Nuts and Bolts of the Pkpa
| Publication year | 1993 |
| Pages | 2397 |
| Citation | Vol. 22 No. 11 Pg. 2397 |
1993, November, Pg. 2397. Nuts and Bolts of the PKPA
That article mentioned in passing that, in addition to the provisions of the UCCJA and PKPA which are similar, there are two important differences between the two acts. However, it did not deal with those differences. This second article describes the two specific differences in language; explains how Colorado lawyers can make use of the differences between the UCCJA and PKPA; and draws attention to a recent, seminal decision by the Colorado Court of Appeals that is a strong precedent for reliance on those differences.(fn4)
Every state has enacted a version of the UCCJA; Colorado's took effect in 1973. The PKPA was enacted by Congress in 1980 to complement the UCCJA. The most important part of the PKPA is § 1738A of Title 28 of the U.S. Code.
Basically, § 1738A consists of most of the principal provisions of the UCCJA on child custody jurisdiction and enforcement, changed in two crucial respects. To understand the significance of those differences, it is important to know why § 1738A came to be enacted and why it is still important in the 1990s.
When the PKPA was drafted in the late 1970s, only about half of the fifty states had enacted the UCCJA, and it appeared likely that some states would never adopt it. Therefore, one purpose of § 1738A was to provide a set of rules for custody jurisdiction and enforcement that would apply in every state, in case some states never enacted the UCCJA. As it turned out, every state did eventually adopt the uniform statute. However, concern about the holdout states was not the only reason a federal statute was needed.
A second reason for the federal act was that the uniform act is not as uniform as the name suggests. Some legislatures changed the UCCJA's provisions in important ways,(fn5) and courts sometimes interpreted identical provisions differently from state to state.(fn6) Thus, each of two UCCJA states could decide that it was the only state with authority over the custody of a particular child. That happened in a number of cases,(fn7) and it would have continued to happen because there was no legal obstacle to this kind of conflict among UCCJA states.
The PKPA alleviates that problem to a large degree, by placing some important provisions of the uniform act in a federal statute, § 1738A. State legislatures, of course, cannot alter that federal statutory language. State courts may be tempted to differ with one another in their interpretation of the federal statute. However, state courts are impelled toward uniform interpretations of § 1738A by their knowledge that a split among decisions of various courts on a point of federal law is one of the problems that regularly leads the U.S. Supreme Court to grant certiorari. This reason for having the PKPA---to obtain uniform statutory language and uniform interpretation of it---is still as valid today as it was in 1980.(fn8)
A third reason for § 1738A was to enact the two improvements in statutory language that were mentioned near the beginning of this article. One of these differences relates to jurisdiction to make the initial award of a child's custody. The other relates to later modification of that award.
Both the UCCJA and § 1738A treat initial jurisdiction by substantially different rules than modification jurisdiction. Basically, both statutes let a state make an initial award if that state satisfies any one of four bases of jurisdiction, provided the dispute is not already being litigated in another state that also meets one of the four bases. The rule is quite different, however, after any state has made an initial custody order. The issue then becomes jurisdiction to modify. Both the UCCJA and the PKPA make that type of jurisdiction ordinarily exclusive to the state that made the initial decree, even if there is no proceeding currently pending there.
The crucial PKPA-UCCJA difference pertaining to initial jurisdiction is rather
simple. As stated, the UCCJA lists four bases of jurisdiction: home state, significant...
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