Indiana Law Review


Indiana Law Review
Volume 28 1994 Number 1

NOTES
A Proposal to End Jurisdictional Competition

in Parent/Non-Parent Interstate Child Custody Cases

Megan Clark*

Introduction

Fortunately, the time has long past when children in our society were considered

the property oftheir parents. Slowly, but finally, when it comes to children even

the law has rid itself of the Dred Scott mentality that a human being can be

considered a piece of property "belonging" to another human being. To hold that

a child is the property of his parents is to deny the humanity of the child.
1

It would be a much simpler world ifchildren were considered their parents' property without

rights of their own. However, trends in the law and psychological studies within the past

twenty-five to fifty years have increased the awareness that children have rights the law

should protect and psychological needs that demand attention.2

In recent years, the volume ofchild custody disputes has increased dramatically.
3
With

the rise of divorce and single parenthood in American society, the number of traditional

families, in which the father supports the mother and children, has substantially declined in

the latter halfofthe twentieth century.
4
Multiple marriages, domestic partnerships and other

non-traditional arrangements inevitably lead to the development of family relationships

between children and non-biological parents living in the same home. 5 It is not surprising

* J.D. Candidate, 1995, Indiana University School of Law—Indianapolis; B.A., 1991 Holy Cross
College, Worcester, Massachusetts. Thank you to Professors Helen P. Garfield and David R. Papke for

guidance in writing this note. Thank you also to the Juvenile Unit of Legal Aid of Western Missouri, in Jackson

County Juvenile Court, whose strong advocacy for children's rights inspired this Note.

1. In re John Doe, 627 N.E.2d 648, 651-52 (111. App. Ct. 1993).

2. See infra subpart LB. See generally Joseph Goldstein, et al., Beyond the Best Interests of

the Child (new ed. with epilogue, 1979). This book was one of the most controversial and influential studies in

the field of children's psychological needs. One of its notable contributions was support for the doctrine of

"psychological parents." The authors argued that children have a strong need to preserve their relationship with

their primary caretaker even if the caretaker is not a biological parent, and that disruption in this disposition can be

very detrimental. See, e.g., id. at 40-42, 48-49, 79.

3. One definition ofa child custody order is "ajudgment, decree, or other order of a court providing for

the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and

modifications." Parental Kidnapping Prevention Act of 1980, 28 U.S.C.§ 1738A(b)(3) (1994).

4. See Rhonda R. Rivera, Our Straight-LacedJudges: The Legal Position ofHomosexual Persons in

the United States, 30 Hastings L.J. 799, 906 n.643 (1979).

5. See generally People v. Hasse, 291 N.Y.S.2d 53, 55 (1968) ("Family" commonly refers to parents



66 INDIANA LAW REVIEW [Vol. 28:65

that these non-biological parental figures have sought custody of children with whom they
have formed "parent-child" relationships.

6
Whether the parties seeking custody are two

biological parents, one parent and one non-parent, or two non-parents, it is rare that either

contestant is clearly the better-suited care-giver.
7
Rather, because of the parties' emotional

attachments to the child in question, each party zealously attempts to persuade the court of

his or her superior qualification as care-giver. Courts struggle to make dispositions, but

emotional pain to the child usually results no matter what the decision.

Interstate custody disputes have traditionally created intractable jurisdictional dilemmas

in two respects: in establishing which state has jurisdiction; and, once that is determined, in

making a custody disposition.
8 The uncertainty does not end there, however. Courts further

grapple with the need to determine which jurisdiction may properly modify the first forum's

decision.
9

Often, a second forum asserts this authority.

Three factors combine to complicate interstate child custody disputes: child custody

decrees are, by nature, often subject to modification when the child's circumstances change;

the fifty states are co-equal sovereigns; and, interstate movement is extremely common. 10

The Uniform Child Custody Jurisdiction Act (UCCJA)," adopted by all fifty jurisdictions

and children, "a group . . . constituting the fundamental social unit in a civilized society."); Hartley v. Bohrer, 1

1

P.2d 616, 618 (Idaho 1932) (Family is defined as a "collective body of persons who form one household, under one

head . . . and who have reciprocal, natural or moral duties to support and care for one another."); Collins v.

Northwest Casualty Co., 39 P.2d 986, 989 (Wash. 1935) (Family "conveys the notion of some relationship, blood

or otherwise.").

6. Partners of biological parents are not the only ones who seek custody. There are many other

arrangements where third parties declare the right to sue for custody, such as relatives or friends with whom a

biological parent has voluntarily placed the child (e.g., Hoy v. Willis, 398 A.2d 109 (N.J. Super. Ct. App. Div.

1978)), foster parents (e.g., In re B.G., 523 P.2d 244 (Cal. 1974)), and prospective adoptive parents where the

adoption fails (e.g. DeBoer v. Schmidt, 502 N.W.2d 649 (Mich. 1993), stay denied sub nom. DeBoer v. DeBoer,

1 14 S. Ct. 1 (1993), stay denied, 1 14 S. Ct. 1 1 (1993)).

7. In disputes between two parents or between two non-parents, the nearly universal standard is the "best

interest interests of the child standard." Eric P. Salthe, Note, Would Abolishing the Natural Parent Preference in

Custody Disputes Be In Everyone 's Best Interest?, 29 J. Fam. L. 539, 539 (1990-1991). For a discussion of the

split among jurisdictions over which standard to apply in parent/non-parent disputes, see infra subpart 1.B.2.C

8. "The United States Supreme Court has failed to remedy the jurisdictional problems that have arisen

in child custody disputes, particularly in regard to the application of full faith and credit principles in such cases."

Thomas Steele, Lemley v. Barn Who Gets Baby Ryan and Who Should Decide?, 89 W. Va. L. Rev. 415, 419

(1987). Although the Court has made known its availability for judicial resolution ofjurisdictional disputes under

the Parental Kidnapping Prevention Act, it has yet to actually do so. See Thompson v. Thompson, 484 U.S. 174,

1 87 (1988). See also infra note 12 and accompanying text.

9. Steele, supra note 8, at 4 1 9.

1 0. Roger M. Baron, Federal Preemption in the Resolution ofChild Custody Jurisdiction Disputes, 45

Ark. L. Rev. 885, 886(1993).

1 1

.

Unif. Child Custody Jurisdiction Act, 9 U.L.A. 123 (1968) [hereinafter UCCJA]. See infra

subpart II. A. All fifty states and the District of Columbia have adopted versions of the UCCJA, with relatively little

alteration to the Uniform Act. See Ala. Code §§ 30-3-20 to -44 (1989); Alaska Stat. §§ 25.30.010 to .910

(1991); Ariz. Rev. Stat. Ann. §§8-401 to -424 (1989 & Supp. 1991); Ark. Code Ann. §§ 9-13-201 to -228

(Michie 1993); Cal. Fam. Code §§ 3400-3425 (West 1994); Colo. Rev. Stat. Ann. §§ 14-13-101 to -126 (West



1 994] INTERSTATE CHILD CUSTODY CASES 67

within the last twenty-five to thirty years, and the federal Parental Kidnapping Prevention Act

of 1980 (PKPA)12 were enacted to create guidelines for establishing jurisdiction for and

granting full faith and credit to interstate child custody disputes. They apply to almost every

interstate custody case.
13

Unfortunately, the Acts do not completely resolve the complicated

jurisdictional problems that arise. The two driving policies of the Acts are to deter

childsnatching and to promote children's best interests. However, these two policies cannot

always be simultaneously accomplished.
14

This Note focuses on jurisdictional uncertainty in child custody cases, which exists

because states follow non-uniform interpretations of the Acts. Jurisdictional uncertainty is

particularly prevalent in cases where one contestant is a non-parent: Non-uniform

interpretation of the Acts is complicated by the difference in forums' law governing

parent/non-parent custody disputes. This Note proposes that courts consider granting a best

interests hearing, even if state law does not require it, in order to prevent other states from

modifying a previous forum's decision on the basis ofthe first forum's refusal to adjudicate

the child's best interests.

1989 & Supp. 1993); Conn. Gen. Stat. Ann. §§ 46b-90 to -1 14 (West 1986), Del. Code Ann. tit. 13, §§ 1901-
1925 (1993); D.C. Code Ann. §§ 16-4501 to -4524 (1989); Fla. St. Ann. §§ 61.1302 to .1348 (West 1985); Ga.

Code Ann. §§ 19-9-40 to -64 (1991); Haw. Rev. Stat. §§ 583-1 to -26 (1993); Idaho Code §§ 32-1 101 to -

1 126 (1983); III. Ann. Stat. ch. 40, para. 2101-2126 (Smith-Hurd 1980 & Supp. 1991); Ind. Code Ann. §§31-
1-1 1.6-1 to -24 (West 1979 & Supp. 1994); Iowa Code Ann. §§ 598A.1 to .25 (West 1981 & Supp. 1994); Kan.
Stat. Ann. §§ 38-1301 to -1326 (1993); Ky. Rev. Stat. Ann. §§ 403.400 to .630 (Michie/Bobbs-Merrill 1984);

La. Rev. Stat. Ann. §§ 13:1700 to :1724 (West 1983 & Supp. 1994); Me. Rev. Stat. Ann. tit. 19, §§ 801-824
(West 1981); Md. Code Ann., Fam. Law §§ 9-201 to -224 (1991); Mass. Gen. Laws Ann. ch. 209B, §§ 1-14

(West 1987); Mich. Stat. Ann. §§ 600.651-.673 (West 1981 & Supp. 1994); Minn. Stat. Ann. §§ 518A.01 to
.25 (West 1990); Miss. Code Ann. §§ 93-23-1 to -47 (1994); Mo. Ann. Stat. §§ 452.440 to .550 (Vernon 1986);

Mont. Code Ann. §§40-7-101 to -125 (1993); Neb. Rev. Stat. §§43-1201 to -1225 (1988); Nev. Rev. Stat.

§§ 125A.010 to .250 (1993 & Supp. 1993); N.H. Rev. Stat. Ann. §§ 458-A:l to :25 (1992); N.J. Stat. Ann.

§§ 2A:34-28 to -52 (West 1987 & Supp. 1994); N.M. Stat. Ann. §§ 40-10-1 to -24 (Michie 1994); N.Y. Dom.
Rel. Law §§ 75-a to -z (McKinney 1988); N.C. Gen. Stat. §§ 50A-1 to -25 (1989); N.D. Cent. Code §§ 14-14-

01 to -26 (1981); Ohio Rev. Code Ann. §§3109.21 to .37 (Anderson 1989 & Supp. 1993); Okla. Stat. Ann.
tit. 43 §§ 501-527 (West 1990); Or. Rev. Stat. §§ 109.700 to .930 (1989); 23 Pa. Cons. Stat. Ann. §§ 5341-

5366 (1991); R.I. Gen. Laws §§ 15-14-1 to -26 (1988 & Supp. 1993); S.C. Code Ann. §§ 20-7-782 to -830
(Law. Co-op. 1985); S.D. Codified Laws Ann. §§ 26-5A-1 to -26 (1992); Tenn. Code Ann. §§ 36-6-201 to -225

(1991); Tex. Fam. Code Ann. §§ 1 1.51 to .75 (West 1986); Utah Code Ann. §§ 78-45c-l to -26 (1992 & Supp.
1994); Vt. Stat. Ann. tit. 15, §§ 1031-1051 (1989); Va. Code Ann. §§ 20-125 to -146 (Michie 1990 & Supp.
1994); Wash. Rev. Code Ann. §§ 26.27.010 to .930 (West 1986); W. Va. Code §§ 48-10-1 to -26 (1992); Wis.

Stat. Ann. §§ 822.01 to .25 (West 1994); Wyo. Stat. §§ 20-5-101 to -125 (1994).

12. 28 U.S.C. § 1738A (1988) [hereinafter PKPA]. See infra subpart II.B.

13. See infra notes 147-49, 166-68 and accompanying text.

14. For a very recent examination of both Acts urging that they be repealed, see Anne B. Goldstein, The

Tragedy ofthe Interstate Child: A Critical Reexamination ofthe Uniform Child Custody Jurisdiction Act and

the Parental Kidnapping Prevention Act, 25 U.C. Davis L. Rev. 845 (1992) (The "heart of the UCCJA's

indeterminacy" is the friction between the goal of flexibility (ability to determine each case individually) and repose

(certainty and finality in adjudications). Id. at 902.).



68 INDIANA LAW REVIEW [Vol. 28:65

I. Jurisdictional Uncertainty

Like many other bodies of law, the law governing interstate child custody decisions has
two paramount goals: flexibility and certainty. Flexibility is required because courts must

respond to varying sets of circumstances, and an appropriate decision must be made in each

particular case. Simultaneously, the law must establish certain, predictable parameters on

individuals' behavior in order to deter childsnatching and achieve a state of repose in

adjudication of child custody disputes.

