421 Mass. 525 | Mass. | 1995
This matter requires the court to resolve an interstate custody dispute between the plaintiff, Ingrid Delk (Delk or mother), and the defendant, Jose Gonzalez (Gonzalez or father). At the time of oral argument, there were in effect conflicting custody orders in the father’s home state of Virginia and the mother’s home state of Massachusetts.
Bernadette Lynn Gonzalez (also known as Bernadette Trundy) was born on March 18, 1989, in Virginia to Ingrid Trundy (now Ingrid Delk) and Jose Gonzalez, an enlisted serviceman. Bernadette and her parents lived together in Virginia from her birth until April, 1990. In April, 1990, Bernadette’s parents separated, and she resided with her mother. In December of the same year, Delk married her present husband, Michael Delk, also an enlisted serviceman. Soon thereafter Bernadette, her mother and Michael Delk moved to Georgia. In June of 1991, the Delks moved to New York, and in .October of 1991, they moved to Fall River, Massachusetts, where they reside today. Gonzalez has resided in Virginia throughout this dispute.
Gonzalez initiated judicial proceedings in Virginia by filing a custody and paternity action on November 28, 1990, prior to the time the Delks removed Bernadette from Virginia. On August 8, 1991, after a hearing, the Juvenile and Domestic Relations District Court of Norfolk, Virginia (Virginia court), awarded custody of Bernadette to her mother. Gonzalez appealed from this ruling, but before the appeal could be resolved, the parties entered into a written agreement. At a proceeding at which Delk was present, the parties signed the agreement and submitted it to the Circuit Court for the City of Norfolk (Virginia Circuit Court) as the consent decree of December 11, 1992. The consent decree awarded the parents joint legal custody of Bernadette, the mother with primary physical custody and the father with liberal visitation rights.
As provided in the consent decree, Gonzalez traveled to Massachusetts to visit Bernadette on December 26, 1992. When Gonzalez arrived at the Delks’ home, Delk alleges that Gonzalez threatened to take Bernadette away from her permanently. The police were called and Gonzalez left without Bernadette. Delk then obtained an abuse prevention order pursuant to G. L. c. 209A (1992 ed.), prohibiting Gonzalez from abusing Delk and ordering him to remain away from Delk’s residence. Alleging that Gonzalez violated the re
On March 18, 1992, Gonzalez appeared in the Virginia court requesting that a show cause summons be issued against Delk for denying him visitation rights. From April 9, 1992, to April 28, 1993, the Virginia court on several occasions issued a copias for Delk’s arrest because she failed to appear in court to explain why Gonzalez had been denied visitation. Gonzalez also sought enforcement of his visitation rights in the Virginia Circuit Court. On January 6, 1993, Gonzales filed a petition in the Virginia Circuit Court requesting that Delk show cause why she should not be held in contempt for refusing to allow Gonzalez to visit Bernadette pursuant to the consent decree. The mother did not answer this request, and on March 16, 1993, the judge of the Virginia Circuit Court found Delk in contempt of court and issued a copias for her arrest. Although the mother has not appeared in Virginia since she signed the consent decree, her counsel was present at these proceedings at all relevant times.
In the meantime, on January 8, 1993, Delk filed a complaint to revise, alter and enforce a foreign decree in the Probate and Family Court Department of Bristol County (Massachusetts court). The docket reveals that no action was taken on this complaint until August of 1993.
On June 29, 1993, not having seen Bernadette since December, 1991, Gonzalez filed a petition in the Virginia court in which he sought custody of Bernadette. On July 29, 1993, the Massachusetts court entered an ex parte abuse prevention order pursuant to G. L. c. 209A against Gonzalez. This order required that Gonzalez surrender his rights to the custody of Bernadette to Delk. The Massachusetts court vacated this order on August 8, 1995.
A hearing on Gonzalez’s petition for custody was scheduled for August 4, 1993, in the Virginia court. Two days before the hearing date, however, Delk filed a motion in the
On September 8, 1993, a judge of the Virginia court, relying on a report of the guardian ad litem and Delk’s “persistent denial of visitation” privileges to Gonzalez, issued an order awarding custody to Gonzalez. In that order, the Virginia court held that pursuant to the Parental Kidnapping Prevention Act of 1980 (PKPA), 28 U.S.C. § 1738A, the Virginia court “continues to have jurisdiction under subsection (d) of the PKPA if this Court has jurisdiction under Virginia law.” Turning to Virginia State law, the Virginia judge stated, “Virginia would not presently have jurisdiction under any subsection of §20-126, the jurisdictional section of the UCCJA. However . . . §20-108 gives Virginia courts continuing jurisdiction when the child has been removed from Virginia.”
