recent sex discrimination decisions. E.g., Orr v. Orr, 440 U.S. 268 (1979) (holding

that alimony only to wives violates equal protection clause). It is thus abundantly clear

that under modern custody law, neither parent has anything more than a right to
a hearing on custody. The interpretation of May in the text is based on this assumption.

nSee supra notes 40-45 and accompanying text. In later parental rights cases,

the issue has been defined more clearly in terms of the parent's right to a hearing

on custody. See, e.g., Stanley v. Illinois, 405 U.S. 645 (1972) (unwed father's right to

a hearing on custody). Viewing May as a right-to-hearing case makes it more consis-
tent with Stanley and requires rejection of Professor Clark's suggestion that Stanley

may have overruled May sub silentio. See H. Clark, Domestic Relations Cases and
Problems 1037 n.5 (3d ed. 1980). See also Coombs, Interstate Child Custody: Jurisdic-

tion, Recognition and Enforcement, 66 Minn. L. Rev. 711, 742 n.178 (1982); Sherman,

Child Custody Jurisdiction and the Parental Kidnapping Prevention Act—A Due Pro-
cess Dilemma?, 17 Tulsa L.J. 713, 719-21 (1982).

72345 U.S. at 533-34 (plurality opinion).
73The Ohio hearing would not be a modification hearing, in which the burden

would be on the mother to prove a substantial change in circumstances, but would

be an original custody hearing in which the court would determine custody based on

the best interests of the children. See infra notes 205-06 and accompanying text. Modern
long arm statutes would make it more likely that the father could have secured such
a hearing in Wisconsin.

74
Justice Jackson's dissent projected an impasse: "The Wisconsin courts cannot

bind the mother, and the Ohio courts cannot bind the father." 345 U.S. at 539 (Jackson,

J., dissenting). In fact, the father could have sought a hearing on the merits in Ohio,

in a proceeding other than habeas corpus. There would be no problem obtaining per-

sonal jurisdiction over the mother and both parties would be bound.



1983] CUSTODY JURISDICTION 457

assumption that May was a full faith and credit case rather than a
due process case. In his view, May held only that the full faith and
credit clause did not require Ohio to recognize the ex parte Wisconsin

custody decree, but that Ohio could recognize the Wisconsin decree

without violating the mother's due process rights.75 This "interpreta-

tion" of the plurality opinion is impossible to reconcile with the plural-

ity's reference to the necessity for personal jurisdiction over the

mother before she could be deprived of "[r]ights far more precious
. . . than property rights."76

Justice Jackson dissented from the plurality opinion precisely

because he thought it was a due process opinion and therefore pro-
hibited Ohio from recognizing the Wisconsin custody decree.77 The only
valid reason for denying full faith and credit to the decree would be

the violation of the mother's due process rights. The dissent dismissed
Justice Frankfurter's concurrence as "reducing] the law of custody

to a rule of seize-and-run."
78

Justice Jackson would have treated the

75345 U.S. at 535-36. Justice Frankfurter came very close to saying that full faith

and credit has no application at all in custody cases. "[T]he child's welfare in a custody

case has such a claim upon the State that its responsibility is obviously not to be

foreclosed by a prior adjudication reflecting another State's discharge of its respon-

sibility at another time." Id. at 536. He was even more explicit in denying full faith
and credit to custody decrees in Kovacs v. Brewer, 356 U.S. 604, 611-16 (1958)

(Frankfurter, J., dissenting). It is ironic that the UCCJA, whose goal is to strengthen
interstate recognition of custody decrees, should have adopted Justice Frankfurter's

interpretation of May. See Unif. Child Custody Jurisdiction Act §§ 12, 13 commis-
sioners' notes (1968).

76345 U.S. at 533-34 (plurality opinion). The plurality's reliance on the due process
rationale of Estin seems clear in this passage:

In Estin v. Estin ... we held Nevada powerless to cut off ... a spouse's
right to financial support under the prior decree of another state. In the

instant case, we recognize that a mother's right to custody of her children
is a personal right entitled to at least as much protection as her right to
alimony.

. . . We find it unnecessary to determine the children's legal domicile [for
purposes of establishing custody jurisdiction in Wisconsin] because, even if it

be with their father, that does not give Wisconsin . . . the personal jurisdic-

tion that it must have in order to deprive their mother of her personal right

to their immediate possession.

Id. at 533-34 (emphasis added) (citations and footnotes omitted). See also Sherman,

supra note 71, at 716 ("Justice Frankfurter's explanation is plainly at odds with the

opinion in which he joined.").
77345 U.S. at 536-37 (Jackson, J., dissenting). Justice Reed joined Justice Jackson's

dissent and Justice Minton filed a separate dissent, arguing that the Ohio court properly

accorded the decree full faith and credit. Id. at 542-43 (Minton, J., dissenting). Justice

Clark did not participate, leaving the Court without a clear majority.

™Id. at 542 (Jackson, J., dissenting). See also Ratner, Child Custody in a Federal

System, 62 Mich. L. Rev. 795, 811 (1964) ("the Frankfurter position invites removal

of the child by a leave-taking parent").



458 INDIANA LAW REVIEW [Vol. 16:445

custody decree much the same as a divorce decree, granting it sum-
mary enforcement simply because it was rendered by the state of
the children's domicile,79 "until [the Wisconsin court] or some other
court with equal or better claims to jurisdiction shall modify it."80 This

position accords full faith and credit to the Wisconsin decree only

because the Ohio habeas corpus procedure did not permit its modifica-

tion. In most other cases, the dissent would allow virtually unlimited
modification of custody decrees; it thus affords little more finality or
stability to such decrees than the other opinions do, leaving the law

substantially as it was in Halvey.*1

In May, as in Halvey, the Court failed to consider the effect its
full faith and credit rulings would have on interstate custody disputes.

The plurality noted that the facts in May did not involve a parent
who had left the jurisdiction to avoid process, or who had "unlawfully
or surreptitiously" taken the children from the other parent.82 These

decisions, however, unquestionably encouraged parents to do both.83

The parent who took the children from the state of marital residence,
surreptitiously or not, could avoid the home state's determination of
custody and relitigate custody in another jurisdiction, where the
absconding parent might well expect to enjoy a home court advantage.

The fact is, however, that the Supreme Court had no good alter-
natives in May. Given the all-or-nothing nature of the Ohio habeas
corpus proceeding, the Court had only two choices: it could either
require that all states give full faith and credit to all ex parte custody

decrees, or that no state need give full faith and credit to such decrees.

It probably chose the better alternative. Automatic enforcement of

ex parte decrees would have introduced an element of rigidity into

an area where flexibility always has been considered necessary to pro-
tect the interests of children. The child's interests usually are best
served by having both parents present at the custody hearing. A deci-
sion mandating full faith and credit for all ex parte decrees would

make it less likely that such bilateral hearings would occur.
The Court's dilemma in May suggests that the complex problems

of interstate custody jurisdiction simply are not susceptible to solu-

79
"If ever domicile of the children plus that of one spouse is sufficient to support

a custody decree binding all interested parties, it should be in this case." 345 U.S.

at 538 (Jackson, J., dissenting).

"Id. at 542.
slSee supra notes 60-65 and accompanying text.
82345 U.S. at 534 n.8. This statement suggests that the May holding would not

apply at all in a child-snatching case.
&lMay encourages a potential custody defendant to flee or never to enter a jurisdic-

tion in which he fears an adverse custody decision." Comment, The Jurisdiction of
Texas Courts in Interstate Child Custody Disputes: A Functional Approach, 54 Tex. L.
Rev. 1008, 1014 (1976).



1983] CUSTODY JURISDICTION 459

tion by constitutional fiat. Only legislation could redefine the bases

of custody jurisdiction and prescribe their effects, and ultimately the

UCCJA84 and the Parental Kidnapping Prevention Act85 did perform
this function. These statutes developed child-centered bases of jurisdic-

tion which may conflict with the Supreme Court's recent due
process/minimum contacts decisions.

B. Kulko v. Superior Court

The May plurality's requirement of in personam jurisdiction over
the absent parent took on renewed significance when the Supreme
Court restricted the expansion of long arm jurisdiction in Shaffer v.
Heitner™ and Kulko v. Superior Court.81 In Kulko, the Court concluded

that the state courts had "failed to heed our admonition that the 'flex-

ible standard of International Shoe' does not 'heral[d] the eventual

demise of all restrictions on the personal jurisdiction of state courts.'
"88

Kulko is particularly significant because it involved in personam
jurisdiction in a domestic relations setting, although jurisdiction over

child support rather than custody was at issue.
The parents in Kulko were domiciled in New York throughout

a thirteen-year marriage. When they separated, the wife moved to
California and later remarried. The separation agreement, negotiated
and signed in New York, gave the father custody of the two children
during the school year and gave the mother custody during vacation
periods.

89 The father agreed to pay support for the children while they
were with the mother. A Haitian divorce decree, obtained by the
mother, incorporated the terms of the agreement. Fifteen months
later,

90 the daughter, with her father's consent, began living with the

mother in California during the school year and with the father during

vacations. The son joined his sister two years later, without the
father's prior consent.

The mother sued the father in a California state court, seeking
a modification of the Haitian divorce decree to award her full custody
of the children and to increase child support.91 Personal jurisdiction

m
Unif. Child Custody Jurisdiction Act §§ 1-28 (1968).

85
28 U.S.C. § 1738A (Supp. V 1981).
^33 U.S. 186 (1977). See supra notes 14-18 and accompanying text.
87436 U.S. 84 (1978).
m
Id. at 101 (quoting Hanson v. Denckla, 357 U.S. 235, 251 (1958)). For the stan-

dard referred to in the quotation, see International Shoe Co. v. Washington, 326 U.S.

310, 316 (1945).
89The children were to spend "Christmas, Easter, and summer vacations with

their mother." 436 U.S. at 87.

TThe parties signed the agreement in September 1972 and complied with it as
written until December 1973. Id.