A. Flexibility vs. Certainty

Analysis of three recent cases reveals the need for both flexibility and certainty in the

adjudication of interstate child custody cases. The cases exhibit that courts in different

forums vary in the emphasis they place on flexibility to determine an equitable outcome, and

on certainty to enforce legal rights. They are similar in that they involve interstate child

custody decisions where one contestant is a non-parent. In cases where both contestants are

biological parents (or both are non-parents), courts uniformly apply a "best interests of the

child" standard.
15

However, where one contestant is a non-parent, forums apply different

standards of law to make the custody disposition. 16

One particularly notable case, which received attention both within and outside of the

legal community, revealed the tension between these two policies: In a quagmire of

jurisdictional complications, the child's best interests may have been undermined in the

interest ofjurisdictional certainty. Although the United States Supreme Court ultimately

declined to hear the case, the dissent from that denial highlighted the incongruity in disputes

over jurisdiction in interstate child custody cases involving non-parent contestants.
17 When

Cara Clausen,
18
a citizen ofIowa, discovered she was pregnant, she did not inform the father,

Daniel Schmidt.
19

Realizing that she was not prepared to care for a baby, she opted for

adoption.
20 When Jessica was born in February, 1991, the man Cara named as the father

signed a release ofhis parental rights.
21 The Iowa court system terminated the parental rights

ofthe mother and putative father, and custody ofthe child was awarded to the prospective

adoptive parents, Roberta and Jan DeBoer, Michigan residents.
22

Nine days later, Cara decided to challenge the termination. The real father's parental

rights had not been terminated because Daniel Schmidt, not the man named on the birth

certificate, was the biological father.23 Daniel filed an affidavit of paternity and moved to

1 5. In re Marriage of Hruby and Hruby, 748 P.2d 57, 62-63 (Or. 1987) (en banc).

16. See infra subpart I. B.2.C.

1 7. DeBoer v. Schmidt, 502 N.W.2d 649 (Mich. 1993), stay denied sub nom. DeBoer v. DeBoer, 1 14

S.Ct. 1 (1993), stay denied, 1 14 S.Ct. 1 1 (Blackmun, J., and O'Connor, J., dissenting).

18. The mother's name is now Cara Schmidt since she married Daniel Schmidt in April 1992.

1 9. In re B.G.C., 496 N.W.2d 239, 24 1 (Iowa 1 992).

20. Id at 240.

21. Id at 241.

22. Id

23. DeBoer v. Schmidt, 502 N.W.2d 649, 652 (Mich. 1993), stay denied sub nom. DeBoer v. DeBoer,

1 14 S. Ct. 1 (1993), stay denied, 1 14 S. Ct. 1 1 (1993).



1 994] INTERSTATE CHILD CUSTODY CASES 69

intervene in the adoption.
24 The DeBoers filed a motion to terminate the parental rights of

Daniel, attempting to show that he was unfit as a parent because he had abandoned two other

children.
25 The Iowa trial court tried the issues of paternity, termination of parental rights,

and adoption, but did not hear arguments nor evidence on the matter of the child's best

interests.
26 The court decreed that Daniel had established that he was the father ofthe child,

and that the DeBoers had failed to prove that Daniel was an unfit parent.
27

Because the

grounds for termination ofDaniel's parental rights under Iowa law had not been fulfilled, the

trial court (in a decision affirmed by the Supreme Court of Iowa) granted custody to him.
28

On remand from the Supreme Court of Iowa, the District Court ordered the DeBoers to
appear with the child on December 3, 1992.

29

Although their attorney informed the court that the DeBoers had received actual notice,

they did not appear at this hearing.
30

Instead, the DeBoers filed a petition the same day in the

Washtenaw Circuit Court in Michigan (the county oftheir residence) to have that court take

jurisdiction under the UCCJA and either enjoin the Iowa order or modify it to give the
DeBoers custody.

31 The court issued a temporary restraining order, and, after a hearing,

found that it had jurisdiction to determine the best interests of the child, which had never

been adjudicated in Iowa.
32 The court concluded that the child should remain with the

DeBoers.
33

However, the Michigan Court ofAppeals reversed, finding that Michigan lacked

jurisdiction under the UCCJA and the PKPA and was mandated to give full faith and credit
to the Iowa decision.

34 When this decision was affirmed by the Supreme Court ofMichigan35

(two and one-halfyears after the adoption petition was filed immediately following Jessica's

birth), the DeBoers complied and relinquished custody.

24. Id.

25. In re B.G.C., 496 N.W.2d 239, 244-45 (Iowa 1 993).

26. DeBoer, 502 N.W.2d at 652-53.

27. Id.

28. In re B.G.C., 496 N.W.2d at 241. Another problem with the release was that Iowa's statutory

requirements were not fulfilled in regards to the waiting period a mother is guaranteed after birth. "It is undisputed

that Cara's release did not satisfy the seventy-two-hour requirement ofsection 600A.4(2Xd)." Id. at 243. See Iowa

Code § 600A.4(2)(d) (1976 & Supp. 1992).
29. DeBoer, 502 N.W.2d at 653.

30. Id. Subsequent to that proceeding, warrants were issued for the arrest ofJan and Roberta DeBoer. Id.

at 653 n.9.

31. Id. at 653.

32. Id. The Iowa courts did not find it necessary to adjudicate the child's interests since the case was

disposed ofon the grounds of failure to meet the statutory requirements for termination of parental rights. In re

B.G.C., 496 N.W.2d 239, 245 (Iowa 1993).

33. DeBoer, 502 N.W.2d at 653.

34. Matter of Clausen, 501 N.W.2d 193, 196-97 (Mich. Ct. App. 1993), off'd sub nom. DeBoer v.

Schmidt, 502 N.W.2d 649 (Mich. 1993), stay denied sub nom. DeBoer v. DeBoer, 1 14 S. Ct. 1 (1993), stay

denied, 1 14 S. Ct. 1 1 (1993).

35. DeBoer, 502 N.W.2d at 668.



70 INDIANA LAW REVIEW [Vol. 28:65

The DeBoers' appeal to United States Supreme Court for a stay of the Michigan order

was denied.
36

Justice Blackmun (joined by Justice O'Connor) dissented from the denial of

stay, noting:

While I am not sure where the ultimate legalities or equities lie, I am sure that I am
not willing to wash my hands of this case at this stage, with the personal
vulnerability of the child so much at risk, and with the Supreme Court of New
Jersey [in the E.E.B. decision] and the Supreme Court ofMichigan in fundamental

disagreement over the duty and authority of state courts to consider the best

interests of a child when rendering a custody decree.37

The case became a cause celebre in the national media. Among other things, the legal
system received criticism for allowing this situation to persist for so long and for disbanding

a very happy trio (Jessica and her adoptive parents).
38

The case highlights the inherent tension in interstate cases governed by the UCCJA and
PKPA. While Michigan's refusal to modify the Iowa decision createsjurisdictional certainty

(in that Michigan did not compete with Iowa for jurisdiction), this refusal may also have
jeopardized the child's best interests. Removal ofa two and one-halfyear old child from the

family with whom she has bonded since birth jeopardizes her psychological welfare.39 In
Jessica's case, certainty of outcome was achieved at the expense of flexibility to reach a

resolution of her best interests. In his dissent from the Michigan Supreme Court decision,

Justice Levin noted that under the PKPA, Congress did not mandate Iowa nor any other

jurisdiction to conduct a best interests hearing since the statute governs only jurisdiction.
40

However, he also asserted that "[i]t does not follow that a decree rendered without

consideration ofthe child's best interests is entitled to enforcement under the PKPA, where

the court rendering the decree declined to exercise jurisdiction to conduct a hearing to

consider whether to modify the decree on the basis ofthe child's best interests,
"4I

It may

be impossible to achieve the right balance between certainty and flexibility in outcome, but

two other cases have found different solutions. In his above-quoted dissent to the denial of

stay, Justice Blackmun relied on two cases analyzed by Justice Levin that interpreted the Acts

36. DeBoer v. DeBoer, 1 14 S. Ct. 1 (1993), DeBoer v. Schmidt, 1 14 S. Ct. 1 1 (1993) (Blackmun, J., and

O'Connor, J., dissenting).

37. DeBoer v. Schmidt, 1 14 S. Ct. 1 1, 1 1-12 (1993). See infra notes 42-48.

38. Members of the media made the unfortunate choice to bring cameras to the actual separation, where

Jessica was carried out of the house, obviously very upset to be leaving her home. See, e.g., Greg Smith, Baby

Jessica Takes to Ne^v Life, New Name, L.A. Times, Aug. 7, 1994, at A10; Geoffrey Cowley, Who 's Looking After

the Interest ofChildren?, Newsweek, August 16, 1993, at 54. As often happens in child custody disputes, neither

side had totally clean hands: Cara committed a fraud on the court by intentionally naming the wrong man as father;

and, the DeBoers were criticized by many people for asserting custody rights for almost three years, even though

they had notice within weeks of the placement that the adoption could fail. If they had relinquished custody earlier,

the separation would have been less traumatic for the child.

39. See generally source noted in supra note 2.

40. DeBoer v. Schmidt, 502 N.W.2d 649, 682 (Mich. 1993) (Levin, J., dissenting), stay denied sub nom.

DeBoer v. DeBoer, 1 14 S. Ct. 1 (1993), stay denied, 1 14 S. Ct. 1 1 (1993). See infra subpart II.B.

41

.

DeBoer, 502 N.W.2d at 682.



1 994] INTERSTATE CHILD CUSTODY CASES 71

more liberally, E.E.B. v. D.A., and Lemley v. Barr.
42

In these two cases, the courts were

willing to consider the child's rights over the parent's rights.

In E.E.B. v. D.A., a 1982 New Jersey Supreme Court case, a mother decided to give her
child up for adoption one month before birth. She and the father, both Ohio residents, signed

releases surrendering custody three days after the child's birth. After birth, the child was

immediately placed with the prospective adoptive parents, who lived in Ohio at the time.

One week after signing the release, the biological mother orally revoked her release of

parental rights to the welfare department. The department did not inform the Ohio Juvenile

Court and the court validated the original consent. The mother then instituted a habeas

corpus proceeding to regain custody of her child.

While appeal ofthe denial of the writ to the Supreme Court of Ohio was pending, the

adoptive parents were transferred to New Jersey. The Supreme Court of Ohio reversed and
remanded, finding that the mother had revoked her consent before the juvenile court

approved her waiver ofrights.
43

However, the adoptive parents challenged the Ohio decision

in the Superior Court ofNew Jersey, Chancery Division. The New Jersey court found that
it had jurisdiction to hold a hearing to determine the child's best interests, and decided that

it was in the best interests of the child to remain with the adoptive parents.44 The decision

was affirmed by the New Jersey Supreme Court, which framed the issue as whether "by
failing to grant a best interest hearing, the Ohio courts declined to exercise jurisdiction to

modify the decree awarding custody to the natural mother."
45 The court reasoned that Ohio's

refusal entitled New Jersey to exercise jurisdiction, and justified its position by noting that
"[t]his result comports with the congressional intent that child custody decisions be made in

the state best able to determine the best interest of the child."
46 The New Jersey court

construed the UCCJA and the PKPA more liberally than the Michigan DeBoer courts did47

in order to render a decision that would promote the child's best interests: The "UCCJA
does not contemplate blind obedience to home state jurisdiction. The state to decide a child

custody dispute is not necessarily the home state, but the one best positioned to make the

decision based on the best interest of the child."
48

Four years later, an Ohio custody order again was challenged in another state—West
Virginia. In Lemley v. Barr, a 1986 case from the Supreme Court of Appeals of West

Virginia,
49

the natural mother signed the parental release twice: once when she was a minor,

and again when she was past the age of eighteen (only one week later). Subsequently, the

mother and her parents (the "Lemleys") tried to revoke the waiver they had executed with

42. Id, referring to: E.E.B. v. D.A., 446 A.2d 871 (N.J. 1982), cert, den., 459 U.S. 1210 (1983); and,

Lemley v. Barr, 343 S.E.2d 101 (W. Va. 1986). See DeBoer, 502 N.W.2d at 671-72, 680-82. For a criticism of

E.E.B. as a violation ofthe policies behind the UCCJA and the PKPA and an inducement to forum shopping, see

Goldstein, supra note 14, at 906-09, 931-32.

43. £.£.£., 446 A.2d at 874.

44. Id.

45. Id. at 877.

46. Id.

47. See supra text accompanying notes 33-35.

48. E.E.B., 446 A.2d at 879. For a more thorough discussion ofthe UCCJA and the PKPA, see infra Part

II.