In the spring of 1994, the Massachusetts court began to consider Delk’s amended complaint to revise, alter, and enforce foreign decrees. As the Uniform Child Custody Jurisdiction Act § 7(d), 9 U.L.A. 233 (Master ed. 1988) (UCCJA), encourages them to do, the Massachusetts judge and the Virginia judge spoke on the telephone about this conflict on May 25, 1994. The Virginia judge refused to decline jurisdiction, and the two judges were unable to resolve this conflict.
A hearing on Delk’s amended complaint was eventually held on August 8, 1994. In his findings and order of August 24, 1994, contrary to the Virginia judge’s holding, the Massachusetts judge concluded that Massachusetts had exclusive jurisdiction over the issue of custody under the Massachusetts Child Custody Jurisdiction Act, G. L. c. 209B (1994 ed.) (MCCJA).
II.
A.
The PKPA “[e]xtend[s] full faith and credit requirements to child custody conflicts.” Thompson v. Thompson, 484 U.S. 174, 187 (1988). Congress enacted the PKPA with the
There is no dispute that Virginia had jurisdiction over the custody dispute up to the date of the consent decree, December 11, 1992.
The mandate of the PKPA is uncompromising in its demand that “every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.” 28 U.S.C. § 1738A (a). In this case, on December 11, 1992, the Virginia Circuit Court made a custody determination consistent with this provision. The Massachusetts courts must enforce and may not modify this determination unless permitted to modify the decree under § 1738A (f).
The Virginia court has continuing jurisdiction if it satisfies the jurisdictional requirements of both the PKPA and its State law. Virginia has jurisdiction over a custody dispute under the PKPA if it fulfills the conditions of §1738A (c). Although Virginia was no longer Bernadette’s “home state” for purposes of subsection (c) (2) (A) on January 8, 1992, the PKPA vests “continuing jurisdiction” over the child custody dispute if the requirements of subsection (c) (2) (E) are met.
The determination whether Virginia continues to have jurisdiction over the custody dispute must be evaluated under Virginia laws and a determination on this point by a Virginia court must be dispositive. It cannot be that the PKPA, in seeking to “avoid jurisdictional competition and conflict,” Thompson v. Thompson, 484 U.S. 174, 183 (1988), would have envisaged allowing jurisdiction to turn on a determination by one State that a court of another State had in that
C.
Delk argues that the Virginia court lacked jurisdiction for purposes of the PKPA because that court did not base its assertion of jurisdiction on Virginia’s version of the UCCJA. The Virginia court ruled that it had continuing jurisdiction under Va. Code § 20-108,
It is Delk’s position that the PKPA prohibits the Virginia court from maintaining jurisdiction pursuant to non-UCCJA State law. The text and purpose of the PKPA, however, argue against this. The text speaks unqualifiedly in § 1738A (c) (1) when it states that the jurisdictional determination of the original State according to its own law is the factor on which its continuous jurisdiction depends. When Congress enacted the PKPA, it faced “often inconsistent and conflicting laws of various States regarding jurisdiction over child custody disputes.” Archambault v. Archambault, supra at 566. Congress intended the PKPA to resolve all jurisdictional conflicts, and did not limit the reach of the PKPA to conflicts arising under the UCCJA. Moreover, the UCCJA has a different purpose: to guide a court in determining when it should decline jurisdiction even when it might otherwise enjoy it. Such a discretionary judgment cannot solve the kind of interstate standoff we have here; it is rather a guide to interstate accommodation. The PKPA, on the other hand, seeks to avoid conflict by clearly assigning jurisdiction to one or another State. The State to which the jurisdiction is assigned may then be guided by the UCCJA in declining to exercise that jurisdiction. It would invite rather than avoid
The present judgment is vacated, and a new judgment is to be entered dismissing the action for lack of jurisdiction.
So ordered.
Virginia Code § 20-108, which predates the Uniform Child Custody Jurisdiction Act (UCCJA) §§ 1-28, 9 U.L.A. 123 (Master ed. 1988), is a jurisdictional statute granting Virginia courts “continuous jurisdiction to change or modify its decree as to the custody and maintenance of minor children [emphasis added].” Kern v. Lindsey, 182 Va. 775, 781 (1944), quoting Gloth v. Gloth, 154 Va. 511, 551 (1930). In 1979, Virginia adopted the UCCJA, see 1979 Va. Acts c. 299, codified at Va. Code Ann. §§ 20-125 — 20-146.
The MCCJA is “similar but not identical” to the UCCJA. Custody of a Minor (No. 3), 392 Mass. 728, 731 n.3 (1984). The differences, however, have no bearing on the issues in this case.