91To effect modification of the foreign decree, the mother "sought to establish
the Haitian decree as a California judgment." Id. at 88. This procedure, allowing modifica-



460 INDIANA LAW REVIEW [Vol. 16:445

over the father was based on California's long arm statute which per-
mitted jurisdiction to be exercised over nonresidents "on any basis

not inconsistent with the Constitution of this state or of the United

States,"
92 making the California courts' jurisdiction coextensive with

due process. The California courts rejected the father's due process
attack, reasoning that the father had "caused an effect" in California

when he consented to his daughter's living there.93 The United States
Supreme Court disagreed and, carrying out the promise of Shaffer
v. Heitner 94 held that all assertions of state court jurisdiction over

nonresidents would henceforth be subject to the minimum contacts
test of International Shoe Co. v. Washington.95

In the Court's view, the fatal flaw in the California courts' reason-

ing was their failure to require some purposeful act by the defendant.96

"A father who agrees, in the interests of family harmony and his
children's preferences, to allow them to spend more time in Califor-
nia than was required under a separation agreement can hardly be
said to have 'purposefully availed himself of the 'benefits and protec-

tions' of California's laws."
97 The causing an effect rationale could prop-

erly be applied to wrongful activity causing injury within the state,

or to commercial activity affecting state residents, but not to actions

arising from defendant's "personal, domestic relations."98 This state-

ment has led many commentators to conclude that the Court is re-
quiring a higher standard of minimum contacts for domestic relations

tion of foreign decrees based on comity, was established in Worthley v. Worthley,
44 Cal. 2d 465, 283 P.2d 19 (1955) (Traynor, J.). It has been widely followed in other
states. E.g., Kniffen v. Courtney, 148 Ind. App. 358, 266 N.E.2d 72 (1971).

92436 U.S. at 89 n.3 (quoting Cal. Civ. Proc. Code § 410.10 (West 1973)).
93436 U.S. at 88-89. The California Supreme Court held that the exercise of per-

sonal jurisdiction over the father was "reasonable" here because he had "purposely
availed himself of the benefits and protections of the laws of California" by sending
his daughter to live there. Id. at 89 (quoting Kulko v. Superior Court, 19 Cal. 3d 514,
521-22, 564 P.2d 353, 356, 358 (1977)).

94433 U.S. at 212.
95326 U.S. 310 (1945). Shaffer involved quasi in rem rather than in personam

jurisdiction.

M436 U.S. 84, 94 (1977) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)) ("[I]t
is essential in each case that there be some act by which the defendant purposefully
avails [himjself of the privilege of conducting activities within the forum State.") (em-
phasis added).

"436 U.S. at 94 (citing Shaffer v. Heitner, 433 U.S. 186, 216 (1977)). The Court
also rejected California's argument that the father derived financial benefit from his
daughter's longer presence in California, noting that the wife could have sought in-
creased support at any time after the daughter first moved to California. "Any ultimate
financial advantage to appellant thus results not from the child's presence in California,

but from appellee's failure earlier to seek an increase in payments under the separation
agreement." 436 U.S. at 95.

9
*Id. at 96-97.



1983] CUSTODY JURISDICTION 461

cases than for ordinary commercial transactions." This conclusion, if
correct, would have disastrous consequences in conjunction with a re-
quirement of personal jurisdiction in custody disputes.100 Unless it can
be shown that a different standard, rather than a higher one, is all
that is required in domestic cases, any reaffirmation of the due pro-
cess implications of May may well prove fatal to the UCCJA.

Fortunately, the Kulko opinion raised some points which are
helpful in distinguishing custody from support cases. The Supreme
Court referred to the "unquestionably important" interest of the state

"in protecting the welfare of its minor residents and in promoting

to the fullest extent possible a healthy and supportive family environ-

ment in which the children of the State are to be raised." 101 In rejecting

this state interest as sufficient justification for imposing in personam
jurisdiction on the nonresident father, the Court noted that Califor-

nia had not indicated any "particularized interest" in trying child sup-

port cases, by "enacting a special jurisdictional statute."102 In the area

of custody, the UCCJA would seem to qualify as a "special jurisdic-
tional statute." The Court in Kulko also pointed out that the Revised
Uniform Reciprocal Enforcement of Support Act (RURESA), which
provides procedures for interstate enforcement of support,103 already

served California's interest in aiding collection of child support. Thus,

the mother would not be left without a remedy if California could
not obtain personal jurisdiction over the father.104 This reasoning would

not necessarily be applicable in custody jurisdiction cases, where no
alternative remedies comparable to RURESA exist.105

"See, e.g., H. Clark, supra note 71, at 861 n.4; Bodenheimer & Neeley-Kvarme,
supra note 21, at 231, 237-38.

100
See infra notes 181-97 and accompanying text.

101436 U.S. at 98.
102
Id.

103RURESA, 9A U.L.A. 643 (1982).
104
436 U.S. at 98-100 & n.15. One may be tempted to quarrel with the Court's

assumptions concerning the efficacy of the RURESA remedy. See, e.g., Fox The Uniform
Reciprocal Enforcement of Support Act, 4 Fam. L. Rep. (BNA) 4017, 4021 (1978) ("er-
ratic prosecution of RURESA petitions"). But any criticism of RURESA falling short
of demonstrating its total ineffectiveness would not seem sufficient to refute the Court's
position. But see Coombs, supra note 22, at 759-62.

105There are provisions in the UCCJA designed to minimize the disadvantages
to the absent parent of out-of-state litigation, including provisions for travel expenses,
out-of-state hearings, and depositions. See Ind. Code §§ 31-1-11.6-8, -11, -15, -18 to -20
(1982). See also Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative
Remedy for Children Caught in the Conflict of Laws, 22 Vand. L. Rev. 1207, 1234-35
(1969). These provisions are not as extensive, however, as the two-state proceedings
set up under RURESA. See Ind. Code §§ 31-2-1-1 to -39 (1982). In any case, these pro-
visions appear in the UCCJA itself, rather than in an alternative remedy, so the Kulko
reasoning would not apply to a custody action brought under the UCCJA.



462 INDIANA LAW REVIEW [Vol. 16:445

Because almost all states have adopted the UCCJA,106 and its
standards have been substantially incorporated into the federal Paren-

tal Kidnapping Prevention Act,107 the UCCJA now represents a nearly
universal standard for determining custody jurisdiction. If personal

jurisdiction is required in custody cases, inevitably instances will arise

in which the state qualifying for custody jurisdiction under the UCCJA
cannot acquire personal jurisdiction over the nonresident parent. In

such cases, the custody action will have to be brought in the state

where the parent can be served, but that state may not qualify for
custody jurisdiction under the UCCJA standards.108 To allow that state
to assume jurisdiction would nullify the intent of the UCCJA provi-
sions requiring custody hearings to be conducted in the state with

the closest connection to the child.
109 Requiring personal jurisdiction

in all cases would sacrifice the interests of the child to the conve-

nience of the parents, a result no one would favor. The Hudson court
sought to avoid this dilemma by ignoring May and sidestepping Kulko.
Before evaluating this resolution of the problem, a closer examina-

tion of the UCCJA jurisdictional standards is appropriate.

III. Custody Jurisdiction Under The UCCJA

May can be justly criticized for deciding an issue vital to the
welfare of children without adequate discussion of either the underly-

ing policy considerations or the consequences. It may be that these
questions were not adequately brought to the Court's attention.110 It
would be impossible today, however, for the Court to ignore the policy

considerations which led to the adoption of the UCCJA.
The purposes of the UCCJA are spelled out in some detail in the

Act itself, as well as in the prefatory notes.111 The drafter of the Act,
the late Brigitte M. Bodenheimer, summarized the conditions that
prompted adoption of the UCCJA:

It will be recalled that for a long time child snatching prior

to or after a custody decree was quasi-accepted behavior,

106As of late 1982, 48 states had adopted the UCCJA. 8 Fam. L. Rep. (BNA) 2623
(1982).

10728 U.S.C. § 1738A (Supp. V 1981). The differences between the federal stan-
dards and those of the UCCJA are beyond the scope of this Article. See R. Crouch,
Interstate Custody Litigation: A Guide to Use and Court Interpretation of the
Uniform Child Custody Jurisdiction Act 91 (1981); Coombs, supra note 22, at 850-54;

Foster, Child Custody Jurisdiction: UCCJA and PKPA, 27 N.Y.L. Sch. L. Rev. 297,
299-312 (1981).

108
See infra notes 114-20 and accompanying text. Jurisdiction usually attaches in

the state where the child has lived for the past six months or where the child has

a significant connection. Neither condition might be met in the state where personal

jurisdiction is obtainable over the parent.
mSee infra notes 111-21 and accompanying text.
u0Hazard, supra note 9, at 382.
ni
See Unif. Child Custody Jurisdiction Act (1968).



1983] CUSTODY JURISDICTION 463

somewhere in a no man's land of the law. Legal rules played
into the hands of persons engaged in such practices. Child
custody could be awarded or modified in any state where the
child was physically present, whether or not another state's
custody decree had been violated or proceedings were pending
or ready to be commenced in the child's home state. Existing
custody determinations could be reopened elsewhere and reliti-

gated on the merits, and the child's "best interests" were often
assessed differently by a judge in the new state. This state
of the law not only encouraged kidnapping and the retention
of children after out-of-state visits; it also led to jurisdictional

competition between several states, keeping the lives of many
children in constant turmoil.112

The UCCJA was adopted to "remedy this intolerable state of affairs"
and to "bring about a fair measure of interstate stability in custody
awards."113

112Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdic-

tion under the UCCJA, 14 Fam. L.Q. 203, 203-04 (1981). This article was the last of
many that Bodenheimer wrote on the UCCJA.