49. 343S.E.2dl01.



72 INDIANA LAW REVIEW [Vol. 28:65

attorneys for the adoptive parents, and when that proved unsuccessful, instituted a habeas
corpus action. The Ohio Court of Common Pleas found that the mother had signed the
consent under duress, and that since she did not understand the complaint, it was invalid. 50

The Ohio Court of Appeals and the Supreme Court of Ohio both affirmed. 51

The adoptive parents (the "Barrs"), were residents of West Virginia. They had been

aware ofthe Ohio proceedings but intentionally chose not to appear and to continue with the

adoption process in West Virginia. The Lemleys appealed the adoption in the West Virginia

courts. The Supreme Court ofAppeals ofWest Virginia found that under the UCCJA, Ohio
had properly exercised jurisdiction.

52
Therefore, the natural mother had legal custody under

the Ohio decisions. However, the court's analysis went one step further in remanding to the

lower court to decide whether the mother's legal right was outweighed by the child's

equitable rights.
53 The Ohio courts had not adjudicated the child's best interests. The West

Virginia Supreme Court remanded the case for a decision on whether it was in the child's

best interest to remain with the adoptive parents:

The day is long past in the State, if it had ever been, when the right ofa parent

to the custody of his or her child, where extraordinary circumstances are present,

would be enforced inexorably, contrary to the best interest of the child, on the

theory solely ofan absolute legal right. Instead, in the extraordinary circumstance,

when there is a conflict, the best interest of the child has always been regarded as

superior to the right of parental custody. Indeed, analysis of the cases reveals a

shifting of emphasis rather than a remaking of substance. This shifting reflects

more the modern principle that a child is a person, and not a subperson over whom
the parent has an absolute possessory interest. A child has rights too, some of
which are of a constitutional magnitude.

54

The different outcomes of these three cases reveal a startling inconsistency between states

regarding their willingness to acknowledge that adjudication of a child's best interests must

be a part of any custody decision.
55

B. Two-tiered Jurisdictional Uncertainty

These cases resulted in jurisdictional uncertainty because oftwo factors: historically, the

law has been unresolved as to whether child custody decisions warrant full faith and credit

50. Id. at 103.

51. Id.

52. Id. at 106. In the DeBoer case, Justice Levin pointed out that "Lemley did not consider the PKPA, but

since the PKPA is modeled on the UCCJA, and the relevant language is identical, the analysis of the West Virginia

Supreme Court is not to be faulted simply because it did not consider the PKPA separately from the UCCJA."

DeBoer v. Schmidt, 502 N.W.2d 649, 671 n. 18 (Mich. 1993) (Levin, J., dissenting), stay denied sub nom. DeBoer

v. DeBoer, 1 14 S. Ct. 1 (1993), stay denied, 1 14 S. Ct. 1 1 (1993). For a discussion of that case, see supra notes

1 7-42 and accompanying text.

53. Lemley, 343 S.E.2d at 109.

54. Id. (quoting Bennett v. Jeffreys, 356 N.E.2d 277, 28 1 (N.Y. 1 976) (citations omitted)).

55. It is beyond the scope of this Note to advocate one of these positions over another. Rather, it is

sufficient to note that courts vary in their willingness to balance children's rights against parents' rights. Because

of this discrepancy, some jurisdictions are more willing than others to modify a child custody decision.



1 994] INTERSTATE CHILD CUSTODY CASES 73

under the Constitution; and, from state to state, the legal standard applied to parent/non-

parent child custody disputes differs. The combination ofthese two factors makes it difficult

for courts to reach a disposition that is both legally and equitably sound. In other words, this

combination of factors makes it hard for courts to strike a balance between certainty and

flexibility in their adjudication of these cases.

/. Historic Full Faith and Credit Problems.—The historic lack of full faith and credit

in child custody decisions led to two results: seize-and-run behavior and forum shopping. 56

A noncustodial individual would "seize" a child and "run" to a forum that was likely to
modify a previous custody order and place the child in that individual's custody. Although

kidnapping is often attributed to strangers who abduct children for evil motives, a far more

typical scenario occurs when the abductor, although not acting in good faith, is a family

member or pseudo-family member (parent, step-parent, grandparent, prospective adoptive

parent in a failed adoption, etc.) with at least a quasi-right to custody.
57

Parental kidnapping

has been characterized as "one of the most subtle and brutal forms of child abuse."
58

Formerly, it was not uncommon for such a person to obtain a custody decree in their favor

in a second forum, using the child's presence in the state as a basis for jurisdiction, even if

the child had been wrongfully removed from the legal custodian and had minimal contacts

with the second forum. Before the enactment ofthe UCCJA and the PKPA, enforcement of
interstate child custody orders was loosely based on principles ofcomity,

59
but there was very

little uniformity in enforcement of interstate orders. Rather, unfettered jurisdictional

competition prevented a state of repose in custody determinations.

One commentator has pointed to two pervasive problems that existed prior to the

UCCJA and the PKPA in child custody decisions where all parties did not live in the same
state: too many interested forums and too little interstate deference:60

56. See Brigitte M. Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction

under the UCCJA, 14 Fam. L.Q. 203, 203-04 (1981) (Professor Bodenheimer, the Reporter for the Special

Committee appointed by the National Conference ofCommissioners to draft the UCCJA, was instrumental not only

in drafting the Act, but in lobbying for its enactment in many jurisdictions.). See also UCCJA, Table of

Jurisdictions, Prefatory Note, paras. 1-6. For an explanation of the National Conference of Commissioners, see

infra note 139.

57. See, e.g., Norsworthy v. Norsworthy, 713 S.W.2d 451 (Ark. 1986); Nehra v. Uhlar, 372 N.E.2d 4

(N.Y. 1977).

58. Moving to Stop Child Snatching, Time, Feb. 27, 1978, at 85 (quoting psychologist Dr. Philip Weeks).

59. Comity has been defined as "[cjourtesy; complaisance; respect; a willingness to grant a privilege, not

as a matter of right, but out of deference and good will." Black's Law Dictionary 267 (6th ed. 1990).

60. Goldstein, supra note 14, at 864-68. Additionally, the United States Congress made the following

statement about the problem in the existing system, which prompted enactment of legislation:

(a) The Congress finds that

—

(1) there is a large and growing number ofcases annually involving disputes between persons

claiming rights of custody and visitation of children under the laws, and in the courts, of

different States, the District ofColumbia, the Commonwealth ofPuerto Rico, and the territories

and possessions of the United States;

(2) the laws and practices by which courts of those jurisdictions determine their jurisdiction to

decide such disputes, and the effect to be given the decisions of such disputes by the courts of

other jurisdictions, are often inconsistent and conflicting;



74 INDIANA LAW REVIEW [Vol. 28:65

[T]he problem is imbedded in the very structure of our legal system. . . .

Some form ofthe problem is inherent in a federal system like ours, which allocates
child custody adjudication to autonomous state tribunals, so long as custody

litigants, like other citizens, may move freely from state to state, and our courts
continue to use the best interests ofthe child—or any other indeterminate test—to
reach custody decisions that are modifiable during the child's's minority.

61

The United States Supreme Court has always recognized that the field of family law is a

matter of state law in which the federal government will not interfere.62

(3) those characteristics ofthe law and practice in such cases, along with the limits imposed by

a Federal system on the authority ofeach such jurisdiction to conduct investigations and take

other actions outside its own boundaries, contribute to a tendency of parties involved in such

disputes to frequently resort to the seizure, restraint, concealment, and interstate transportation

ofchildren, the disregard ofcourt orders, excessive relitigation ofcases, obtaining of conflicting

orders by the courts ofvarious jurisdictions, and interstate travel and communication that is so

expensive and time consuming as to disrupt their occupations and commercial activities;

and

(4) among the results of those conditions and activities are the failure of the courts of such

jurisdictions to give full faith and credit to the judicial proceedings of other jurisdictions, the

deprivation of rights of liberty and property without due process of law, burdens on commerce

among such jurisdictions and with foreign nations, and harm to the welfare ofchildren and their

parents and other custodians.

(b) For those reasons it is necessary to establish a national system for locating parents and children who

travel from one such jurisdiction to another and are concealed in connection with such disputes, and

to establish national standards under which the courts of such jurisdictions will determine their

jurisdiction to decide such disputes and the effect to be given by each such jurisdiction to such

decisions by the courts of other such jurisdictions.

(c) The general purposes of sections 6 to 10 of this Act ... are to

—

(1) promote cooperation between State courts to the end that a determination of custody and

visitation is rendered in the State which can best decide the case in the interest of the child;

(2) promote and expand the exchange of information and other forms of mutual assistance

between States which are concerned with the same child;

(3) facilitate the enforcement of custody and visitation decrees of sister States;

(4) discourage continuing interstate controversies over child custody in the interest of greater

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

(5) avoidjurisdictional competition and conflict between State courts in matters of child

custody and visitation which have in the past resulted in the shifting ofchildrenfrom State

to State with harmful effects on their well-being; and

(6) deter interstate abductions and other unilateral removals of children undertaken to obtain

custody and visitation awards.

Parental Kidnapping Prevention Act, Pub.L. No. 96-61 1, 94 Stat. 3568 § 7 (1980) (emphasis added).

61

.

Goldstein, supra note 14, at 853-54.

62. "[Tjhe whole subject of the domestic relations of husband and wife, parent and child, belongs to the

laws of the States and not to the laws of the United States." Rose v. Rose, 481 U.S. 619, 625 (1987) (quoting Ex

Parte Burrus, 136 U.S. 586, 593-94 (1890)).



1 994] INTERSTATE CHILD CUSTODY CASES 75

Historically, the first problem is that in interstate custody decisions, there are too many

interested forums. For example, consider a case where a single mother informally places her

child with her parents for two to three years while she finishes her education. The

grandparents move to another state shortly after the mother places the child with them.

When the mother returns for the child, if the grandparents refuse to relinquish custody, two
states have an interest in the outcome ofthe case: the state where the child was born, and the

state where the child now lives. Additionally, the grandparents, who have retained custody,
would naturally have a serious claim on the child's affection the longer they remained

together. As "[m]ost American children are integrated into an American community after

living there six months,"
63

it could be very detrimental to force the child to leave his or her

home. There is an infinite number ofpossible scenarios where more than one state would

be interested in the outcome of custody litigation. Such situations inevitably arise because

of state-to-state mobility is so common.

The second historical problem with child custody litigation prior to the UCCJA and the
PKPA is closely related to the first. Because there were many interested forums, often there
were multiple and conflicting custody orders. If a party did not like the outcome in one

decision, they simply went to another state and got another order. If the party deprived of

custody did the same thing, the struggle could continue for years and harm to the child was

certain to follow.
64 The drafters of the UCCJA noted that the trend had been to allow

"custody claimants to sue in the courts ofalmost any state, no matter how fleeting the contact

ofthe child and the family was with the particular state, with little regard to any conflict of

law rules."
65

Child custody orders historically have presented a full faith and credit
66
problem

because, as the drafters of the UCCJA noted, "the Supreme Court has never settled the
question whether the full faith and credit clause of the Constitution applies to custody

decrees."
67

States modified other states' orders even when it was clear that other states at

least potentially had jurisdiction.
68

Even assuming full faith and credit applies to custody orders, the second forum need

only enforce ajudgment to the extent that it would be enforced in the first forum. However,

by their very nature, custody orders are non-final.
69 The doctrine of changed circumstances

allows a court to modify a custody disposition in response to new circumstances in the child's

life.
70

If a party could show changed circumstances, the second court could decide that the

63

.

Leonard G. Ratner, Child Custody in a Federal System, 62 Mich. L. Rev. 795, 8 1 8 ( 1 964). See text

accompanying infra note 134.

64. See UCCJA, Table of Jurisdictions, Prefatory Note, paras. 1-6.

65. Id. at para. 4.

66. "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings

of every other State." U.S. Const, art. IV. § 1 cl. 1. See Note, Ford v. Ford: Full Faith and Credit to Custody

Decrees?, 73 Yale L.J. 134 (1963).

67. UCCJA, Table of Jurisdictions, Prefatory Note, para. 4.

68. Christopher L. Blakesley, Child Custody—Jurisdiction and Procedure, 35 Emory L.J. 291, 293
(1986).

69. See Homer H. Clark, The Law Of Domestic Relations in the United States 460 ( 1 988).

70. See id.



76 INDIANA LAW REVIEW [Vol. 28:65

first forum would have modified the order.
71

Again, the law rewarded parties who engaged
"seize-and-run" activity and forum shopping.