According to Delk’s brief and the Massachusetts court’s opinion, Bernadette was not removed from Virginia until after her mother’s marriage to Michael Delk in December of 1990. Therefore, on November 28, 1990, the date Gonzalez initiated the custody proceeding, Virginia was Bernadette’s “home State on the date of the commencement of the proceedings,” 28 U.S.C. § 1738A (c)(2)(i). If, as Gonzalez’s brief and the Virginia courts’ opinions state, Bernadette was removed from Virginia in August of 1990, Virginia was Bernadette’s “home State within six months before the commencement of the proceeding and the child [was] absent from such State because of [her] removal or retention by a contestant or for other reasons, and a contestant continues to live in such State.” Id. at § 1738A (c)(2)(ii). Accordingly, on either account, Virginia asserted original jurisdiction over this matter consistent with the PKPA. Virginia also made its second child custody determination, the entry of the consent decree on December 11, 1992, consistent with the provisions of the PKPA because the proceeding that culminated in the consent decree commenced on November 28, 1990. Id. at § 1738A (c)(2)(A)(i) and (ii).
We have considered whether Gonzalez’s efforts on January 6, 1993, to enforce his visitation rights under the consent decree, served to continue the custody proceeding in Virginia that began in November, 1990. Under the facts of this case, however, the PKPA vests jurisdiction in Virginia regardless of whether there existed a pending custody proceeding in Virginia throughout this dispute. Therefore we need not decide if Gonzalez’s efforts to enforce the consent decree provided Virginia continuous jurisdiction under subsection (g) of the PKPA.
This conflict may occur often because the UCCJA permits concurrent jurisdiction between States, while the PKPA’s rules allow only one State to assert jurisdiction at a time. See generally Comment, Family Law — State and Federal Child Custody Statutes Prohibit Modification of Home State’s Child Custody Order, 28 Suffolk U.L. Rev. 261, 264-266 (1994); Blakesley, Child Custody-Jurisdiction and Procedure, 35 Emory L.J. 291, 308-312 (1986).
“ *[M] edification’ and ‘modify’ refer to a custody determination which modifies, replaces, supersedes, or otherwise is made subsequent to, a prior custody determination concerning the same child, whether made by the same court or not.” 28 U.S.C. § 1738A (b)(5). “ ‘[Cjustody determination’ means a judgment, 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.” Id. at § 1738A (b)(3). The Massachusetts judge’s August 24, 1994, order is a custody determination which modifies Virginia’s prior custody determination and therefore must satisfy subsection (f) to be valid. In addition, the PKPA explicitly includes “temporary orders” within the definition of “custody determination.” Compare 28 U.S.C. § 1738A (b)(3) with UCCJA § 2(2). See also G. L. c. 209B, § 1 (including temporary orders). Thus, the abuse prevention orders issued by the Massachusetts courts, to the extent they have an impact on custody, were custody determinations which modified Virginia’s prior custody determination and therefore must satisfy the requirements of the PKPA to be effective.
See generally Note, Interstate Child Custody and the Parental Kidnapping Prevention Act: The Continuing Search for a National Standard, 45 Hastings L.J. 1329, 1357-1366 (1994) (Congress adopted a continuous jurisdiction scheme favoring the decree State). Where the UCCJA, State law and even § 1738A (c)(2)(A) allow concurrent jurisdiction, subsection (c)(2)(E) resolves jurisdictional deadlocks.
The only limitation on Virginia’s interpretation of its own jurisdictional statute would be if that interpretation violated the due process clause of the United States Constitution. But the exercise of continuing jurisdiction in custody cases is too familiar to be vulnerable to such a challenge. See May v. Anderson, 345 U.S. 528, 535-536 (1953) (Frankfurter, J., concurring). See also Restatement (Second) Conflict of Laws § 79 comment a, at 237-238 (1971). In any event such a constitutional claim cannot be raised collaterally here once it has been litigated in Virginia. See Durfee v. Duke, 375 U.S 106, 111 (1963); Bassett v. Blanchard, 406 Mass. 88, 90 (1989).
The only relief from this mandate even arguably relevant here allows a court in a State where the child is present to make a child custody determination if “it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse.” 28 U.S.C. § 1738A (c)(2)(C)(ii). But the Massachusetts judge did not ground his court’s jurisdiction in this subsection nor does Delk rely on this subsection as the basis for Massachusetts’s jurisdiction over this dispute. Therefore, we do not consider this subsection’s application to this case.
Because Gonzalez remained a resident of Virginia, Va. Code § 20-108, as applied by the Virginia court in this case, did not extend Virginia’s jurisdiction beyond that allowed by the PKPA.
Because the custody dispute involved was international, the Middleton court did not consider the impact of the PKPA on State law. Middleton v.