The Act's own detailed statement of purpose, Ind. Code § 31-l-11.6-l(a) (1982), is

as follows:

Sec. 1. Purposes and Construction of Law. (a) The general purposes

of this law are to:

(1) avoid jurisdictional competition and conflict with courts of other

states in matters of child custody which have in the past resulted in

the shifting of children from state to state with harmful effects on

their well-being;

(2) promote cooperation with the courts of other states to the end

that a custody decree is rendered in that state which can best decide

the case in the interest of the child;

(3) assure that litigation concerning the custody of a child take

place ordinarily in the state with which the child and his family have

the closest connection and where significant evidence concerning

his care, protection, training, and personal relationships is most

readily available, and that the courts of this state decline the exer-

cise of jurisdiction when the child and his family have a closer
connection with another state;

(4) discourage continuing controversies over child custody in the

interest of greater stability of home environment and of secure
family relationships for the child;

(5) deter abductions and other unilateral removals of children

undertaken to obtain custody awards;

(6) avoid re-litigation of custody decisions of other states in this

state insofar as feasible;

(7) facilitate the enforcement of custody decrees of other states; and

(8) promote and expand the exchange of information and other

forms of mutual assistance between the courts of this state and

those of other states concerned with the same child.
u3Unif. Child Custody Jurisdiction Act prefatory note (1968). For an excellent

discussion of psychological and other types of injury suffered by abducted children,



464 INDIANA LAW REVIEW [Vol. 16:445

To accomplish its purposes, the UCCJA rejects all three of the
prior bases of jurisdiction over custody: (1) the child's domicile, (2)

the physical presence of the child, and (3) personal jurisdiction over

both contestants.114 It adopts, as the primary basis for jurisdiction,

the child's "home state," defined as the state where the child has ac-
tually lived with a parent or custodian for at least six months.115 "Home
state" is more than a euphemism for "domicile"; it identifies the state
where the child actually lives, rather than the state assigned as the
child's home because it is the residence of the parents. 116 To discourage
child snatching, home state jurisdiction continues for six months after
the child's removal from the state, as long as a parent or custodian

remains in the home state.117 The alternate basis for jurisdiction is
the "significant connection" of the child, and at least one contestant,

with a state having available "substantial evidence concerning the

child's present or future care, protection, training, and personal

relationships."
118

In addition, the Act includes a provision for emer-
gency jurisdiction when the child has been abandoned, abused, or
neglected.

119 A state also can take jurisdiction when no other state
is able or willing to exercise jurisdiction.

120

Although the UCCJA attempts to limit jurisdiction to one state,
which usually will be the "home state," the UCCJA also recognizes
that a forum for adjudication of custody must always be available.

Because of this need, the Act retains some flexibility in the jurisdic-
tional standards, though considerably less than under prior law. It

is possible that more than one state can qualify for jurisdiction under
UCCJA section 3. 121 In such situations, the Act accords priority of
jurisdiction to the state where proceedings were first initiated,122 but
the UCCJA also contemplates that the court with time priority may

see Note, The Parental Kidnapping Prevention Act—Analysis and Impact on Uniform
Child Custody Jurisdiction, 27 N.Y.L. Sch. L. Rev. 553, 555-57 (1981).

ni
See Sampsell v. Superior Court, 32 Cal. 2d 763, 197 P.2d 739 (1948).

115
Ind. Code §§ 31-1-11.6-2(5), -3(a)(1) (1982). Again, it should be noted that where

appropriate UCCJA sections will be cited to the Indiana version of the Act, which
contains no major deviations from the text.

U6A child's domicile is a legal fiction which may or may not be the state where
the child actually lives.

117
Ind. Code § 31-1-1 1.63(a)(1) (1982). There is also a "clean hands" provision under

which a court can decline jurisdiction if the child has been "wrongfully taken" from

another state. Id. § 31-1-11.6-8.
n
*Id. § 31-l-11.6-3(a)(2).

n9
Id. § 31-l-11.6-3(a)(3).

m
Id. § 31-l-11.6-3(a)(4).

121Unif. Child Custody Jurisdiction Act § 3. Typically, when the child has recent-
ly acquired a new home state, the state of its former residence still will have "signifi-

cant connection" with the child and a custodian, and "substantial evidence" concern-

ing the child will be present in that state.
122
Ind. Code § 31-1-11.6-6 (1982).



1983] CUSTODY JURISDICTION 465

decline jurisdiction in favor of a more convenient forum.123 To achieve
this result, the Act encourages, and sometimes requires, courts to

"communicate" with each other in order to determine which court is

the more appropriate forum. 124 Once a court that meets the jurisdic-

tional requirements of the Act has reached a decision, all other states

are required to recognize and enforce the decree.125 No other state
can modify the decree while the original court retains jurisdiction.

126

The jurisdictional standards of the UCCJA are focused on the
child; the child's home state or the state having a significant connec-
tion with the child usually assumes jurisdiction. The absent parent
is entitled to "reasonable notice and opportunity to be heard."127 If

the parent lives outside the state, notice can be given by personal

service, by mail, or "as directed by the court."128 The determination

m
Id. § 31-1-11.6-7.

12i
Id. §§ 31-l-11.6-6(c), -7(d). Direct communication between courts is a novel con-

cept which originated with the UCCJA, although patterned to some extent on RURESA.
See Ind. Code §§ 31-2-1-1 to -39 (1982).

125M § 31-1-11.6-13.
m
Id. § 31111.614(a).

ni
Id. 5 31-1-11.6-4. Section 4 provides:

Sec. 4. Notice and Opportunity to be Heard. Before making a decree under

this chapter, reasonable notice and opportunity to be heard shall be given

to the contestants, any parent whose parental rights have not been previously

terminated, and any person who has physical custody of the child. If any
of these persons is outside this state, notice and opportunity to be heard

shall be given pursuant to section 5 of this chapter.
12e
Id. § 31-1-11.6-5. Section 5 provides:

(a) Notice required for the exercise of jurisdiction over a person out-

side this state shall be given in a manner reasonably calculated to give ac-
tual notice, and may be:

(1) by personal delivery outside this state in the manner prescribed

for service of process within this state;

(2) in the manner prescribed by the law of the place in which the
service is made for service of process in that place in an action in any
of its courts of general jurisdiction;

(3) by any form of mail addressed to the person to be served and

requesting a receipt; or

(4) as directed by the court.

(b) Notice under this section shall be served, mailed, or delivered, at

least twenty (20) days before any hearing in this state.

(c) Proof of service outside this state may be made by affidavit of the
individual who made the service, or in the manner prescribed by the law
of this state, the order pursuant to which the service is made, or the law

of the place in which the service is made. If service is made by mail, proof
may be a receipt signed by the addressee or other evidence of delivery to
the addressee.

(d) Notice is not required if a person submits to the jurisdiction of the

court.

An optional provision authorizing service by publication was omitted from the Indiana
version of the UCCJA.



466 INDIANA LAW REVIEW [Vol. 16:445

of a court meeting the jurisdictional standards of the Act will bind

a parent so notified, if he has been given an opportunity to be heard.129

The Act does not claim, however, that giving the required notice and
opportunity to be heard results in personal jurisdiction over the ab-

sent parent. In fact, any such intent is expressly disclaimed in the

official comments to the Act: "There is no requirement for technical
personal jurisdiction, on the traditional theory that custody determina-

tions, as distinguished from support actions . . . are proceedings in

rem or proceedings affecting status." 130

The conflict between the UCCJA and the May plurality opinion
is evident. The Act relies on "a common interpretation" of May, that
"a state is permitted to recognize a custody decree of another state

regardless of lack of personal jurisdiction, as long as due process re-
quirements of notice and opportunity to be heard have been met."131

This interpretation, based upon the Frankfurter concurrence in May132

and adopted by the Restatement (Second) of Conflicts,
133

treats personal

jurisdiction as irrelevant and May as a full faith and credit case rather
than a due process case.134 It is not surprising that the UCCJA adopted
this view, considering the uncertainty of the law at the time the Act
was drafted, Because the Supreme Court had withheld the protection
of full faith and credit from custody decrees,135 the UCCJA sought
stability instead through interstate comity and cooperation.136 States

129Jd § 31-1-11.6-12. Section 12 provides:
A custody decree rendered by a court of this state which had jurisdic-

tion under section 3 of this chapter binds all parties who have been served |
in this state or notified in accordance with section 5 of this chapter or who
have submitted to the jurisdiction of the court, and who have been given
an opportunity to be heard. As to these parties the custody decree is con-
clusive as to all issues of law and fact decided and as to the custody deter-

mination made unless and until that determination is modified pursuant to
law, including the provisions of this chapter.
130Unif. Child Custody Jurisdiction Act § 12 commissioners' note. See also id.

§ 13 commissioners' note.
131
Id. § 13 commissioners' note.

132345 U.S. at 535.
133Restatement (Second) of Conflict of Laws § 79 & comment.
134"The section [12] is not at variance with May v. Anderson . . . which relates

to interstate recognition rather than instate validity of custody decrees." Unif. Child

Custody Jurisdiction Act § 12 commissioners' note.
™E.g., May v. Anderson, 345 U.S. 528 (1953) (plurality opinion).
136The prefatory note to the UCCJA points out that "the United States Supreme

Court has never settled the question whether the full faith and credit clause of the

Constitution applies to custody decrees . . . ." Unif. Child Custody Jurisdiction Act,

prefatory note, 9 U.L.A. at 112. This uncertainty led to "a tendency to over-emphasize

the need for fluidity and modifiability of custody decrees at the expense of the equal

(if not greater) need, from the standpoint of the child, for stability of custody deci-

sions once made." Id. at 113.



1983] CUSTODY JURISDICTION 467

adopting the Act commit themselves to recognize and to enforce
custody decrees from all other states, provided only that the court

issuing the decree meets the jurisdictional standards of the Act.137

Interstate enforcement of decrees is secured through comity, rather

than full faith and credit. Viewed as a full faith and credit case, May
was not an obstacle to achievement of the UCCJA's goals.