72

The Supreme Court has only once considered whether full faith and credit extends to

custody decisions. In the 1953 case of May v. Anderson,13 the Court held, in a plurality
opinion, that an Ohio court was not required to grant full faith and credit to a Wisconsin

decree since Wisconsin did not have personal jurisdiction over the mother.
74

In essence,

protection of the parents' rights of due process superseded the child's need for stability.

Since personal jurisdiction requires minimum contacts with a forum,75 as long as a parent
avoided minimum contacts with a forum, it could not obtain personal jurisdiction over the
parent, and no state of repose in custody could be achieved. In May v. Anderson, not only
could the mother prevent enforcement of the Wisconsin decree by avoiding contact with

Wisconsin, but she could obtain a more favorable order in a state in which she was subject

to personal jurisdiction.

Justice Frankfurter concurred
76

in an influential opinion
77

that clarified the scope of the

plurality opinion. He noted that, although the Full Faith and Credit Clause did not require

Ohio to recognize Wisconsin's decision, Ohio was not prevented from doing so by due

process considerations, especially since the Ohio Supreme Court had felt that it was bound

to do so.
78

Hence, if a state chose to enforce another state's order, the state could do so, but

only under principles ofcomity.
79
Although prevalent before May, forum shopping increased

dramatically after this decision was handed down.
80 More than one party could be guilty of

this strategy: "Even when'parental kidnapping' was not involved, one or both divorced

spouses often moved and sought a different custody order from their new state of residence.

The result, seen with depressing frequency, was conflicting custody orders from two states,

neither willing to concede the exclusive custody jurisdiction of the other."
81

71. See New York ex rel Halvey v. Halvey, 330 U.S. 610, 614 (1947) (The rationale for the changed

circumstances doctrine is that the child's best interests must be met. If circumstances change, the original decision

may no longer further the child's interest. See UCCJA, Table of Jurisdictions, Prefatory Note, para. 4.).

72. See UCCJA, Table of Jurisdictions, Prefatory Note, para. 6.

73. 345 U.S. 528(1953).

74. Id. at 528-29.

75. See International Shoe Co. v. Washington, 326 U.S. 310 (1945).

76. May, 345 U.S. at 535-36. Justice Frankfurter's concurrence influenced the drafters of the UCCJA.

See infra notes 141-42 and accompanying text.

77. See infra notes 141-43 and accompanying text.

78. May, 345 U.S. at 535-36.

79. See supra note 59 for a definition of "comity."

80. Andrea S. Charlow, Jurisdictional Gerrymandering and the Parental Kidnapping Prevention Act,

25 Fam. L.Q. No. 3 299, 303 (1991). See also Albert A. Ehrenzweig, Interstate Recognition ofCustody Decrees,

51 Mich. L. Rev. 345, 358 (1953); Dale F. Stansbury, Custody and Maintenance Law Across State Lines, 10

Law & Contemp. Probs. 8 1 9, 828-29 ( 1 944).
8 1

.

Michalik v. Michalik, 494 N.W.2d 391, 393 (Wis. 1993) (citation omitted). See also State ex rel.

Valles v. Brown, 639 P.2d 1 181, 1 184 (N.M. 1984) (The Supreme Court of New Mexico noted the long line of

New Mexico cases, which, prior to the PKPA, permitted New Mexico to "modify an out-of-state issued child

custody decree based solely on the physical presence of the child and a substantial change of circumstances.").



1 994] INTERSTATE CHILD CUSTODY CASES 77

2. Parent/Non-Parent Disputes.—The need to balance a child's best interests against
a contestant's legal right to custody is particularly troublesome in cases where one contestant

is a parent and one is a non-parent. In these cases, the law presumes that the parent is

entitled to custody. However, this presumption is stronger in some forums than others.

Combined with varying interpretations ofthe UCCJA and the PKPA from forum to forum,82

courts are prone to modify other forums' custody decisions, and adjudicate them under the

standard their own forum applies to a parent/non-parent custody dispute.

Dating back to Roman law, fathers were considered to own their children, including the

right of life and death over them.
83

However, beginning in the late nineteenth century, the

law evolved toward recognition ofchildren's rights, which sometimes stand in contradiction

to their parents' rights.
84 The classic example of this conflict is the abused child who is

removed from the home by the state. No matter how strong the right of a parent to raise his
or her biological children, everyjurisdiction today has a legal standard for removal ofabused

children.
85

In custody disputes between two parents or between two non-parents, the

universal standard applied by courts is the "best interests of the child" standard;
86
however,

in a dispute between a parent and a non-parent, no consensus exists among states as to what

standard to apply. Parent/non-parent cases add a layer of friction to interstate custody

decisions. Not only do courts encounter the tension inherent in the UCCJA and the PKPA
themselves,

87
but due to the disparate substantive standards of law, a second forum might be

determined to reach the merits of the case and decide it differently from the first forum.

a. Rights offamily andchild.—Any discussion ofthe rights offamily and child requires
a definition of "family."

88 The legal definition of "family" continues to evolve, with an

increasing emphasis on relational rather than biological links between caregiver and child.

United States Supreme Court Justice Rutledge noted in Prince v. Commonwealth of
Massachusetts,*

9
a 1944 case, that the constitutionally-protected sphere of family privacy,

which the state cannot enter, includes the right of a biological parent to raise his or her

child.
90

Limits on that sphere include the state's right to mandate school attendance and

attention to the child's medical needs.
91

In the 1977 case ofSmith v. Organization ofFoster

82. See infra Part II.

83. 2 William Blackstone, Commentaries *452. See generally, Michael Grossberg, Governing

the Hearth 234-43 (1985) (explaining the shift in the law from paternal property rights in children to standards

focusing more on the child's best interests).

84. Suzette M. Haynie, Note, Biological Parents v. Third Parties: Whose Right to Custody is

Constitutionally Protected?, 20 Ga. L. Rev. 705, 706-07 (1986).

85. See Marjorie R. Freiman, Note, Unequal and Inadequate Protection Under the Law: State Child

Abuse Statutes, 50 Geo. Wash. L. Rev. 243, 272 (1982).

86. In re Marriage of Hruby and Hruby, 748 P.2d 57, 62-63 (Or. 1 987) (en banc) ("[l]n custody disputes

between natural parents or between parents unrelated to the children, the interests of the children are more nearly

the exclusive determinants of the custody determination. This is because the competing custodial rights tend to

cancel each other, leaving only the interests of the children as relevant considerations.").

87. See infra Part II.

88. See supra note 5.

89. 321 U.S. 158(1944).

90. Id. at 165.

91. Id. at 165-66.



78 INDIANA LAW REVIEW [Vol. 28:65

Familiesfor Equality and Reform,
92

the Court clarified that within the sphere of privacy,

"freedom of personal choice in matters of. . . family life is one of the liberties protected by

the Due Process Clause of the Fourteenth Amendment."93 With that threshold, the Court
further analyzed whether a foster family qualified for due process protection. The Court

noted that while "family" generally "implies biological relationships . . . biological

relationships are not exclusive determination of the existence of a family . . . [and] the

importance of the familial relationship, to the individuals involved and to the society, stems

from the emotional attachments that derive from the intimacy of daily association."
94 The

Court indicated that relationship, and not merely biology, creates a family.
95

The relationship-biology analysis calls into question the existence of a family where a

biological link, but no relationship, exists between parent and child. One commentator

proposed that recent Supreme Court cases have suggested "that the Constitution protects the

actual family relationship rather than the biological relationship."
96

In the 1978 Quilloin v.

Walcott decision,
97

the natural father of a child born out of wedlock had never attempted to

acknowledge the child legally as his own, had maintained only an irregular relationship with

the child, and had born very little responsibility for the child's upbringing. The Court held

that adoption of the child by his stepfather over the biological father's objections did not

violate the biological father's due process rights, especially since an existing family unit

would thereby be fully recognized.
98 The Court allowed the best interests of the

child—determined at the trial level as adoption by the stepfather—to supersede the natural
father's rights.

99

Using a similar line of reasoning, the Court found in the 1983 case of Lehr v.

Robertson
100

that since the father of a child born out of wedlock had never formed a

"substantial relationship" with his daughter, his due process rights were not violated when

the state failed to notify him of his daughter's adoption.
101

Although the state knew the

father's whereabouts, he had failed to protect his legal right to notice of the adoption by

registering with the putative father registry. By contrast, in Caban v. Mohammed™2 a 1979
case, both unwed parents made substantial attempts to support and rear the children. The

Court upheld the parents' constitutional rights to raise a family.
103

These cases reveal that

biological links between parent and child are not necessarily enough to create a family. The

92. 431 U.S. 816(1977).

93. Id. at 842 (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974)).

94. Id. at 843-44.

95. Id. at 844. The Court ultimately held that foster family relationships are entitled to only a very limited

due process protection since they derive solely from statute. Id. at 846.

96. Haynie, supra note 84, at 706.

97. 434 U.S. 246(1978).

98. Id. at 255.

99. Id.

100. 463 U.S. 248(1983).

101. Id. at 266-67.

102. 441 U.S. 380(1979).

103. Id. at 394.



1 994] INTERSTATE CHILD CUSTODY CASES 79

parents must also acknowledge the existence of family. In fact, "[t]he rights to conceive and

to raise one's children have been deemed 'essential.'"
104

The rights of children are likewise protected under the Constitution. For example, the

Supreme Court has held that children have constitutional rights under the First

Amendment,
105

a property right in education protected by the Due Process Clause,'06 rights

under the Fourteenth Amendment and Bill of Rights to counsel, confrontation, and cross-

examination of witnesses,
107

and the right to have a crime ofwhich they are accused proven

beyond a reasonable doubt.
108

Moreover, the Third Circuit has stated that "[t]he existence

ofa'best interests ofthe child' standard, often used in domestic custody disputes, is a further

recognition that minors have interests and constitutional rights separate from those of the

parents."
109 The differences from state to state between standards governing parent/non-

parent custody disputes hinge on policy choices made by state law as to which set of rights

is more heavily weighted—parents' or children's. 110
b. Standing to sue.—The question ofstanding depends on whether the party has alleged

a sufficient personal stake in the outcome ofthe controversy.
111

It has been said that a "non-

parent who has a significant connection with the child had standing to assert a claim for

custody."
1 12 Under the UCCJA and the PKPA, a "contestant" to an interstate custody action

is defined very simply as a person who claims a right to physical custody or visitation, with

no requirement that the contestant claim under color of law.
113 The DeBoer dissent

contended that the DeBoers did have standing to sue, pointing out the language ofthe PKPA
and the UCCJA that a party must have had custody of a child in the past and that the Iowa
decision contrary to the DeBoers' wishes did not automatically strip them oftheir right to sue

for custody.
114

However, the Supreme Court of Michigan affirmed the Court of Appeals'

104. Meyer v. Nebraska, 262 U.S. 390, 399 (1923). See also Pierce v. Society of the Sisters of the Holy

Names of Jesus and Mary, 268 U.S. 510, 534-35 (1925).

105. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969).

106. Goss v. Lopez, 419 U.S. 565, 573-74 (1975).

107. In re Gault, 387 U.S. 1, 29-31 (1967).

108. In re Winship, 397 U.S. 358, 368 (1970).

109. Lehman v. Lycoming County Children's Servs. Agency, 648 F.2d 135, 153 (3d Cir. 1981), affd, 458

U.S. 502(1982).

1 10. See infra subpart I.B.2.C. for a discussion of these standards and the policies behind them.

111. Flast v. Cohen, 392 U.S. 83, 99 ( 1 968) (citations omitted). A recent Wisconsin case stated that a third
party has standing to seek custody of a child if two conditions are met: "[FJirst, an'underlying action affecting the

family unit has been previously filed'; and second, the child's family is nonintact, so that it may be in the child's

best interests to order visitation'to mitigate the trauma and impact of [the] dissolving family relationship.'" In re

Marriage of Cox v. Williams, 502 N.W.2d 128, 130 (Wis. 1993) (quoting Wis. Stat. Ann. § 767.245 (West

1988)).

1 1 2. Buness v. Gillen, 78 1 P.2d 985, 988 (Alaska 1989) (stepfather who had voluntarily paid child support

had standing to sue for custody). Accord J. Atkinson, Modern Child Custody Practice § 8.04 at 4 1 3 ( 1 986)

("Most states, by statute or case law, allow a nonparent standing to assert a claim for custody, at least if the

nonparent has significant connections with the child."); see Clark, supra note 69, § 19.6 at 820-21.

113. See infra note 1 45

.

1 14. DeBoer v. Schmidt, 502 N.W.2d 649, 684 (Mich. 1993), stay denied sub nom. DeBoer v. DeBoer,

1 14 S.Ct. 1 (1993), stay denied, 1 14 S.Ct. 1 1 (1993).



