In 1980, Congress enacted the Parental Kidnapping Prevention Act (“PKPA”) to address the continuing problem of interstate custodial disputes. In adopting the PKPA, Congress attempted to impose more uniformity in case law and to eliminate some perceived gaps in the Uniform Child Custody Jurisdiction Act (UCCJA).
Contrary to the impression given by the title of the Act, kidnapping or other wrongdoing is not required for the PKPA to operate. The scope of the PKPA, as with the UCCJA and UCCJEA, encompasses all interstate custody determinations. While the PKPA has a substantial effect on interstate custody disputes, it does not establish a federal cause of action to resolve conflicting interstate decrees. Because a federal district court can neither prevent nor remedy a PKPA violation, the proper channel for such a violation is by appeal in the state court followed by a writ of certiorari to the United States Supreme Court. In addition to the appellate process, a civil rights action under 42 U.S.C. §1983 may be possible against the state court judge and the other parent for violating the PKPA.
The PKPA enumerates five jurisdictional bases as well as creates a system of preferred jurisdictional basis. The order of preferred jurisdictional basis is as follows: (i) continuing jurisdiction; (ii) home state jurisdiction; (iii) significant connection jurisdiction; (iv) jurisdiction where no other jurisdictional basis available; and (v) emergency jurisdiction. Under the preferential system, the court with the most preferred jurisdictional basis has the exclusive jurisdiction over the custody matter, absent a declination of jurisdiction by a court that has the preferred jurisdiction. However, emergency jurisdiction may be exercised independently of the order of preference, but said relief is typically temporary in nature and the parties are usually directed to return to the court with the most preferred jurisdictional basis.
While the PKPA does contain similar terminology as the UCCJA, there are several important distinctions between them. For example, continuing jurisdiction under the PKPA allows a state to retain jurisdiction to the exclusion of other states so long as the child or a party resides in that state. Additionally, jurisdiction predicated on significant contact with the forum only applies if there is no jurisdiction under “continuing jurisdiction” or “home state jurisdiction.” If jurisdiction exists under the first analysis, then jurisdiction cannot be predicted on significant contact with the forum.
Under the Supremacy Clause of the United States Constitution, federal regulations preempt conflicting state law. When the PKPA conflicts with the UCCJA, UCCJEA or other state law, the PKPA will preempt the state law and the jurisdictional issue will be resolved under the PKPA. Therefore, when the PKPA provides a preference for home state jurisdiction over any other basis, the PKPA will preempt, except on an emergency basis, any state statute that authorizes jurisdiction over the state which is the child’s home state.
If you have any questions regarding interstate custodial disputes, please do not hesitate to contact an attorney at Hamblett & Kerrigan to discuss. The attorneys at Hamblett & Kerrigan have experience in handling such situations. Let Hamblett & Kerrigan use their experience to your advantage.
Kevin P. Rauseo is a former director at Hamblett & Kerrigan P.A. and has since been appointed as a Justice for the New Hampshire Circuit Court. Please feel free to contact another attorney at Hamblett & Kerrigan to discuss your legal issues.