Congress recently brought the full faith and credit clause back

into the picture, however, by passing the Parental Kidnapping Preven-

tion Act of 1980. 138 The federal act declares that custody decrees
meeting standards that parallel the UCCJA jurisdictional standards
are entitled to full faith and credit in all states.139 If a case arose to-

day with facts identical to May, the federal statute would require Ohio
to give full faith and credit to the Wisconsin decree. It now seems
somewhat ironic that the UCCJA was based on the Frankfurter con-
currence in May, which took the position that full faith and credit
had little or no application to custody cases.140

It is significant that the UCCJA's choice of Frankfurter's inter-
pretation of May occurred several years before the Supreme Court
decided Shaffer and Kulko, and during a period of unparalleled ex-

pansion of interstate jurisdiction.141 At the time the UCCJA was

137
Ind. Code § 31-1-11.6-14 (1982). Section 14 applies whenever a state custody

court meets the jurisdictional standards of the Act, even though the state has not

adopted the UCCJA. State ex rel. Marcrum v. Marion County Superior Court, 403
N.E.2d 806 (Ind. 1980).

13828 U.S.C. § 1738A (Supp. V 1981).
139
Id. The full faith and credit clause, U.S. Const, art. IV, § 1, gives Congress

the power to prescribe the "effect" of state judicial proceedings: "Full Faith and Credit

shall be given in each State to the public Acts, Records and Judicial Proceedings of

every other State. And the Congress may by general Laws prescribe the Manner in
which such Acts, Records and Proceedings shall be proved, and the Effect thereof"

Id. (emphasis added). See generally Whitten, The Constitutional Limitations on State-

Court Jurisdiction: A Historical-Interpretative Reexamination of the Full Faith and Credit
and Due Process Clauses (pt. 1), 14 Creighton L. Rev. 499, 505 n.26, 604-05 (1981); Com-
ment, The Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Preven-

tion Act: Dual Response to Interstate Child Custody Problems, 39 Wash. & Lee L. Rev.
149, 159-60 (1982).

Professor Coombs asserts that what the federal statute requires is enforcement
rather than full faith and credit despite the statute's title: "Full faith and credit given

to child custody determinations." See Coombs, supra note 22, at 714, 834-42, 849. Even
if it is true that the faith and credit given is less than "full" it is still far greater

than has ever been given to custody decrees.
140345 U.S. at 535-36. See Kovacs v. Brewer, 356 U.S. 604, 613 (1958) (Frankfurter,

J., dissenting); Ratner, Procedural Due Process and Jurisdiction to Adjudicate: (a)
Effective-Litigation Values vs. the Territorial Imperative (b) The Uniform Child Custody

Jurisdiction Act, 75 Nw. U.L. Rev. 363, 383 (1980).
141Note, Long-Arm Jurisdiction and Products Liability: Beyond World-Wide

Volkswagen, 11 Mem. St. U.L. Rev. 351, 353 & n.16 (1981) ("The expansion of state
judicial jurisdiction continued virtually unchecked between 1945 and 1977.").



468 INDIANA LAW REVIEW [Vol. 16:445

drafted, the "minimum contacts" test was used largely in cases in-
volving in personam jurisdiction over corporate defendants.142

Therefore, it is not surprising that the drafters of the UCCJA felt
they could safely sidestep the due process implications of the May
plurality opinion by applying the in rem label to custody jurisdiction.
Now the Court is moving in the direction of greater procedural pro-
tection both for nonresident defendants143 and for parental rights,144

and the UCCJA appears to be swimming against the tide when it
rejects a due process rationale for May. For the Court now to hold
that due process affords no protection to the rights of absent parents

would be incongruous. Even if the Court accepted the UCCJA's desig-
nation of custody jurisdiction as in rem, that, in itself, would not suf-

fice to immunize custody jurisdiction from the minimum contacts test
under Shaffer.

145

On the other hand, it is equally unlikely that the Court can or
will ignore the well-documented history of child snatching and of com-

petition between state courts which led to adoption of the UCCJA
and the Parental Kidnapping Prevention Act. The need for jurisdic-
tional and full faith and credit standards in custody cases is too clear

to permit the Court easily to overturn those statutes. Also, the

UCCJA does provide notice and an opportunity to be heard for the
absent parent. UCCJA section 12 states that a custody decree "binds
all parties who have been served in this state or notified in accordance
with section 5 of this chapter or who have submitted to the jurisdic-
tion of the court, and who have been given an opportunity to be heard."146

As the comments to section 12 state, "[t]he two prerequisites are
(1) jurisdiction under section 3 of this Act and (2) strict compliance

with due process mandates of notice and opportunity to be heard."
141

The remaining question then is whether there can be "strict com-
pliance" with the absent parent's due process right to a hearing

li2
E.g., McGee v. International Life Ins. Co., 355 U.S. 220 (1957); International Shoe

Co. v. Washington, 326 U.S. 310 (1945). See Hazard, A General Theory of State-Court
Jurisdiction, 1965 Sup. Ct. Rev. 241, 272-73.

U3Minimum contacts now are required in all kinds of suits, in rem as well as in
personam, and against all defendants, individual as well as corporate. See Kulko v.

Superior Court, 436 U.S. 84, 91-96 (1978); Shaffer v. Heitner, 433 U.S. 186 (1977).
144For example, the Court has held that an unwed father has a due process right

to a hearing before he can be deprived of the custody of his children. Stanley v. Il-

linois, 405 U.S. 645 (1972). In addition, no parent, wed or unwed, can have his parental
rights terminated without proof by at least a clear and convincing evidence standard.

Santosky v. Kramer, 102 S. Ct. 1388 (1982).
145
Shaffer v. Heitner, 433 U.S. 186 (1977) (requiring that assertions of in rem jurisdic-

tion be evaluated according to the minimum contacts standards set forth in decisions
regarding in personam actions).

146
Ind. Code § 31-1-11.6-12 (1982) (emphasis added).

147UCCJA § 12 commissioners' note (emphasis added).



1983] CUSTODY JURISDICTION 469

without an examination of minimum contacts between that parent and
the forum. The answer given by the Supreme Court will not necessar-
ily be the one given by the UCCJA and followed by the Indiana Court
of Appeals in In re Marriage of Hudson.*

148

IV. In re Marriage of Hudson

The parties in Hudson were married in Bloomington, Indiana in
1975 and lived there for a year and a half until the husband was
transferred to Iceland. The couple's two children were born in Iceland.

In addition, the husband adopted the wife's daughter from a previous

marriage. The husband was transferred to the state of Washington
in 1978, and the parties lived there until the wife returned to her

parents' home in Indiana in July 1979. She went back to Washington
a month later, but returned to Indiana with the children in December
1979. The wife filed for divorce in Indiana on March 12, 1980, notify-
ing the husband by mail. On the same day, the husband "apparently
forcibly removed" the two younger children from the mother's custody

and took them with him to Spain, where he was then stationed with
the Navy.149

The Indiana trial court entered a decree dissolving the marriage,
dividing the marital property, and awarding custody of the three

children to the wife. The court of appeals upheld the dissolution and
the custody award but reversed the division of property.150 The ap-
pellate court held that the trial court had jurisdiction over the divorce

because of the plaintiff wife's domicile in Indiana.151 The trial court
also had jurisdiction to award custody based on the significant con-
nection and substantial evidence standard of UCCJA section 3(a)(2). 152

However, the appellate court held that the court did not have jurisdic-

tion over the marital property because the court lacked in personam
jurisdiction over the absent husband.153

The court of appeals held that Indiana Trial Rule 4.4(A)(7)

148434 N.E.2d 107 (Ind. Ct. App. 1982).
149434 N.E.2d 107, 110 (Ind. Ct. App. 1982).
l50
Id. at 110.

151
In determining that the wife had been domiciled in Indiana for the six months

required by Ind. Code § 31-1-11.5-6 (1982), the trial court found that the wife's four-
month stay in Washington after her original return to Indiana had been only tem-
porary; the wife, therefore, had established residence in Indiana in July 1979, eight
months before filing her petition. The court of appeals held that this finding was sup-
ported by sufficient evidence. 434 N.E.2d at 112.

152434 N.E.2d at 115-17. Although Indiana's version of the UCCJA is titled the
Uniform Child Custody Jurisdiction Law (UCCJL), this discussion refers to the UCCJA
because the court of appeals relied on the Uniform Act and the commissioners'
notes in reaching its decision. Furthermore, section 3 of the UCCJL is identical to
the UCCJA. Id. at 114-15 nn.6-7.

153434 N.E.2d at 112-14.



470 INDIANA LAW REVIEW [Vol. 16:445

authorizes jurisdiction over a nonresident spouse who has lived
u
in

the marital relationship within the state" only if the other spouse has

maintained continuous residence within the state.
154 Under this inter-

pretation, service upon the husband by mail in Spain did not give

the Indiana court personal jurisdiction over him.
155 Thus, the court

of appeals settled the question of in personam jurisdiction over the

husband adversely to the wife before reaching the custody jurisdic-

tion issue.

The husband argued that due process required in personam jur-

isdiction over him before the court could determine custody and

that no such jurisdiction existed because he had no minimum contacts
with Indiana. The appellate court held that in personam jurisdiction

is not required under the UCCJA, which treats custody jurisdiction
as in rem; the court avoided the minimum contacts issue entirely by
relying on the status exception in Shaffer v. Heitner.

156

Initially, the court determined that Indiana had in rem jurisdic-
tion over custody under UCCJA section 3(a)(2), because the state had

154
Ind. R. Tr. P. 4.4(A)(7) provides for jurisdiction over nonresidents based on "liv-

ing in the marital relationship within the state notwithstanding subsequent departure

from the state, as to all obligations for alimony, custody, child support, or property

settlement, if the other party to the marital relationship continues to reside in the state."

(emphasis added). The appellate court's requirement of continuous residence by the
remaining spouse seems fair enough on the facts of Hudson, where the couple had

lived in Indiana for only one and a half years and had left the state nearly four years

before the wife filed her dissolution action. This requirement may make considerably
less sense in cases where the period of Indiana residence is much longer and the period
of absence is much shorter but still sufficient to break the continuity of the remaining
spouse's residence. The holding of Hudson makes no allowance for such factual variations.