80 INDIANA LAW REVIEW [Vol. 28:65

holding that the DeBoers lacked standing to sue because they had been stripped of any

legally-protected interest before they filed the Michigan petition." 5

Non-parents who wish to sue for custody ofa child acquire standing to do so where they
have played at least a quasi-parental role with the child in the past. The following types of

persons fill a parental role:
116

(i) Psychologicalparents.—One expert has asserted that "[o]nly a parent who provides
for these [daily emotional, physical and psychological] needs will build a psychological

relationship to the child on the basis ofthe biological one and will become his'psychological

parent' in whose care the child can feel valued and * wanted.' An absent biological parent
will remain, or tend to become, a stranger."

117
In Hoy v. Willis, a 1978 case from the

Appellate Division ofthe New Jersey Superior Court, a child's foster mother (who was also
the child's aunt), with whom the biological mother had voluntarily placed the child for two
years, had standing to sue for custody as the child's psychological parent.

118 An expert
testifying during the case replied affirmatively when asked this question:

Ifa couple kidnapped an infant, kept it for four years and within that four years

they became the psychological parents of the child and if both the parents and the

kidnappers were equal in all respects would it be in the best interests of the child

to continue custody with the kidnappers?
119

The bond between psychological parents and children has been protected by courts:

"[Disruption ofthis relationship can be even more traumatic and devastating on occasion

than severing the tie with the natural parent."
120

Removal from the psychological parents has

even been found to suggest a showing of clear detriment.
121

Standing in stark contrast to the

proposition that children are the property oftheir parents, the doctrine has been invoked to

support placement of a child with his or her psychological parents rather than his or her

biological parents.

(it) Equitable parents.—A Michigan court invoked this doctrine to allow a man, who
was married to the biological mother and had always maintained a father-son relationship

with her son, to adopt him.
122 The man wanted to maintain the rights and obligations of

fatherhood.
123

(Hi) Functionalparenthood—Functional parenthood arises where the relationship is
legally created with the intention that it be a parent-child relationship, such as the foster

1 15. Matter ofClausen, 501 N.W.2d 193, 197 (Mich. Ct. App. 1993), affdsub nom. DeBoer v. Schmidt,

502 N.W.2d 649 (Mich. 1993), stay denied sub nom. DeBoer v. DeBoer, 1 14 S.Ct. 1 (1993), stay denied, 1 14

S.Ct. 11(1993).

1 16. See Sheila McKeown, Traditional Custody Decisions vs. Modern Nonparental Challenges, 13 J.

Juv. L. 42(1992).

1 1 7. Goldstein et al., supra note 2, at 1 7.

118. 398A.2dl09.

119. Id. at 111-12.

1 20. Doe v. Doe, 399 N.Y.S.2d 977, 982 (N.Y. Sup. Ct. 1 977).

121. Buness v. Gillen, 78 1 P.2d 985, 989 n.8 (Alaska 1 989). See also Sorentino v. Family & Children's
Soc. of Elizabeth, 367 A.2d 1 168, 1 171 (N.J. 1976).

122. Atkinson v. Atkinson, 408 N.W.2d 516 (Mich. Ct. App. 1987), appeal denied, 492 Mich. 884 (1987).

123. Id.



1 994] INTERSTATE CHILD CUSTODY CASES 8

1

parent relationship. In the 1974 case In Re B.G.,
]24

the California Supreme Court recognized

that foster parents have standing to sue for custody.
125

(iv) Domestic partnerships.—In domestic partnerships, two unmarried persons enjoy
a marriage-like relationship. So far, however, co-parenting agreements drawn between them

have not been generally recognized.
126

c. Parental rights vs. best interests ofchild—Parent/non-parent cases can be very

difficult for courts because the parents' wishes or rights may be contrary to the child's best

interests. Factors courts have considered in determining which claimant will prevail include:

the length oftime (if any) the child has been in the care ofthe nonparent; the child's wishes;

the child's relationship with other family members; the number of siblings in either

household; the child's involvement in school and community; and, the health of all persons

concerned.
127

Courts historically have taken one of three positions in response to parent/non-parent

custody disputes. Eight jurisdictions apply a parental rights standard, holding that unless

proven unfit by clear and convincing evidence, the biological parent is entitled to custody of

the child as against any nonparent custodian.
128

Twenty-seven jurisdictions apply

presumptions in favor ofthe biological parent but the burden on the nonparent is not as great

as under the parental rights standard.
129

Finally, twelve jurisdictions simply apply a best

124. 523 P.2d 244 (Cal. 1974).

125. Id. at 254.

126. See, e.g., In re K.Z.H., 471 N.W.2d 202 (Wis. 1991) (The court held that a single woman had no

standing to sue for custody ofthe minor son of her former partner of eight years under the doctrines of equitable

parent and defacto parent nor under a co-parenting agreement she and her partner had signed). See also Nancy

S. v. Michele G., 228 Cal.App.3d 831 (1991) (A former domestic partner was entitled to visitation only upon the

biological mother's consent.); A.C. v. C.B., 829 P.2d 660 (N.M. Ct. App. 1992) (co-parenting agreement held

unenforceable due to procedural errors in the case).

127. See Kan. Stat. Ann. § 60-16 10(b)(2) (1983).

128. See Buness v. Gillen, 781 P.2d 985 (Alaska 1989); In re D.A. McW., 460 So. 2d 368 (Fla. 1984);

Blackburn v. Blackburn, 292 S.E.2d 821 (Ga. 1982); McGregor v. Phillips, 537 P.2d 59 (Idaho 1975); In re

Guardianship of Williams, 869 P.2d 661 (Kan. 1994); Stoker v. Huggins, 471 So. 2d 1228 (Miss. 1985): Pierce

v. Pierce, 645 P.2d 1353 (Mont. 1982); Grover v. Phillips, 681 P.2d 81 (Okla. 1984).

129. See Ex Parte Mathews, 428 So. 2d 58 (Ala. 1983); Bryan v. Bryan, 645 P.2d 1267 (Ariz. Ct. App.

1982); Perkins v. Perkins, 589 S.W.2d 588 (Ark. Ct. App. 1979), petition denied, 589 S.W.2d 29 (Ark. 1979);

In re Angelica M., 170 CaI.App.3d 210 (1985); In re Estate of Becton, 474 N.E.2d 1318 (III. App. Ct. 1985);

Hendrickson v. Binckley, 316 N.E.2d 376 (Ind. Ct. App. 1974), cert, denied, 423 U.S. 868 (1975); McNames

v. Corum, 683 S.W.2d 246 (Ky. 1984); Boyett v. Boyett, 448 So. 2d 819 (La. Ct. App. 1984); Ross v. Hoffman,

372 A.2d 582 (Md. 1977); Freeman v. Chaplic, 446 N.E.2d 1369 (Mass. 1983); Zuziak v. Zuziak, 426 N.W.2d

761 (Mich. Ct. App. 1988); Westphal v. Westphal, 457 N.W.2d 226 (Minn. Ct. App. 1990); In re K.K.M., 647

S.W.2d 886 (Mo. Ct. App. 1983); Nye v. Nye, 329 N.W.2d 346 (Neb. 1983); Fisher v. Fisher, 670 P.2d 572 (Nev.

1983); In re D.T., 491 A.2d 7 (N.J. Super. Ct. App. Div. 1985); Brito v. Brito, 794 P.2d 1205 (N.M. Ct. App.

1990); Merritt v. Way, 446 N.E.2d 776 (N.Y. 1983); Plemmons v. Stiles, 309 S.E.2d 504 (N.C. Ct. App. 1983);

In re Perales, 369 N.E.2d 1047 (Ohio 1977); In re Marriage of Hruby and Hruby, 748 P.2d 57 (Or. 1987) (en

banc); Ferencak v. Moore, 445 A.2d 1282 (Pa. Super. Ct. 1982); Mayer v. Mayer, 397 N.W.2d 638 (S.D. 1986);

Bonwich v. Bonwich, 699 P.2d 760 (Utah 1985), cert, denied, 474 U.S. 848 (1985); Patrick v. Byerley, 325

S.E.2d 99 (Va. 1985); In re Marriage of Allen, 626 P.2d 16 (Wash. Ct. App. 1981); Barstad v. Frazier, 348



82 INDIANA LAW REVIEW [Vol. 28:65

interests standard factoring in the parent's right to custody in balancing all the interests

affecting the child.
130 The standard a jurisdiction adopts reflects a policy choice about how

much to protect the parent's rights to raise their biological children versus how much to
promote the child's best interest if the court finds that the child's best interests conflict with

the parents' rights.

(i) Parental rights.—The parental rights theory, the traditional view of the law toward
parent-child rights, has been justified by the following rationale:

Putting the matter in another way, it is quite correct to say that the welfare of

children is always a matter of paramount concern, but the policy of the state

proceeds on the theory that their welfare can best be attained by leaving them in the

custody of their parents and seeing to it that the parents' right thereto is not

infringed upon or denied. . . . And no court should construe its intrusive
jurisdiction as extending to cases where parents have done nothing offensive to law,

morals, or good conduct, which would forfeit their paramount natural right of

parenthood, which is to have the custody of their own children. ,31

The value of the parental rights doctrine is that it provides certainty in the law. The

presumption in favor of parents is so strong that non-parents are discouraged from suing for

custody because courts will almost always decide in favor of the biological parents.

However, the rigidity of the strict parental rights standard has been criticized for

exhibiting a startling lack ofconcern for the interests ofthe children.'
32 Even ifthe child has

spent a substantial amount oftime with a non-parent custodian and has significantly bonded

with that individual, courts applying this standard will return the child to the natural parent,

causing disruption to the child, unless the nonparent can prove the biological parent unfit by

clear and convincing evidence. One commentator noted that this standard is "based on an

almost mystical belief in the superiority of biological parents."
133

(ii) Best interests ofthe child.—-Whereas the parental rights jurisdictions heavily weight
the legal right of a parent to raise their child, courts applying the best interests standard are

N.W.2d 479 (Wis. 1984).

130. See Hawaii Rev. Stat. § 571-46(2) (1976); In re C.C.R.S., 872 P.2d 1337 (Colo. Ct. App. 1993),

cert, granted (May 9, 1994); McGaffin v. Roberts, 479 A.2d 176 (Conn. 1984), cert, denied, 470 U.S. 1050

(1985); D. v. Z., 414 A.2d 21 1 (Del. Super. Ct. 1980); In re Marriage of Reschly, 334 N.W.2d 720 (Iowa 1983);

Costigan v. Costigan, 418 A.2d 1 144 (Me. 1980); Stanley D. v. Deborah D., 467 A.2d 249 (N.H. 1983); Patzer

v. Glaser, 368 N.W.2d 561 (N.D. 1985); Cook v. Cobb, 245 S.E.2d 612 (S.C. 1978); Yancey v. Koonce, 645

S.W.2d 861 (Tex. Ct. App. 1983); Florida, Dep't of Health and Rehab. Servs. ex ret. State Dep't of Human Servs.

v. Thornton, 396 S.E.2d 475 (W. Va. 1990); Elm v. Key, 480 P.2d 104 (Wyo. 1971).

131. /« n? Kailer, 255 P. 41, 42 (Kan. 1927).

132. "Courts adhering to the parental-right doctrine are also ignoring the contemporary psychological

research holding that psychological, not biological, ties are the ones that bind a child to an adult." Michael B.

Thompson, Child-Custody Disputes Between Parents and Non-Parents: A Plan for the Abrogation of the

Parental-Right Doctrine in South Dakota, 34 S.D. L. Rev. 534, 572 (1989).

133. Sandra R. Blair, Jurisdiction, Standing, and Decisional Standards in Parent/Non-Parent Custody

Disputes, In re Marriage of Allen, 28 Wn.App. 637, 626 P.2d 16 (1981), 58 Wash. L. Rev. 115-16 (1982). See

Behn v. Timmons, 345 So. 2d 388, 389 (Fla. Dist. Ct. App. 1977) (A biological parent has "a natural God-given

legal right to enjoy the custody, fellowship and companionship of his offspring.").



1 994] INTERSTATE CHILD CUSTODY CASES 83

willing to consider the child's rights over the parents'. In a pure best interests jurisdiction,

courts weigh all the factors affecting a child's custody disposition, including the legal rights

of other parties, and decide what is best for the child in that particular case. To be sure, it

is a highly indeterminate, fact-sensitive standard.

The benefit of considering the child's best interests above all is that the law thereby

allows enough flexibility to decide each case individually. Justice McFarland ofthe Kansas

Supreme Court has noted that:

As a former district court judge I can certainly recall instances where this statute

[abolishing parental preference] would have been highly desirable. The parent

.