Note also that Trial Rule 4.4(A)(7) applies to personal jurisdiction for purposes

of child custody, as well as for alimony, child support, and property settlement.
155Because no claim to personal jurisdiction over the husband could be established

based on Trial Rule 4.4(A)(7), there was no occasion for further discussion of possible
minimum contacts between the husband and Indiana. Only if a basis for long arm
jurisdiction existed under the rule would it become necessary to subject the claimed

jurisdiction to the further due process test of minimum contacts. See F. James & G.
Hazard, Civil Procedure § 12.14, at 632-33 (2d ed. 1977); Comment, Constitutional
Limitations on State Longarm Jurisdiction, 49 U. Chi. L. Rev. 156, 157 n.14 (1982).

The court's language implies that qualifying for jurisdiction under Trial Rule
4.4(A)(7) would automatically satisfy the minimum contacts test. "Generally . . . this
minimum contact requirement may be met under Ind. Rules of Procedure, Trial Rule
4.4(A)(7)." 434 N.E.2d at 112. One can imagine a case, however, in which the spouse's
absence from the state had been so prolonged that a genuine question concerning

minimum contacts might arise. In such a case, due process might require rejection
of in personam jurisdiction even though the technical requirements of Trial Rule 4.4(A)(7)

had been met.

The court of appeals also held that the husband had not waived the issue of per-
sonal jurisdiction by addressing the merits, and that he was not estopped by his state-
ment that he would "abide by" the trial court's custody decision. 434 N.E.2d at 113.

156434 N.E.2d at 117 (citing Shaffer v. Heitner, 433 U.S. 186 (1977)).



1983] CUSTODY JURISDICTION 471

a "significant connection*' with the children and with one contestant,

the mother, and "substantial evidence" was available concerning the
children's future care.

157 Because of the children's recent move to
Indiana, no state could qualify as the children's home state under sec-
tion 3(a)(1).

158 Section 3(a)(2) bases jurisdiction on contacts of the child

and one parent with the state; the other parent's contacts with the

state are irrelevant under the UCCJA. Under Shaffer, however, any
assertion of state court jurisdiction is subject to the minimum con-
tacts test of International Shoe.

159 Treating custody jurisdiction as in

rem solved only the problems posed by the May plurality's require-
ment of in personam jurisdiction: the issue of minimum contacts

157434 N.E.2d at 116 (citing Ind. Code § 31-1-1 1.63(a)(2) (1982)). Under this code

section a state has custody jurisdiction if:

(2) it is in the best interest of the child that a court of this state assume

jurisdiction because (A) the child and his parents, or the child and at least

one (1) contestant, have a significant connection with this state, and (B) there

is available in this state substantial evidence concerning the child's present

or future care, protection, training, and personal relationships.

Ind. Code. § 31-l-11.6-3(a)(2) (1982).
158A state has jurisdiction under section 3(a)(1) if:

(1) this state (A) is the home state of the child at the time of com-
mencement of the proceedings, or (B) had been the child's home state within
six (6) months before commencement of the proceeding and the child is ab-
sent from this state because of his removal or retention by a person claim-

ing his custody or for other reasons, and a parent or person acting as parent

continues to live in this state.

Ind. Code § 31-l-11.6-3(a)(l) (1982).

"Home state" is defined by section 2(5):
(5) "home state" means the state in which the child, immediately

preceding the time involved, lived with his parents, a parent, or a person

acting as parent, for at least six (6) consecutive months, and in the case of

a child less than six (6) months old the state in which the child lived from

birth with any of the persons mentioned. Periods of temporary absence of

any of the named persons are counted as part of the six (6) month or other
period.

Id. § 31-1-11.6-2(5).

Although a home state retains its status as such for six months after the child's
removal, it does so only if a parent or custodian continues to live in the state. Because

neither parent remained in Washington when the wife filed her petition three months
after bringing the children to Indiana, Washington could not claim home state status,
although it might have qualified under the significant connection/substantial evidence

test of section 3(a)(2). No one had filed suit in Washington, so it was unnecessary to
decide which state would have the better jurisdictional claim. Had such a dispute over
jurisdiction arisen, it would have been determined by communication between the

Washington and Indiana courts under Indiana Code sections 31-1-11.6-6, -7. However,

in Hudson it was necessary only to decide, as the court did, that Indiana did have
jurisdiction.

159433 U.S. 186, 212 (1977) (citing International Shoe Co. v. Washington, 326 U.S.

310 (1945)).



472 INDIANA LAW REVIEW [Vol. 16:445

remained. The court of appeals had to rely on the "status exception"
of Shaffer in order to dispose of the need for minimum contacts
altogether.

160

The status exception is found in a footnote to Shaffer: "We do
not suggest that jurisdictional doctrines other than those discussed

in text, such as the particularized rules governing adjudications of

status, are inconsistent with the standard of fairness."161 The footnote
follows a statement in the text that many types of in rem jurisdic-
tion "would not be affected" by Shaffer's requirement that all asser-

tions of state court jurisdiction "must satisfy" the minimum contacts
test.

162
It is not clear whether the Court meant that the basis for the

claim of in rem jurisdiction in such cases usually would satisfy the
minimum contacts test, or that minimum contacts would not be re-
quired at all. The Indiana court assumed that the second interpreta-
tion was correct, but the context of the textual statement strongly
suggests that the first meaning was intended.163 The only example
of a status adjudication given in Shaffer is divorce. A quotation from
Pennoyer v. Neff

16* refers to divorce jurisdiction as the prime exam-

ple of adjudications affecting status,
165 and the only authority cited

in the footnote, an article by Justice Traynor, discusses the signifi-

cant differences between divorce jurisdiction and custody jurisdiction.166

Shaffer thus provides scant authority for lumping divorce and custody

together under the status label.

A comparison between the rights of the absent parties in divorce
and custody cases is critical to the due process issue of minimum con-
tacts. Justice Traynor points out that in divorce cases the absent

spouse frequently can claim "no more than a marriage in name."167

In such cases,

a court could reason that even a defendant who had no con-
tacts whatever with the forum state would not be gravely af-

160434 N.E.2d at 117.
161433 U.S. at 208 n.30.
162
Id. at 208.

163
See Shaffer, 433 U.S. at 207-08, in which the Court points out that the "presence

of property in a State may bear on the existence of jurisdiction by providing contacts
among the forum State, the defendant, and the litigation." Id. at 207.. See Coombs,
supra note 22, at 741-44.

16495 U.S. 714 (1878).
165433 U.S. at 201. "Mr. Justice Field's opinion [in Pennoyer] carefully noted that

cases involving the personal status of the plaintiff, such as divorce actions, could be

adjudicated in the plaintiffs home State even though the defendant could not be served
within that State." Id. (emphasis added). The reference to "home state" here is, of

course, to plaintiffs domicile, not to the UCCJA concept.
166Traynor, Is This Conflict Really Necessary?, 37 Tex. L. Rev. 657, 660-61 (1959).

The significance of the Court's citation of the Traynor article is discussed in Coombs,

supra note 22, at 743 n.182.
167Traynor, supra note 166, at 661.



1983] CUSTODY JURISDICTION 473

fected by a decree enabling the plaintiff to remarry, since there

would be no way of compelling the plaintiff to cohabit with
defendant and no effective way of preventing the plaintiff from
cohabiting with anyone else. ... In any event, a defendant's

purposeless interest in barricading the plaintiffs avenue to

freedom is overwhelmingly outweighed by the plaintiffs pur-

poseful interest in securing freedom. Finally, the dubious in-

terest of defendant's state in perpetuating a broken marriage

in limbo is overwhelmingly outweighed by the forum state's

major interest in the orderly resolution of a plaintiff

domiciliary's marital status.
168

It cannot be said that an absent parent's interests in a custody ad-

judication are "purposeless" or "dubious," or that the parent "would

not be gravely affected" by a custody determination made in his
absence, especially if no weight is given to the reasons for the absence.

Justice Traynor recognized that the interests of the state and of the

parties are far greater in actions involving children. Contacts between

the parties and the state "take on larger and perhaps paramount im-

portance, since the consequences of any action either declaring or ter-

minating the relationship are so momentous to the parties. In conjunc-
tion with fair play, these considerations would normally preclude

jurisdiction over a nonresident defendant having no contact with the

forum state" 169

Nothing in the Traynor article supports including custody jurisdic-

tion within the status exception. Indeed, Justice Traynor's statements

are entirely compatible with the May plurality's reference to "rights
far more precious than property rights." Hence it is doubtful that
the Court intended either to overrule May in a footnote or to dispense
with any requirement of minimum contacts in custody cases. Even
a plurality opinion is rarely overruled by a footnote, especially when
the authority cited in the footnote tends to support the plurality.

The court of appeals in Hudson held that compliance with the
notice provisions of the UCCJA was sufficient to satisfy "traditional
notions of fair play and substantial justice"; 170 however, the minimum
contacts test is concerned less with notice than with the opportunity

to be heard. Notice alone does not satisfy due process if it does no

more than inform a defendant of a hearing taking place in a distant

m
Id. See also Garfield, supra note 31, at 510 & n.57 (1980) ("It seems unlikely . . .

that the right to remain married to an unwilling spouse rises to the dignity of a due

process right."). The same could not be said of a parent's rights in his children.
169Traynor, supra note 166, at 661 (emphasis added). Justice Traynor concedes that

if a parent's whereabouts are unknown, or the parent "has failed to discharge his

parental obligations," the state, on giving "the best notice reasonably possible, should

be free to promote the interest of the child by permitting his adoption." Id. at 662.

However, no such concession is made concerning custody. See infra note 187.
170434 N.E.2d at 119.



474 INDIANA LAW REVIEW [Vol. 16:445

forum in which he has no realistic chance of appearing. Consequently,

the core requirement of the due process clause is usually stated as

notice and an opportunity to be heard.171 The forum non convenience
provisions of the UCCJA provide some protection for the defendant's
right to a hearing,

172
but they are of little use in cases such as Hud-

son where no more convenient forum is available. UCCJA section 7
contemplates that a court will decline jurisdiction only when a court
in another state can provide "a more appropriate forum."173 In Hudson,
the only alternative forums were Spain, where the husband and two
of the children were living, and Washington, where none of the parties
lived. Therefore, Indiana was the least inconvenient forum.

If the result in Hudson satisfies "traditional notions of fair play
and substantial justice," it is only because of the presence of child

snatching by the father. The status exception rationale of Hudson
would mandate the same result even without the child snatching, even
perhaps if the mother had been guilty of child snatching.174 Binding

a father by a custody determination in favor of a child-snatching

mother, made at a hearing he was physically unable to attend in a
state with which he had no contacts, would not comport with due

process. Such a father should have at least the opportunity of raising

a minimum contacts defense to the court's assertion of custody jurisdic-
tion. Due process requires that the Hudson rationale be reconsidered.

Upholding the rationale of Hudson would require the Supreme
Court not only to overrule the plurality opinion in May, but also to

immunize custody jurisdiction from any minimum contacts inquiry,
through the status exception or otherwise. Both actions would be

necessary, and it is not clear that the Supreme Court is prepared
to do either. Other alternatives need to be examined.

V. Due Process Without Minimum Contacts?

The UCCJA initially assumed that the absent parent could have
due process protection without requiring in personam jurisdiction. The

m
E.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

In Boddie v. Connecticut, 401 U.S. 371 (1971), the Court was concerned only with the
opportunity to be heard because the plaintiffs were complaining that filing fees and
service costs beyond their financial means denied them the opportunity to be heard.

"2See Ind. Code § 31-1-11.6-7 (1982). Other UCCJA provisions minimize the dis-
advantages of out-of-state litigation. See supra note 105.

173
Ind. Code § 31-l-11.6-7(a), (c), (d), (e), (h) (1982).

174The clean hands provision, id. § 31-1-11.6-8, would allow the Indiana court to
decline jurisdiction if the mother were guilty of child snatching, but section 8 is discre-
tionary. If the court did take jurisdiction in spite of the mother's conduct, the resulting

decree would be binding on the father. On facts similar to Hudson's, the father might
find some relief in the Soldiers and Sailors' Civil Relief Act, but this would not apply
to aU absent parents. See 50 U.S.C. app. § 520 (1976).



1983] CUSTODY JURISDICTION 475

Act adopted child-centered bases of jurisdiction and labeled jurisdic-
tion as in rem; but it also provided that the absent parent would be
bound only if he had notice and the opportunity to be heard.175 Once
the Supreme Court adopted minimum contacts as the due process test
for all types of state court jurisdiction, in rem as well as in personam,176

minimum contacts became the appropriate test for jurisdiction under
the UCCJA. How else would one determine whether a state has met
the Act's own due process requirement of notice and opportunity to
be heard for the absent parent? The question raised by Hudson is
whether the absent parent can be afforded due process without

minimum contacts among the parent, the forum, and the litigation.177

It should be clear that May v. Anderson is almost irrelevant to
this question. It makes little difference whether minimum contacts
are required to establish in personam jurisdiction over the absent
parent under May and Kulko, or whether minimum contacts are re-
quired to establish in rem jurisdiction over the subject matter of
custody under the UCCJA and Shaffer. In either event, minimum con-
tacts are required before a binding custody determination can be made.

Designating custody jurisdiction as in rem avoids a minimum con-
tacts inquiry only if one takes the additional step of fitting custody

jurisdiction within the Shaffer status exception, and then only if the

status exception is read as a total exemption from any minimum con-
tacts inquiry.

178 These steps seem to run counter to the Supreme
Court's recent concern for the procedural rights of parents,

179
as well

as to the Court's generalized concern for the procedural rights of ab-

sent defendants.
180 Thus, a real possibility exists that the Supreme

Court will reject the Hudson reasoning, even though the Court un-
doubtedly will want to sustain a statute as widely adopted and as

well supported by sound policy as the UCCJA. The Court needs a
rationale for upholding the UCCJA that is more consistent with its
recent due process and parental rights holdings.

If the Court does reject the Hudson rationale, any other line of
reasoning is likely to result in application of a minimum contacts test
to custody cases. The Indiana court assumes in Hudson that any such
application would be fatal to the UCCJA standards for custody

ll5
See supra notes 127-30 and accompanying text.

178
Shaffer v. Heitner, 433 U.S. 186 (1977).

l77
See id. at 207 (1977).

lie
See supra notes 160-66 and accompanying text.

"'E.g., Santosky v. Kramer, 102 S. Ct. 1388 (1982); Stanley v. Illinois, 405 U.S.
645 (1972).

m
E.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980); Shaffer

v. Heitner, 433 U.S. 186 (1977).



476 INDIANA LAW REVIEW [Vol. 16:445

jurisdiction,
181 but the Supreme Court has already made it clear that

"minimum contacts" does not mean the same thing in all contexts.
In Kulko, the Court seemed to be applying a more stringent standard
to child support cases than it applies in commercial cases.

182 This has

led to a fear that a higher standard will apply in all domestic rela-

tions cases,
183

including custody; however, this result does not necessar-

ily follow. The one example the Supreme Court gives of jurisdiction
falling within the status exception of Shaffer is also in the area of

domestic relations — divorce.184 Thus, domestic relations jurisdiction
covers the entire spectrum of standards for minimum contacts, from
the most restrictive in child support cases to the least restrictive in

divorce. All that remains is to determine where custody jurisdiction

best fits within that spectrum.

The Court should decline to fix the minimum contacts standard
for custody jurisdiction at either end of the spectrum.185 The analogy
to divorce jurisdiction, necessary to the "status exception" rationale,

is seriously flawed. As noted earlier, there are important differences
between divorce and custody litigation. 186 The absent parent has a far
greater interest in custody than an absent spouse has in maintaining

a dead marriage.187 Therefore, the absent parent needs more protec-
tion than the spouse in a divorce action.

181434 N.E.2d at 118. In this assumption, the court follows the lead of the drafter

of the UCCJA. See Bodenheimer & Neeley-Kvarme, supra note 21, at 237-39, 252. An
earlier Bodenheimer article, however, suggested that the child's contacts with the state

might be used to satisfy the minimum contacts test. See Bodenheimer, The Uniform
Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Con-
flict of Laws, 22 Vand. L. Rev. 1207, 1233-34 (1969).

182Kulko v. Superior Court, 436 U.S. 84 (1978).
m
E.g., Bodenheimer & Neeley-Kvarme, supra note 21, at 237.
mSee supra notes 164-66 and accompanying text.
mSee Pasqualone v. Pasqualone, 63 Ohio St. 2d 96, 103, 406 N.E.2d 1121, 1127

(1980) ("Although the contacts required to allow a court to make a binding custody
order may not need to be as great as those required to order a payment, more con-
tact is required than would be required in a divorce action.").

1S6
See supra notes 32-36 and accompanying text.

181
See supra notes 167-69 and accompanying text. The analogy to divorce works

better in cases involving termination of parental rights for abandonment, nonsupport,

etc. Here the parent has failed in his responsibility toward the child, forfeiting his

claim of rights in the child. See Traynor, supra note 166, at 661. Here, too, the child's

needs are greater. A final determination will open the door to the creation of new
parent-child relationships through adoption, so that the child's needs may outweigh
the absent parent's rights even though the result (final termination of rights) is more

drastic for the parent. "When a parent abuses or neglects a child . . . the interest
of the state shifts from protection of the parent's rights to protection of the child."

Bell, supra note 38, at 1066.

In custody disputes, however, the absent parent has not failed in his responsibilities

toward the child; in fact, he is presumably seeking to assume full responsibility for

the child. At any rate, failure cannot be presumed from the parent's mere absence



1983] CUSTODY JURISDICTION 477

At the other end of the spectrum, the distinction between child

custody and child support is equally clear. A child support action is
essentially a dispute over money, but in a noncommercial context. As

a result, the Court has found it necessary to apply a more restrictive

minimum contacts standard than that used in commercial cases.
188

Although the child is the ultimate beneficiary of the support award,

the determination of the amount of support due is not nearly so crucial

to the child's welfare as the determination of custody. In addition,

the nature of support litigation is such that it can be conducted more

easily from a distance than custody litigation.
189 The child's interest

in the availability of a forum for custody litigation and the state's

obligation to provide such a forum are far greater in custody than

in support actions. These considerations add weight to the state's claim

of jurisdiction; they usually should suffice to uphold jurisdiction despite

any lack of direct contacts between the defendant and the state.

With these considerations in mind, it should be no more difficult

to uphold custody jurisdiction than it is to uphold jurisdiction over

claims to property in a state. The state's obligation to provide a
custody forum is surely greater than its obligation to provide a forum

for resolving questions of title to property within the state. The Court
indicated in Shaffer that it foresaw no problems with upholding

jurisdiction over property claims, not as an "exception" to minimum
contacts, but by using the presence of the property in the state as

a relevant and sufficient contact.190 It is surprising how easily the
Court's language in Shaffer can be applied to custody, simply by

substituting the word "child" for "property":

[T]he presence of [a child] in a State may bear on the existence
of jurisdiction by providing contacts among the forum State,
the defendant, and the litigation. For example, when claims
to the [child] itself are the source of the underlying controversy

between the plaintiff and the defendant, it would be unusual

for the State where the [child] is located not to have jurisdic-

tion. In such cases, the defendant's claim to [a child] located

in the state would normally indicate that he expected to

from the state, without considering the reasons for the absence, which would undoubted-

ly be addressed when the court considers the merits of the case.
lS8
See Kulko v. Superior Court, 436 U.S. at 93-95 (the father's passive consent to

his daughter's living in California was insufficient for jurisdiction based on "causing
an effect").