. . may leave a child with relatives for many years, then suddenly want it back in a

fit of guilt or due to changed circumstances. The relatives may well be the only

home the child has known and a strong family unit has been created. The trial court

should have the discretion to preserve the family unit as it now exists. 134

Mental health professionals agree that the child suffers detriment when removed from the

home where he or she has bonded, unless there are extreme circumstances. 135 One case

explained that "bonds of love between parent and child are not dependent upon blood

relation and instinct, but may be forged as strongly in the crucible of day to day living."136

The advantages ofthe best interests standard are offset by the criticism ofthe standard:

that it is too flexible. Giving courts carte blanche to remove children under such a vague

standard gives the state too much power to intrude in the family unit. Moreover,

professionals in the juvenile field who assess a family's needs are not invincible in making

their judgments.

Because the strict parental rights standard is criticized as too rigid, and the best interests

standard as too flexible, most courts fall somewhere between the two standards.
137

In these

jurisdictions, parental and children's rights are more evenly balanced than in states that

follow one of the polar standards. The presumption in favor of biological parents can be

overcome by less than a clear and convincing showing of parental unfitness.

II. The Current Solution to Jurisdictional Uncertainty

A. TheUCCJAm

Adopted at the 1968 National Conference of Commissioners on Uniform State Laws,

the UCCJA was intended to "bring some semblance oforder into the existing [jurisdictional]
chaos."

139 The problems in rendering child custody decisions showed the need for a uniform

134. Sheppard v. Sheppard, 630 P.2d 1 121, 1 129 (Kan. 1981) (McFarland, J., dissenting), cert, denied,

455 U.S. 919(1982).

1 35. See Blakesley, supra note 68, at 378; Goldstein, et al., supra note 2, at 1 13-33; Elizabeth Scott

& Andre Derdeyn, Rethinking Joint Custody, 45 Ohio State L.J. 455, 488-90 (1984); Joan G. Wexler,
Rethinking the Modification ofChild Custody Decrees, 94 Yale L.J. 757, 789-92 (1985).

136. Borsdorf v. Mills, 275 So. 2d 338, 340 (Ala. Civ. App. 1973).

1 37. See supra note 129 and accompanying text.

138. See supra note 1 1 for citations to the UCCJA in all fifty jurisdictions.

139. UCCJA, Table of Jurisdictions, Prefatory Note, para. 8. The UCCJA provides:

SECTION 1. [Purposes ofAct; Construction ofProvisions]



84 INDIANA LAW REVIEW [Vol. 28:65

body of law.
140

Although the states would continue to be sovereign, the hope was that, with

uniform laws, the outcome in interstate child custody cases would be more certain. By 1984,
it was enacted in all fifty states with only minor differences among the different versions. 141

It was influenced by Justice Frankfurter's concurrence in May142 in that it permits one state
to enforce another state's custody order even if one claimant was not subject to personal

jurisdiction in the rendering state, as long as the claimant received notice and an opportunity

(a) The general purposes of this Act 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 ofa 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 courts of this state decline the exercise ofjurisdiction 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;

(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; and

(9) make uniform the law of those states which enact it.

(b) This Act shall be construed to promote the general purposes stated in this section.

See generally, UCCJA, Publisher's Explanation:

The National Conference ofCommissioners on Uniform State Laws is composed of Commissioners

from each ofthe states, the District ofColumbia, and Puerto Rico. In thirty-three ofthese jurisdictions

the Commissioners are appointed by the chiefexecutive acting under express legislative authority. In

the other jurisdictions the appointments are made by general executive authority. There are usually

three representatives from each jurisdiction .... The object ofthe National Conference, as stated in

its constitution, is 'to promote uniformity in state laws on all subjects where uniformity is deemed

desirable and practicable'. The National Conference works through standing and special committees

If the National Conference decides to take up the subject, it refers the same to a special committee

with instructions to report a draft ofan act ... . When finally approved by the National Conference,

the uniform acts are recommended for general adoption throughout thejurisdiction ofthe United States

and are submitted to the American Bar Association for its approval.

140. UCCJA, Table of Jurisdictions, Prefatory Note.

141

.

See supra note 1 1 for citations to the UCCJA in all fifty jurisdictions.

142. May v. Anderson, 345 U.S. 528 (1953); see supra notes 77-79 and accompanying text.



1 994] INTERSTATE CHILD CUSTODY CASES 85

to be heard.
143 The drafters noted that the Act would not reach its intended results unless a

large number ofjurisdictions adopted it.
144

The substantive provisions of the Act attempt to provide certainty or repose in the law

ofjurisdiction governing custody determinations, while leaving some flexibility to decide

each case individually. Under the Act, there are four ways in which a forum can obtain

jurisdiction to decide a case: 1) the forum state was the home state of the child at the time

ofthe commencement ofthe proceeding; 2) the child and at least one person claiming a right

to custody have a "significant connection" with the forum state and there is a substantial

amount of evidence in the forum state relating to the child's welfare; 3) the child is present

in the state and emergency conditions, such as abandonment or threat of injury, require the

court to take jurisdiction; or, 4) no other state has jurisdiction or another state has declined

jurisdiction because the forum can more appropriately exercise jurisdiction. 145

143. The UCCJA provides:

SECTION 4 [Notice and Opportunity to be Heard]

Before making a decree under this Act, 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.

[Section 5 sets forth guidelines for how notice is to be made.]

See Wayne Everett Waite, Note, Child Custody: Substantial Justice Toward Children or Procedural for

Parents?—Pasqualone v. Pasqualone, 63 Ohio St.2d 96, 406 N.E.2d 1 121 (1980), 7 U. Dayton L. Rev. 217, 225;

UCCJA § 13, Commissioner's Note. See also Goldfarb v. Goldfarb, 268 S.E.2d 648, 651 (Ga. 1980); Pratt v.

Pratt, 431 A.2d 405, 409-10 (R.I. 1981); Hudson v. Hudson, 670 P.2d 287, 293-95 (Wash. Ct. App. 1983) (cases

holding that the UCCJA does not violate a party's right to due process even though one party lacked minimum

contacts with the forum that adjudicated the child's custody).

144. UCCJA, Table of Jurisdictions, Prefatory Note, para. 1 1

.

145. The UCCJA provides:

SECTION 2 [Definitions] As used in this Act:

( 1

)

"contestant" means a person, including a parent, who claims a right to custody or visitation

rights with respect to a child;

(2) "custody determination" means a court decision and court orders and instructions providing

for the custody of a child, including visitation rights; it does not include a decision relating to

child support or any other monetary obligation of any person;

(3) "custody proceeding" includes proceedings in which a custody determination is one of

several issues, such as an action for divorce or separation, and includes child neglect and

dependency proceedings;

(4) "decree" or "custody decree" means a custody determination contained in a judicial decree

or other order made in a custody proceeding, and includes an initial decree and a modification

decree;

(5) "home state" means the state in which the child immediately preceding the time involved

lived with his parents, parent, or a person acting as parent, for at least 6 consecutive months, and

in the case of a child less than six 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 6-month or other period;

(6) "initial decree" means the first custody decree concerning a particular child;



86 INDIANA LAW REVIEW [Vol. 28:65

If, at the time the petition is filed, a proceeding is pending in another forum that is

"substantially in conformity" with the UCCJA, the court may not exercise jurisdiction. 146

Under the broad definition of "custody determination" given in the UCCJA, the Act is now
generally held to apply to almost all interstate custody determinations, including, for

(7) "modification decree" means a custody decree which modifies or replaces a prior decree,

whether made by the court which rendered the prior decree or by another court;

(8) "physical custody" means actual possession and control of a child;

(9) "person acting as a parent" means a person, other than a parent, who has physical custody

ofa child and who has either been awarded custody by a court or claims a right to custody; and

(10) "state" means any state, territory, or possession ofthe United States, the Commonwealth

of Puerto Rico, and the District of Columbia.

SECTION 3 [Jurisdiction]

(a) A court of this State which is competent to decide child custody matters has jurisdiction to

make a child custody determination by initial or modification decree if:

(1) this State (i) is the home state of the child at the time of commencement of the

proceeding, or (ii) had been the child's home state within 6 months before

commencement ofthe proceeding and the child is absent from this State because of his

removal or retention by a person claiming his custody or for other reasons, and a parent

or person acting as parent continues to live in this State; or

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

because (i) the child and his parents, or the child and at least one contestant, have a

significant connection with this State, and (ii) there is available in this State substantial

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

relationships; or

(3) the child is physically present in this State and (i) the child has been abandoned or (ii)

it is necessary in an emergency to protect the child because he has been subjected to or

threatened with mistreatment or abuse or is otherwise neglected [or dependent]; or

(4) (i) it appears that no other state would have jurisdiction under prerequisites

substantially in accordance with paragraphs (1), (2), or (3), or another state has declined

to exercise jurisdiction on the ground that this State is the more appropriate forum to

determine the custody ofthe child, and (ii) it is in the best interest of the child that this

court assume jurisdiction.

(b) Except under paragraphs (3) and (4) of subsection (a), physical presence in this State of the

child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on

a court of this State to make a child custody determination.

(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to

determine his custody.

146. The UCCJA provides:

SECTION 6 [Simultaneous Proceedings in Other States]

(a) A court of this State shall not exercise its jurisdiction under this Act if at the time of filing the

petition a proceeding concerning the custody of the child was pending in a court of another state

exercising jurisdiction substantially in conformity with this Act, unless the proceeding is stayed by

the court of the other state because this State is a more appropriate forum or for other reasons.

(Emphasis added).



1 994] INTERSTATE CHILD CUSTODY CASES 87

example, guardianships
147

and adoption proceedings,
148

which are not expressly named in the

Act.
149 Although section three (which gives the four bases ofjurisdiction) intended that

jurisdiction exist "only if it is in the child's interest,"
150

the drafters further stated that the

section "was phrased in general terms in order to be flexible enough to cover many fact

situations too diverse to lend themselves to exact description. But its purpose is to limit

jurisdiction rather than to proliferate it."
151

The two most significant bases of jurisdiction are the "home state" test and the

"significant connection" test, although the language does not state that either alternative is

preferred.
152

But, since the Act was intended to reduce jurisdictional confusion, there is a

"strong presumption that the decree state will continue to have modification jurisdiction until

it loses all or almost all connection with the child."
153 Once the court has properly exercised

jurisdiction under the Act, if a party seeks to modify that decision in another forum, the

second forum must refer to section fourteen of the Act which governs modification of prior

decrees. A second forum may modify a previous decision from another forum if it finds that:
1) the first forum no longer has jurisdiction under principles of the Act or has declined to

exercise jurisdiction; and, 2) the second forum does have jurisdiction.
154

In deciding whether or not to exercisejurisdiction under the UCCJA, courts use a three-

step analysis. First, does the first court no longer have jurisdiction (Did the first court never

properly have it? Has the first court declined to exercise jurisdiction? Does the first court no

longer have jurisdiction for another reason?)? Second, if the first court no longer has

147. See Guardianship of Donaldson, 223 Cal. Rptr. 707, 712-13 (Cal. Ct. App. 1986).

148. Gainey v. Olivo, 373 S.E.2d 4, 6 (Ga. 1988).

149. The UCCJA provides:

SECTION 2 [Definitions] As used in this Act:

(2) "custody determination" means a court decision and court orders and instructions providing for the

custody of a child, including visitation rights. It does not include a decision relating to child support

or any other monetary obligation of any person;

(3) "custody proceeding" includes proceedings in which a custody determination is one of several

issues, such as an action for divorce or separation, and includes child neglect and dependency

proceedings;

(Emphasis added).

150. UCCJA, § 3, Official Cmt. (emphasis in original).

151. Id.

1 52. See supra note 145.

153. Adoption of Zachariah K., 8 Cal. Rptr.2d 423, 429 (Cal. Ct. App. 1992).

1 54. The UCCJA provides:

SECTION 14 [Modification ofCustody Decree ofAnother State]

(a) If a court of another state has made a custody decree, a court of this State shall not modify that

decree unless (1) it appears to the court of this State that the court which rendered the decree does not

now have jurisdiction under jurisdictional prerequisites substantially in accordance with this Act or

has declined to assumejurisdiction to modify the decree and (2) the court of this State has jurisdiction.

(b) If a court of this State is authorized under subsection (a) and section 8 to modify a custody decree

of another state it shall give due consideration to the transcript of the record and other documents of

all previous proceedings submitted to it in accordance with section 22.

[Section 22 of the UCCJA is titled "Request for Court Records of Another State."]