189Aside from the availability of interstate litigation through RURESA, cited in
Kulko, support litigation is concerned primarily with financial information which can

easily be reduced to writing and submitted to the court in the form of affidavits or

depositions. In custody litigation, the presence of the contending parties, as well as

other witnesses familiar with the parents' relationships with the child, is essential.
190Shaffer v. Heitner, 433 U.S. 186, 207 (1977).



478 INDIANA LAW REVIEW [Vol. 16:445

benefit from the State's protection of his interest. The State's
strong interest in [protecting children] within its borders and

in providing a procedure for peaceful resolution of disputes

about the possession of that [child] would also support jurisdic-

tion, as would the likelihood that important records and

witnesses will be found in the State.191

This paraphrased statement appears to conflict with Kulko, in which

the Court held that the mere presence of his child in California, even
with the father's consent, was not a sufficient contact with the state
to support in personam jurisdiction over the father in a child support
action,

192 but the conflict is illusory. The distinction between child sup-
port and child custody is recognized by the italicized words, "when
claims to the [child] itself are the source of the underlying con-

troversy."
193 The action in Kulko was for money. The claim was not

to the child so the Court appropriately could apply, with even greater

rigor, the requirement usually applied in commercial cases, "that there

be some act by which the defendant purposefully avails [him]self of
the privilege of conducting activities within the forum State, thus in-

voking the benefits and protections of its laws."194 However, this re-
quirement of purposeful activity would be impossible to meet in most
custody cases, and it would make little sense to apply it in the custody
context. The child's best interests are the focus of custody litigation.
Parenthood imposes duties and responsibilities toward the child,

regardless of where the child may be found. These duties are surely
more weighty than the responsibilities of an owner to his property.
If ownership of property within the forum is a sufficient contact for

jurisdiction over a controversy between claimants to the property,

then having a child present within the forum should also be sufficient

in most cases for jurisdiction over custody.

There will be some cases, however, in which the forum state will
qualify for jurisdiction under the UCCJA, even though the child is
not present in the state.195 In a case such as Hudson, when jurisdic-

191433 U.S. at 207-08 (paraphrase) (emphasis added). In the paraphrase in the text,

the state's "strong interest in protecting children within its borders" is substituted

for the "strong interest in assuring the marketability of property within its borders."

Surely that is a better than even exchange.

Use of the child's presence in the state as a minimum contact is suggested in

Note, Jurisdiction—Uniform Child Custody Jurisdiction Act, 51 Temp. L.Q. 139, 148

n.66 (1978). See also Bodenheimer, supra note 181, at 1233-34.
192Kulko v. Superior Court, 436 U.S. 84, 94-95 (1978).
193Shaffer v. Heitner, 433 U.S. 186, 207 (1977) (paraphrase).
19iKulko, 436 U.S. at 94 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
195For example, Ind. Code § 31-l-11.6-3(a)(l) (1982) continues home state jurisdiction

for six months after removal of the children from the state. Section 3(a)(2) does not

require the children's presence at all, a point which is underscored by section 3(b).

Section 3(a)(3) requires the child's presence, in addition to other factors, such as

the existence of an emergency. Id. § 31-1-1 1.63(a)(3).



1983] CUSTODY JURISDICTION 479

tion is claimed under UCCJA section 3(a)(2), the minimum contacts
relied upon would have to be the child's "significant connection" to

the state and the presence in the state of "substantial evidence" con-

cerning the child.
196

In effect, the child's contacts with the state would

have to be attributed to the parent. In most cases, this approach would

not stretch the concept of minimum contacts too far, considering the
great need of the child for a forum with authority to decide custody,

the duty of the state to provide such a forum, and the protection

afforded the absent parent by the notice requirement and the forum
non convenience provisions of the UCCJA.197 The policy reasons for
stretching minimum contacts are even more compelling when the party
claiming the due process-minimum contacts defense has engaged in

child snatching. In such a situation, the minimum contacts defense
should be denied altogether.

To the extent that the minimum contacts test is concerned with
considerations of federalism,

198 rather than solely with defendants'

rights, the near-universal adoption of the UCCJA by the states pro-
vides a sufficient answer to any suggestion that the UCCJA forum
state is usurping the power of other states. In effect, the other states
have consented to any "usurpation" by adopting the UCCJA.199 Because
nearly all of the states, as well as the Congress,

200 now agree that
the UCCJA jurisdictional standards provide the best solution to the
complex problems raised by custody litigation in a federal system,

there is no room for the argument that an assumption of jurisdiction
under these standards violates principles of federalism, even by the

few states that have not yet adopted the Act. Even the nonadopting
states receive benefits from the Act in terms of interstate recogni-

tion of their decrees, provided only that those states meet the jurisdic-

tional standards of the Act. Thus, the arguments based on federalism

should weigh in favor of UCCJA jurisdiction.

196/d § 31-l-11.6-3(a)(2).
197/d § 31-1-11.6-7. "Sensible application" of the minimum contacts test should sus-

tain jurisdiction "in all but extreme cases." Coombs, supra note 22, at 763-64. See also

Pasqualone v. Pasqualone, 63 Ohio St. 2d 96, 102-03, 406 N.E.2d 1121, 1126 (1980); Com-
ment, The Due Process Dilemma of the UCCJA, 6 Ohio N.U.L. Rev. 586, 594 (1979).

198The Court stresses federalism considerations in World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 293-94 (1980). But see Rheinstein, The Constitutional Bases

of Jurisdiction, 22 U. Chi. L. Rev. 775, 817 (1955) (arguing that due process should

be concerned only with the rights of defendants); Whitten, The Constitutional Limita-

tions on State-Court Jurisdiction: A Historical-Interpretive Reexamination of the Full
Faith and Credit and Due Process Clauses (pt. 2), 14 Creighton L. Rev. 735, 843, 846
(1981).

m
Cf Elkind v. Byck, 68 Cal. 2d 453, 439 P.2d 316, 67 Cal. Rptr. 404 (1968) (holding

in effect that Georgia, by adopting the Uniform Reciprocal Enforcement of Support

Act, consented to the application of the law of the father's residence, California, in

determining his child support obligation).
mSee supra notes 106, 138-39 and accompanying text.



480 INDIANA LAW REVIEW [Vol. 16:445

This is not to say that minimum contacts would exist in every
custody case in which UCCJA standards are met. The minimum con-
tacts test would be meaningless if the concept were stretched to the
point where any contact would suffice. Therefore, it is necessary to
consider what would happen if a court were to uphold a minimum
contacts defense in a fact situation similar to Hudson but without the
child-snatching element. Would the court have the power to deter-
mine custody in the father's absence? Would its decree be enforceable
against the father? A literal reading of May would require a negative
answer to both questions, but here again it is necessary to consider

the special nature of custody proceedings. The forum court is faced
with a child in need of a determination of custody, and the court has

sufficient contacts with the child under the UCCJA standards to make
the determination. The court has a duty to the child to determine
custody, and a duty to the absent parent to protect his due process

right to a hearing on custody. The court need not choose between
two apparently conflicting duties because it can accommodate both.

The court's first and immediate duty is toward the child. Even
though the child's interests would be best served by a determination

made after a full hearing with both parents present,201 when that is
impossible, the court must do the best it can with the evidence at
hand. The court must determine custody, and in this situation, assum-
ing the mother to be fit, it will have little choice but to award custody

to the mother. In rem jurisdiction over custody under the UCCJA
should be sufficient to give the court power to issue an ex parte decree

in these circumstances.

Although a due process reading of May seems to dictate that the
father not be bound by the ex parte decree, much has changed since
May was decided. Both the UCCJA202 and the Parental Kidnapping
Prevention Act203 now require that custody decrees rendered by courts
meeting the UCCJA jurisdictional standards be enforced in other
states, and that the absent parent be bound, if he had notice and an

opportunity to be heard.204 It might be argued that the UCCJA op-
portunity to be heard requirement itself imports a minimum contacts
test, but this would not contribute to solution of the problem. The
purposes of the UCCJA and of the full faith and credit and due process
clauses can be served by holding that the decree is prima facie entitled

to enforcement in all states, even against the father, but that the

father remains entitled to an original hearing on custody, rather than

201
See Coombs, supra note 22, at 750-51.

202
Ind. Code § 31-1-11.6-13 (1982).

20328 U.S.C. § 1738A (Supp. V 1981).
204
Ind. Code § 31-1-11.6-12 (1982); 28 U.S.C. § 1738A (Supp. V 1981).



1983] CUSTODY JURISDICTION 481

a modification hearing.
205 At this original hearing, the court would

determine custody de novo based on the best interests of the child,

and the father would not have the burden of proving changed circum-

stances.
206 Nor would courts in other states be required to defer to

the custody jurisdiction of the original forum, as UCCJA section 14
ordinarily would require.207 Any court qualified to decide custody under
the UCCJA and able to provide a full-scale hearing with both parties
present208 could hear and decide custody de novo.

205
See Sampson, What's Wrong with the UCCJA?, 3 Fam. Advoc, Spring 1981, at

28, 30.

In effect, the suggested treatment makes the ex parte decree effective to main-

tain the status quo only until the absent parent is able to secure the hearing to which

he is constitutionally entitled, rather than declaring the ex parte decree void, as would

be the case with other kinds of judgments (e.g., a money judgment obtained in viola-
tion of the defendant's due process rights). To protect the child, the parent has the

burden of seeking redress for the violation of his rights.
206This approach is not to be confused with a similar rule formerly followed in

Oregon. In Williams v. Zacher, 35 Or. App. 129, 581 P.2d 91 (1978), the Oregon Court

of Appeals held that change of circumstances did not have to be shown in an Oregon

hearing because the ex parte Colorado decree awarding custody to the mother had

been made without notice to the father. The court also relied, however, on the fact
that Colorado did not have jurisdiction under the UCCJA at the time its custody order
was entered. In Grubs v. Ross, 47 Or. App. 631, 614 P.2d 1225 (1980), rev'd, 291 Or.

263, 630 P.2d 353 (1981), the same no change of circumstances rule was applied without

discussing the prior (Montana) court's jurisdiction, simply on the ground that no prior

adversary hearing had been held in the case. 47 Or. App. at 637, 614 P.2d at 1228.

This application was much too broad, especially in view of the fact that no adversary
hearing had been held because the father had removed the child from Montana before

the mother filed her divorce petition. As applied by the Oregon courts, the no change
in circumstances rule seriously undermined the central purpose of the UCCJA, to pre-
vent child snatching. See supra notes 111-13. Both decisions resulted in awards of custody

to child-snatching parents, although the Williams court had little choice, because both

parents had engaged in child snatching. The Oregon Supreme Court recognized that
child snatching "has become a serious societal problem" when it reversed Grubs, 291
Or. 263, 630 P.2d 353, 362 (1981).

The rule advocated in this Article would allow the absent parent a de novo hear-
ing on custody only when he has been deprived of due process, as in the Williams
case, and not in every instance in which no adversary hearing has been held, as in

the court of appeals decision in Grubs.

The Oregon rule was derived from Settle v. Settle, 276 Or. 759, 556 P.2d 962

(1976), in which the Oregon courts granted custody to a child-snatching mother who
had left Indiana with the children after the divorce action had been filed and she

had been awarded temporary custody by the Indiana court. Indiana clearly had jurisdic-

tion over the subject matter and in personam jurisdiction over the mother. Therefore,

its final decree awarding custody to the father was entitled to more respect under
UCCJA section 14 than it received in the Oregon proceeding. Settle was overruled
by the Oregon Supreme Court. Grubs v. Ross, 291 Or. 263, 630 P.2d 353 (1981).

207
Ind. Code § 31-1-11.6-14 (1982).

208This limitation is necessary in order to prevent a return to pre-UCCJA anar-
chy. Only a bilateral order, issued after a full hearing by a court with access to all



482 INDIANA LAW REVIEW [Vol. 16:445

This approach has the advantage of preserving for the absent

parent his essential due process right to a hearing on custody, while

according prima facie validity to the existing ex parte decree. As ap-
plied to the facts of May, it would mean that an ex parte custody
decree would be enforced in a summary proceeding, even against the
absent parent,209 at least until a full hearing could be held. If the ab-

sent parent attempted to take the child without legal proceedings,

the decree could be used to return the child to the other parent, pend-

ing the hearing. Thus, the central purpose of the UCCJA and the
federal statute, the prevention of child snatching, could still be ef-

fected, while some protection would be afforded to the absent parent's
due process rights.

The suggested approach places the respective rights of the
parents, the child, and the state in their proper order. It would not

devalue the absent parent's rights by treating them as no weightier
than the absent spouse's rights in a divorce case. It also would

recognize both the great interest of the child in having a forum

available to adjudicate custody and the overwhelming responsibility

of the state to provide such a forum. In most instances, these interests

of the child and the state would outweigh the parent's rights. In those

few extreme cases where the absent parent's minimum contacts
defense was successful, however, a hearing de novo would at least
preserve for him that which due process guarantees: a meaningful

opportunity for a hearing.

Holding another original custody hearing would not require the

court to ignore the parent's absence from the child or any child snatch-

ing. These facts would be relevant to the merits of the custody issue.

A parent's long absence may indicate a weakening of the bonds
between parent and child, regardless of the reasons for the absence.210

A parent's resort to child snatching may reflect his lack of maturity,
judgment, and sensitivity to the child's needs. One would expect that
the result rarely would be different in an original custody hearing

than it would have been in a modification hearing, but due process

does not guarantee results: it guarantees only the opportunity for a

hearing.

relevant evidence, should be sufficient to override the prima facie validity, of the original

custody decree. Otherwise we would again be faced with battling parents, armed with
conflicting ex parte custody decrees, heralding a resurgence of child snatching.

209This result is achieved, not by overruling or even ignoring May, but by the

operation of the UCCJA and the federal statute. See R. Crouch, supra note 107, at
xi; Comment, The Due Process Dilemma of the Uniform Child Custody Jurisdiction Act,
6 Ohio N.U.L. Rev. 586, 589 (1979) (arguing that the states in effect "overruled" May
when they adopted the UCCJA).

210
Cf Unwed Father v. Unwed Mother, 177 Ind. App. 237, 244, 379 N.E.2d 467,

472 (1978).



1983] CUSTODY JURISDICTION 483

If this approach is followed, it makes little difference whether May
is read as requiring in personam jurisdiction over the absent parent,

or whether it is interpreted as a due process case or as a full faith

and credit case. The Supreme Court will not need to repudiate the
due process implications of May.211 If it so desires, the Court may con-
tinue to treat May as the first of a growing line of cases dealing with
parents' due process rights. The Court may even interpret May as
requiring in personam jurisdiction in custody cases. If it does, the

notice and opportunity to be heard provisions of UCCJA sections 5
and 12 can be read as long arm provisions giving the custody court
in personam jurisdiction over the absent parent.212 Because these sec-

tions require due process notice and an opportunity to be heard, they

readily lend themselves to such an interpretation, despite the

statements to the contrary in the comments.213 It is the Court's

longstanding policy to interpret statutes so as to avoid constitutional

problems.214 The due process problems raised by rejecting the UCCJA
comments' interpretation of May could easily be cured by inter-
preting the UCCJA text as conferring in personam jurisdiction. If this
interpretation were applied to the facts of Hudson, for example, ser-

vice by mail on the father in Spain would be treated as giving the

Indiana court in personam jurisdiction over the father.215 The court
then would have to apply a minimum contacts test appropriate to
custody cases.

On the other hand, if the Court accepts the UCCJA's characteriza-
tion of May as a full faith and credit case, there would be no need
to alter the characterization of custody jurisdiction as in rem. In per-

sonam jurisdiction would not be required, but under Shaffer, a
minimum contacts inquiry would still be necessary. In either event,
the court's minimum contacts inquiry should be essentially the same.

2n
See supra notes 8-22 and accompanying text.

212
See Wilke v. Wilke, 73 A.D.2d 915, 423 N.Y.S.2d 249 (1980); Coombs, supra note

22, at 739, 862; Garfield, supra note 31, at 546. Early drafts of the UCCJA did contain
explicit long arm provisions. See Bodenheimer, The Uniform Child Custody Jurisdic-
tion Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand.
L. Rev. 1207, 1232-33 (1969).

This approach probably would not work where the optional notice by publication
provision of UCCJA section 5 is relied on, but such notice would not be likely to satisfy
due process in any case.

213Unif. Child Custody Jurisdiction Act §§ 12, 13 & commissioners' notes.
214Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis,

J., concurring).
215
In this event, the existence of in personam jurisdiction would be determined

differently for custody than for the other incidents of the marriage. The court's jurisdiction
for purposes of property division would still be determined under Ind. R. Tr. P. 4.4(A)(7),
but in personam jurisdiction for custody would be decided under Ind. Code. § 31-1-11.6-3

(1982). The minimum contacts tests applied would also be different for custody and for
property.



484 INDIANA LAW REVIEW [Vol. 16:445

VI. Conclusion

If May v. Anderson ever was as great a threat to interstate en-
forcement of custody decrees as its critics envisioned, it has been ef-

fectively neutralized by statute. The UCCJA now requires interstate
enforcement of custody decrees by comity, and the federal statute216

has reinforced this command with a requirement of full faith and
credit. These statutes represent a concensus of both the state and

federal legislatures that custody decisions made by courts having ade-
quate contacts with the child must be readily enforceable interstate.
Faced with such near-unanimity on a question of social and legal policy,

the Supreme Court will have ample incentive to uphold the UCCJA's
jurisdictional standards, if they can be reconciled with the Court's

due process holdings.

The Supreme Court, in recent years, has expressed great concern
both for parental rights and for the rights of nonresident defendants.

These concerns coalesce when the nonresident defendant is a parent
claiming custody of his child. The Court's due process holdings in Shaf-

fer and Kulko require minimum contacts whenever state jurisdiction
is asserted over a nonresident, whether jurisdiction is labeled in rem
or in personam. The Indiana Court of Appeals sought to avoid this
requirement in In re Marriage of Hudson, by holding that custody

jurisdiction comes within the status exception in Shaffer. It is doubt-

ful, however, that the Supreme Court will accept such a blanket
exemption from minimum contacts inquiry for all adjudications of
status.

The need for binding determinations of custody can be reconciled
with the due process rights of absent parents if both the similarities

and the differences between custody and other kinds of cases are taken

into account. A determination of custody by a court competent to make
the decision under UCCJA standards should be accorded prima facie
validity in other states, provided the absent parent has been given

adequate notice of the action. Due process requires, however, that
the absent parent be allowed to raise the defense of lack of minimum
contacts, either in the original proceeding, as in Hudson, or in a subse-

quent enforcement proceeding. If proper consideration is given to the

child's need for a determination of custody and the state's duty to

provide a forum competent to make the determination, this defense
will rarely be successful*

When the minimum contacts defense is successful, it will lead,
in effect, to the conclusion that the absent parent was deprived of
his due process opportunity for a hearing on custody; however, the

result should not be to invalidate the ex parte custody decree. The

216Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (Supp. V 1981).



1983] CUSTODY JURISDICTION 485

denial of the parent's opportunity for hearing can be cured by granting

him a hearing. This new hearing would not be a modification hearing,
at which the absent parent would have the burden of establishing

a change of circumstances, but an original hearing in which the deter-

mination of custody would be made de novo, based upon the best inter-
ests of the child. The hearing can be held in any state that meets
the UCCJA standards and that can obtain participation by both
spouses, without the usual deference to the jurisdiction of the original

custody court.

This approach would serve not only the interests of the absent

parent, but those of the child as well. A full hearing at which both
parents are present is necessary to enable a court to determine the

best interests of the child. There is no need to devalue the absent

parent's rights or undercut the due process holdings of Shaffer and

Kulko, in order to secure automatic enforcement of all ex parte custody

decrees. An appropriate minimum contacts test, properly applied, need
imperil neither the UCCJA nor the welfare of the child.