88 INDIANA LAW REVIEW [Vol. 28:65

jurisdiction, does the forum state have jurisdiction? Finally, should the forum state exercise

jurisdiction? In the last step, the court considers the "clean hands doctrine"
155

and forum non

conveniens.
156

This step ofthe analysis involves weighing the child's best interests against

the forum state's interest in deterring forum shopping and kidnapping. "Jurisdiction shall

not be declined unless the trial court determines that the child's best interests will not be

injured by such a decision."
157

155. The UCCJA provides:

SECTION 8 [Jurisdiction Declined by Reason ofConduct]

(a) If the petitioner for an initial decree has wrongfully taken the child from another state or has

engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just

an proper under the circumstances.

(b) Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a

custody decree of another state if the petitioner, without consent ofthe person entitled to custody, has

improperly removed the child from the physical custody of the person entitled to custody or has

improperly retained the child after a visit or other temporary relinquishment of physical custody. If

the petitioner has violated any other provision of a custody decree of another state the court may

decline to exercise its jurisdiction if this is just and proper under the circumstances.

(c) In appropriate cases a court dismissing a petition under this section may charge the petitioner with

necessary travel and other expenses, including attorneys' fees, incurred by other parties or their

witnesses.

See UCCJA § 8, Official Cmt. ("This section incorporates the'clean hands doctrine.'").

156. The UCCJA provides:

SECTION 7. [Inconvenient Forum]

(a) A court which has jurisdiction under this Act to make an initial or modification decree may decline

to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum

to make a custody determination under the circumstances of the case and that a court of another state

is a more appropriate forum.

(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the

child that another state assume jurisdiction. For this purpose it may take into account the following

factors, among others:

(1) if another state is or recently was the child's home state;

(2) if another state has a closer connection with the child and his family or with the child and

one or more of the contestants;

(3) if substantial evidence concerning the child's present or future care, protection, training, and

personal relationships is more readily available in another state;

(4) if the parties have agreed on another forum;

(5) if the exercise ofjurisdiction by a court of this state would contravene any of the purposes

stated in section 1

.

See also Willoughby v. Willoughby, 525 N.Y.S.2d 46 (N.Y. App. Div. 1988) (New York declined, in the best

interests of the children, to take jurisdiction even though Indiana, the state of original jurisdiction, no longer had

jurisdiction because Florida had the most significant connection to the children in that they lived and attended school

there.).

1 57. Pierce v. Pierce, 640 P.2d 899, 905-06 (Mont. 1 982).



1 994] INTERSTATE CHILD CUSTODY CASES 89

In order to deter lawless childsnatching, courts are instructed to exercise their powers

of equity. If one party's conduct is so objectionable that the court, in its "inherent equity

powers cannot in good conscience permit that party access to its jurisdiction," the court can

decline jurisdiction.
158

Sometimes, however, even the policy against deterring lawless

childsnatching is outweighed by considerations of the child's best interests. In Van Houten

v. Van Houten?
59
a 1989 case from the Appellate Division ofthe New York Supreme Court,

the father ignored a Florida divorce decree granting custody to the mother and absconded

with the child. The father and child were located in New York eight years later. The mother
sought to enforce the Florida order, but the court found that the Florida decree was not

entitled to full faith and credit, even though Florida had originally exercised jurisdiction

properly.
160 The court said that the case was "one of those rare instances" where the best

interests of the child must prevail over other individuals' legal rights.
161

The intention of the Act was that custody be decided in the forum that could most

appropriately litigate the best interests of the child.
162

Professor Bodenheimer, the Reporter

for the Special Committee that drafted the Act, has written that the Act was not intended to

create concurrent jurisdiction between two states:

When a child stays in a state for six months or more as a visitor or a victim of
abduction, the question arises whether the new state has power to modify the

custody decree. The answer is that the Act does not permit the second state to take

jurisdiction because the paramountjurisdiction ofthe prior state continues. Section

3 of the Act, the basic provision on subject matter jurisdiction, must be read in

conjunction with section 14, which does not permit modifications by another state

as long as the prior state's exclusive jurisdiction continues. This is true whether

or not another state has technically become the child's home state. 163

The narrower a court interprets the provision on continuing jurisdiction, the more likely the

court will find itself able to modify a sister state's order. In E.E.B. v. D.A., the Supreme

Court of New Jersey found that Ohio's refusal to exercise jurisdiction on best interests
entitled New Jersey to do so. But in DeBoer, even though Iowa had not decided best
interests, Michigan found that the Iowa order had to be enforced.

164
This discrepancy reveals

the fact that various jurisdictions interpret the UCCJA differently, making it impossible to
predict whether a custody order will be given full faith and credit uniformly throughout the

country.

158. UCCJA, § 8, Official Cmt.

159. 549 N.Y.S.2d 452.

160. Id. at 454.

161. Id.

162. See McAtee v. McAtee, 323 S.E.2d 61 1, 615 (W. Va. 1984); Brigitte Bodenheimer, The Uniform

Child Custody Jurisdiction Act: A Legislative Remedyfor Children Caught in the Conflict ofLaws, 22 Vand.

L. Rev. 1207, 1221(1969).

1 63. Brigitte Bodenheimer, Progress under the Uniform Child Custody Jurisdiction Act and Remaining

Problems: Punitive Decrees, Joint Custody, and Excessive Modifications, 65 Cal. L. Rev. 978, 988 (1977).

See supra notes 145-46.

164. See supra notes 34-35, 46-48 and accompanying text.



90 INDIANA LAW REVIEW [Vol. 28:65

B. The PKPA 165

"When the UCCJA proved an imperfect remedy for the staggering national problem of
child-snatching and forum shopping in interstate child custody disputes, Congress enacted

the PKPA to provide a uniform federal standard to ascertain the one state with jurisdiction
to modify an existing child custody order."

166
Congress adopted the PKPA, which is very

similar to the UCCJA, as a gap-filler for states that did not adopt a version ofthe UCCJA. 167

For example, New Mexico had not adopted the UCCJA in 1980 and had a long line of cases
rewarding seize-and-run behavior. The PKPA ended that line of cases by setting guidelines
for states to grant full faith and credit to custody orders of other jurisdictions.

168
Although

the PKPA was enacted to further the same goals and policies as the UCCJA, there are two
differences between them. First, whereas the UCCJA provides a forum with jurisdiction to
decide a case, the PKPA only addresses whether another state's order is entitled to full faith
and credit. Second, the language ofthe PKPA is precise in areas where the UCCJA is vague.

In 1988, the United States Supreme Court noted in Thompson v. Thompson 169 that

Congress intended the PKPA as an addendum to the Full Faith and Credit Clause of the
Constitution.

170 The Court concluded that the PKPA confers no cause ofaction in the federal
courts for a claimant to request that the court determine which of two conflicting orders is

valid.
171

However, the Court made the qualification that "ultimate review remains available

in this Court for truly intractable jurisdictional deadlocks."
172

The PKPA is, nonetheless, a federal law, which preempts state law under the Supremacy
Clause of the Constitution of the United States where state law conflicts.

173 As the

165. 28U.S.C. § 1738A(1980).

1 66. Murphy v. Woerner, 748 P.2d 749, 750 (Alaska 1 988).

1 67. "The PKPA, drafted after the UCCJA, is directed to the same child custody problems, and provisions

of both statutes are nearly identical." Adoption of Zachariah K, 8 Cal. Rptr.2d 423, 428 (Cal. Ct. App. 1992).

But see In re A.L.H., 630 A.2d 1288, 1291 n.2 (Vt. 1993) ("The courts are divided on whether the PKPA applies

to neglect and dependency proceedings."). When the PKPA was adopted, 43 states had adopted a version of the

UCCJA. See P. Hoff, Legal Remedies in Parental Kidnapping Cases: A Collection of Materials 8 (5th

ed. 1986).

1 68. State ex rel. Valles v. Brown, 639 P.2d 1 1 8 1 , 1 1 84 (N.M. 1 98 1 ).

169. 484 U.S. 174(1988).

170. Id. at 183. U.S. Const., art. IV, § 1 ; see supra subpart I.B.I.

171. Thompson, 484 U.S. at 1 82-84. Before this case, there was a circuit court split as to whether a federal

court was permitted to enforce the PKPA. For support of the argument that federal courts should be allowed to do

so, see Ann T. Wilson, The Parental Kidnapping Prevention Act: Is There an Enforcement Rolefor the Federal

Courts?, 62 Wash. L. Rev. 841 (1987).

172. Thompson, 484 U.S. at 187. However, the court has not yet decided such a case.

1 73. Murphy v. Woerner, 748 P.2d 749, 750 (Alaska 1988); Garrett v. Garrett, 732 S.W.2d 127, 128 (Ark.

1987); Archambault v. Archambault, 555 N.E.2d 201, 204-05 (Mass. 1990); Shute v. Shute, 607 A.2d 890, 893

(Vt. 1992); Michalik v. Michalik, 494 N.W.2d 391, 394 (Wis. 1993). See also U.S. Const., art. VI, cl. 2, which

states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made, under the authority of the United States, shall be

the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing



1 994] INTERSTATE CHILD CUSTODY CASES 9

1

Massachusetts Supreme Court pointed out, however, preemption occurs only where the state

law does "major damage" to "clear and substantial" federal interests.
174

Thus, a federal court

must defer to state family law unless Congress has clearly indicated a contrary intention.
175

One way for states to avoid preemption is to construe their state laws in accordance with

federal law.
176

Since the UCCJA and the PKPA are so similar, a court deciding whether to
grant full faith and credit to another forum's order under the PKPA would use an analysis
much like the one provided in the UCCJA. 177

However, in two places the PKPA is more precise than the UCCJA. First, the UCCJA
does not prioritize the different types ofjurisdiction. Although the Official Comment notes

a strong presumption in favor of"home state" jurisdiction, the language of the statute itself

does not expressly state that preference.
178 By contrast, the PKPA provides that ifhome state

jurisdiction exists, then only the home state forum's orders are entitled to full faith and credit

(unless the court is responding to an emergency situation).
179

Secondly, whereas the PKPA

in the Constitution or Laws of any State to the Contrary notwithstanding.

174. Archambault, 555 N.E.2d at 205 (citations omitted).

175. Id.

176. See Kumar v. Superior Court, 652 P.2d 1003, 101 1 (Cal. 1982) ("[F]ederal legislation would compel

the result we reach in the instant case."); In re Marriage of Leyda, 398 N.W.2d 815, 820 (Iowa 1987) ("Both the

UCCJA and the Federal Parental Kidnapping Prevention Act of 1980 lead to the conclusion that Michael's rights

under the Iowa decree are unaffected by the order ofthe Florida court."); State ex rel. D.S.K., 792 P,2d 118, 128

(Utah Ct. App. 1990) ("In this case, we reach the same resolution under the UCCJA as we would under the

PKPA.").

1 77. See supra subpart II.A.

1 78. See supra notes 145-46 and accompanying text.

179. Subsection (c) of the PKPA states:

(c) A child custody determination made by a court of a State is consistent with the provisions of this

section only if

—

(1) such court has jurisdiction under the law of such State; and

(2) one of the following conditions is met:

(A) such State (i) is the home State of the child on the date of the commencement of the

proceeding, or (ii) had been the child's home State within six months before the date of

the commencement ofthe proceeding and the child is absent from such State because of

his removal or retention by a contestant for other reasons, and a contestant continues to

live in such State;

(B) (i) /'/ appears that no other State would havejurisdiction under subparagraph (A),

and (ii) it is in the best interest ofthe child that a court of such State assume jurisdiction

because (I) the child and his parents, or the child and at least one contestant, have a

significant connection with such State other than mere physical presence in such State,

and (II) there is available in such State substantial evidence concerning the child's present

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

(C) the child is physically present in such State and (i) the child has been abandoned, or

(ii) it is necessary in an emergency to protect the child because he has been subjected to

or threatened with mistreatment or abuse;

(D) (i) it appears that no other State would have jurisdiction under subparagraph (A),

(B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that



92 INDIANA LAW REVIEW [Vol. 28:65

gives an express standard for continuingjurisdiction, the UCCJA does not. The PKPA says
that ifthe forum made the custody order consistently with the provisions of its own state law
(the forum's version ofthe UCCJA), and the forum continues to be the residence ofthe child

or any contestant,
180

then the forum has exclusive jurisdiction.
181

In these two areas, the

PKPA provides more certainty than the UCCJA. Two primary ways under the PKPA to
attack a prior custody order rendered in another state arise from the language of subsection

(d).
182 The party would argue that either the first party failed to exercisejurisdiction properly

under its own state laws or that the first forum is no longer the residence of the child nor a
contestant.

Since the UCCJA and the PKPA are jurisdictional statutes only, they do not impose
substantive principles of law on states, and the states have different substantive standards of

law in parent/non-parent cases. If both parents are biological parents (or both are non-

parents), the universal standard is that of the child's best interests.
183

But where one

contestant is a non-parent, state standards differ.
184 The difference between the three cases

noted in subpart LA. of this Note

—

DeBoer,
m

E.E.B.™
6
and Lemleyx%1—is the strictness

with which they construe the Acts in deciding whether to grant full faith and credit to a sister

state's custody order. They present an issue that merges state substantive law with these

jurisdictional statutes: If the first court does not adjudicate the child's best interests, do the

jurisdictional statutes allow another forum to do so if the merits of the case indicate that a

best interests determination is in order?

the State whose jurisdiction is in issue is the more appropriate forum to

determine the custody of the child, and (ii) it is in the best interest of the

child that the court assume jurisdiction; or

(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.

(Emphasis added). Compare UCCJA § 3 (text given in supra note 145) and §14 (the relevant portion of which is

given in supra note 154).

1 80. The PKPA defines a contestant as "a person, including a parent, who claims a right to custody or

visitation of a child." 28 U.S.C. § 1738(b)(2).

181. Subsection (d) of the PKPA states:

(d) The jurisdiction of the court ofa State which has made a child custody determination consistently

with the provisions of this section continues as long as the requirement of subsection (c)(1) of this

section continues to be met and such State remains the residence of the child or of any contestant.

[For the text ofsubsection (cX 1 ), see supra note 179]. See, e.g., McBride v. Sokol, 469 So. 2d 645 (Ala. Civ. App.

1985); Clark v. Boreanaz, 552 N.Y.S.2d 760 (N.Y. App. Div. 1990).

1 82. For the text of subsection (d), see supra note 181.

1 83. See supra note 86 and accompanying text.

1 84. See supra subpart I.B.2.C.

185. See supra notes 17-42 and accompanying text.

1 86. See supra notes 42-48 and accompanying text.

1 87. See supra notes 42, 49-54 and accompanying text.



1 994] INTERSTATE CHILD CUSTODY CASES 93

III. The Proposed Solution to Jurisdictional Competition

A. Inadequacy ofthe Current Solution

Described as "schizophrenic legislation," the UCCJA and the PKPA attempt to provide
both flexibility and certainty in custody decisions.

188
Disputes involving non-parents lead to

a greater degree ofjurisdictional uncertainty given the diverse standards of law from forum

to forum in parent/non-parent disputes.
189

In order to bring more certainty into the jurisdictional problem, one commentator has

recommended that every jurisdiction adopt a Revised UCCJA. 190 She proposes that one
decree court have exclusive power to modify its decision for anywhere up to five years. At

that point, only if that state remains the child's home state may the court continue

jurisdiction. If not, the child's new home state gains exclusive jurisdiction. The one

exception would be genuine emergency situations, in which any court in a state where the

child is found may enter a temporary order. 191 Another proposal is that another court should

not exercise jurisdiction unless the first court has expressly declined to exercise further

jurisdiction.
192

But what if, in a particular instance, the abduction is in the child's best interest? In 1992,

the Supreme Court of Wisconsin found that even though the best interests of the children

would be served by adjudicating their custody modification in Wisconsin, their home state

at the time of the suit, Wisconsin was prevented from doing so by the PKPA, since the
original forum had properly exercised jurisdiction and remained the residence of the

children's father: "These jurisdictional provisions of the PKPA . . . cannot be circumvented
in favor of an individual best interests test."

193
Adjudication of the children's best interests

was subjugated to the goal of reaching a more certain outcome. But the more flexible the

standards in custody disputes, the less the impact on the elimination ofchildsnatching.
194

The

goal of flexibility requires that courts should be free to decide each case individually, which

means that the result is not predictable. As the Lemley court phrased it in the oft-repeated

language, "we are not ordering the transfer of a piece of property, but rather with [sic] a

feeling, vulnerable, and sorely put upon little human being." 195

Is it possible to promote the best interests of a child in a custody battle while,

at the same time, furthering a policy designed to counter the phenomenon of

childsnatching? . . . Courts will invariably interpret the same legislation in differing

1 88. Professor Blakesley repeatedly used the term "schizophrenic" to describe the UCCJA. See Blakesley,

supra note 68, at 374.

1 89. It is beyond the scope of this Note to respond to the many criticisms that the UCCJA and the PKPA

inadequately resolve jurisdictional deadlock in all cases. Rather, this Note focuses on cases involving one parent

and one non-parent.

190. Goldstein, supra note 14, at 942-46.

191. Id.

192. James C. Murray, One Child's Odyssey Through the Uniform Child Custody Jurisdiction and

Parental Kidnapping Prevention Acts, 1993 Wis. L. Rev. 589, 610-11.

193. Michalik v. Michalik, 494 N.W.2d 391, 398 (Wis. 1993).

1 94

.

See supra subpart I . A

.

195. Lemley v. Barr, 343 S.E.2d 101, 104 (W. Va. 1986).



94 INDIANA LAW REVIEW [Vol. 28:65

ways, depending on the policy seen as paramount. . . . Thus, even with the advent

ofthe UCCJA, the jurisdictions have been troubled by these competing policies.
While the legislation shaped policy by expressing a preference in favor of

suppression ofchild-snatching, the law has not resolved the conflict inherent in the

nature of child custody litigation.
196

Even though society does not want to reward the lawless, "circumstances may require that,
in the best interest of the child, the unlawful acts be blinked."

197 One commentator urges
that, since children have a constitutional interest in the custody proceeding, due process

requires balancing the child's right to be reared by the person with whom he or she has
bonded against any legal right claimed by a contestant under the UCCJA and the PKPA. 198

B. Proposalfor a Prophylactic Measure

What can courts do to avoid the sticky situations that arise from parent/non-parent

interstate custody disputes? Due to the risk that another court will find that the first forum

declined to exercise jurisdiction to determine best interests, there is a very simple solution.

In every interstate case, the first forum should consider adjudicating the child's best interests.

This proposal does not mean that every state should apply the best interests standard. It does

mean that the first forum should close the door to jurisdictional uncertainty by precluding a

second forum from claimingjurisdiction based on the first forum's refusal to adjudicate that

issue.

The UCCJA embeds the highly indeterminate, fact-sensitive, "best interests
of the child" standard in every jurisdictional determination. . . . This virtually

ensures that in every interstate custody matter each court will consider the

children's best interests—that is, the merits of the case—in deciding whether to
exercise jurisdiction or to defer to another court's decision-making. Whenever the

forum, after examining the merits, comes to a conclusion that differs from the

decree court's decision, it is bound to be strongly tempted to remedy what it

perceives as a wrong, by asserting and exercising jurisdiction.
199

The original fora in E.E.B. v. D.A., (the Ohio courts) and DeBoer (the Iowa courts) refused

to grant such a hearing, thereby opening the door for another forum to do so.
200

In DeBoer,

Michigan's Washtenaw Circuit Court claimed jurisdiction due to Iowa's refusal to hold a

best interests hearing.
201

At first blush it may appear that jurisdictional statutes would thereby meddle with

substantive law; but it is also true that, under the existing system of wide disparity of

interpretation of the UCCJA and the PKPA, a custody decision in one state might not be

1 96. Blakesley, supra note 68, at 373-74.

1 97. Bennett v. Jeffreys, 356 N.E.2d 277, 284 (N.Y. 1 976).

1 98. Blakesley, supra note 68, at 378-79.

1 99. Goldstein, supra note 14, at 940-4 1

.

200. E.E.B. v. D.A., 446 A.2d 871, 873 (N.J. 1982), cert, den., 459 U.S. 1210 (1983); DeBoer v. Schmidt,

502 N.W.2d 649, 652-53 (Mich. 1993), stay denied sub nom. DeBoer v. DeBoer, 1 14 S.Ct. 1 (1993), stay denied,

114 S.Ct. 11(1993).

20 1

.

DeBoer, 502 N.W.2d at 653 (Levin, J., dissenting).



1 994] INTERSTATE CHILD CUSTODY CASES 95

recognized in a sister state whose substantive standard for parent/non-parent cases differs if

the second state interprets the jurisdictional Acts so as to allow it to reach the merits of the

case. The differences in interpretation of these Acts from state to state has been widely

documented.
202

In order to prevent a sister state from interpreting the Acts differently in

order to find that it has jurisdiction to modify the first forum's decision, the first forum can

protect its decision by holding a best interests hearing as part of its adjudication process.

Ultimately, ifthis tension in the law induces courts to grant best interests hearings where they

otherwise would not, both policies behind the jurisdictional Acts would be promoted:

children's best interests would be furthered because courts would actually hear arguments

on and decide that issue; and, certainty of outcome would be achieved because sister states

would lose the opportunity ofrefusing to grant full faith and credit to the first finding, leaving

no room for the sister state to exercise that jurisdiction itself. Examination of the Acts and

the state standards supports this solution.

One compelling argument is that the failure of a court to apply a "best interests of the

child" standard is a failure to exercise jurisdiction "substantially in compliance" with the

Acts. But the Acts were adopted by individual jurisdictions entitled to apply their own

standard to a parent/non-parent custody dispute. They need not follow the best interests

standard. In DeBoer, the Michigan Supreme Court noted that the PKPA is a procedural
statute that does not impose "principles of substantive law" on the individual states.

203 The

court found that because the PKPA was not a substantive statute, it could not mandate that
Michigan conduct a best interests test since this would infringe on Iowa's right to apply its

own rules of law. Even if the Acts do not require a best interests hearing, such a test is
definitely consistent with the Acts.

One recent article views the PKPA optimistically, arguing that the Act does not deserve
all the criticism it receives since progress and uniformity in the law are slowly evolving and

must be expected to take time.
204

Given time, under this proposal, even more uniformity and

repose could be achieved in child custody decisions. Under the state substantive standard,

factors affecting the custody disposition can be considered in order to decide whether the

child's best interests are being served. Since some states weigh parents' rights more heavily

than other states, the best interests adjudication in those states would take into account the

greater weight. In this way, federal law would not infringe upon states' rights to determine

their own family law. Moreover, certainty in the law would result in the long run. If states

litigated the best interests of children from the start, other forums would have no basis to

deny full faith and credit to the first forum's decision, and, eventually, the UCCJA's and the

PKPA's goal of reducing volume of litigation would be realized. Whether or not a second

forum is right in taking jurisdiction because of refusal of the first forum to decide best

interests, the fact is that the risk exists. Courts inevitably interpret the Acts differently, which

leads to jurisdictional uncertainty. As a prophylactic measure, granting a best interests in the

first place closes that door of uncertainty.

The UCCJA and the PKPA were enacted for cases in which the contestants are two
parents, where the universal standard is that of the best interests of the child.

205 But when

202. See, e.g., Goldstein, supra note 14, at 938-41; Blakesley, supra note 68, at 373-75.

203. DeBoer, 502 N.W.2d at 658 n.24.

204. See Baron, supra note 1 0, at 9 1 1 - 1 2.

205. See supra note 86 and accompanying text.



96 INDIANA LAW REVIEW [Vol. 28:65

these Acts are applied where one contestant is a non-parent, standards vary from state to

state, some of them giving very little weight to the child's best interests. Since the

"underlying theme of the PKPA and the UCCJA is that a determination of custody and
visitation should be made according to the child's best interests,"206 then that goal would be

furthered. Presumably (or ideally), ifthe court from the child's slatutorily-determined home

state conducted a best interests hearing and found that another state with significant

connections to the child would be the better place to dispose of the case, the court would

decline jurisdiction. Ofcourse, this proposal will not avoid all jurisdictional uncertainty, but
if the amount of uncertainty decreases, courts, litigants, and the children themselves would

benefit.

Conclusion

Becausejurists, litigants, and people outside the legal field inevitably will disagree over

which approach to the UCCJA and the PKPA is appropriate, and how best to promote the
policies behind them, courts cannot always be certain whether their child custody decisions

will be enforced in the courts of a sister-state. Commentary on the Acts is voluminous,

ranging from strong support for their effectiveness to recommendations for their repeal.
207

At the very least, disagreement over how to apply the Acts exists. Therefore, a court would

be wise to end the jurisdictional competition in parent/non-parent cases by adjudicating best

interests even where state substantive law does not mandate it. In cases of this kind, the

policy choices are so complex that there can never be any easy answers. But ifconfusion can

be reduced while the best interests of children are furthered, the Acts would be more

effective.

206. DeBoer, 502 N.W.2d at 676.

207. See, e.g., Baron, supra note 10 (contending that, although progress is slow, the Acts will eventually

solve the problem ofjurisdictional competition); Nancy S. Erickson, The Parental Kidnapping Prevention Act:

How Can Non-Marital Children be Protected?, 1 8 Golden Gate U. L. Rev. 529 (1988) (arguing that although

the UCCJA and the PKPA effectively protect children born in wedlock, they do not protect children born out of

wedlock); Goldstein, supra note 14 (urging repeal of the Acts).