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ROGERS v. PLATT

July 26, 1986

Marita Rogers, Plaintiff
v.
Alan and Kathy Platt, Defendants


George H. Revercomb, Judge.


The opinion of the court was delivered by: REVERCOMB

GEORGE H. REVERCOMB, Judge

 This matter is before the Court on plaintiff's Motion for a Declaratory Judgment and Permanent Injunction. The Court has thoroughly considered the memoranda submitted in support of and in opposition to the motion and heard argument on July 11, 1986.

 Plaintiff, Marita Rogers, a California citizen and resident, is the natural mother of a baby boy who was born in a California hospital on June 14, 1985. Prior to the child's birth, plaintiff expressed a desire to give the child up for adoption. Plaintiff's doctor contacted a prospective adoptive couple, defendants Alan and Kathy Platt, who are citizens and residents of the District of Columbia.

 Subsequently, plaintiff changed her mind about the adoption and filed an action against the Platts in a California court for the return of her child. Under California law, a parent retains a right to reclaim a child prior to signing a consent to adoption form. Plaintiff has never signed such an authorization.

 The day after plaintiff commenced litigation in the Superior Court of California, defendants instituted guardianship proceedings in the Superior Court of the District of Columbia. Each of these Courts has asserted jurisdiction over the matters pursuant to the Parental Kidnapping Prevention Act, 28 U.S.C. Sec. 1738A (PKPA). Under the Act it is possible for only one state to have jurisdiction, and all other states are obliged to give full faith and credit to a determination by a court of that state. *fn1" The sole issue before this Court is to declare which state court has properly asserted jurisdiction.

 Preliminary to deciding the issue of which state has jurisdiction under the PKPA, the Court must address defendants' claim that the case is not ripe for disposition. Defendant argues that plaintiff must first exhaust potential state remedies. Defendant suggests that there has yet to be a trial on the merits of custody in either California or the District of Columbia. While this may be correct, it does not preclude federal court intervention at this juncture to determine the narrow issue of jurisdiction under the federal statute. This issue is at present justiciable because the two concurrent assertions of jurisdiction create a violation of the federal Act which is properly challenged before this Court. To conclude otherwise would be to force each party to endure protracted litigation in their respective states which is contrary to the intent and purpose of the Act. Defendant cites no case authority, and the Court has found none, which would support her contention that plaintiff must exhaust state remedies first. Additionally, the Court finds no Congressional intent in the Act's legislative history to support this proposition.

 Plaintiff argues next that it is premature for this Court to exercise jurisdiction because certain prerequisites to addressing the jurisdictional issue have not arisen. Defendant contends this Court must wait for (1) final conflicting custody determinations, with inherent conflicting assertions of jurisdiction in violation of the PKPA or (2) a determination by the one court that it will not enforce a custody order of the other court.

 In an order of the Superior Court of the District of Columbia issued on March 21, 1986, the Court found, inter alia, that D.C. was the home state of the child, and that the California Court had asserted jurisdiction inconsistently with the PKPA. There is no dispute that two states are in the process of determining the custody of the child. Thus, there is currently a clear violation of plaintiff's right under the PKPA to have only one state at a time make a custody determination affecting the child. Additionally, there can be no doubt that the Superior Court of the District of Columbia will not enforce even the temporary custody determination made by the Superior Court of California.

 There is no justification, in either the PKPA's legislative history or case law involving federal jurisdiction under the PKPA, for this Court to refrain from asserting jurisdiction when there is a clear and present inconsistent assertion of jurisdiction. Templeton v. Witham, 595 F. Supp. 770 (S.D. Cal. 1984), is directly on point. There, a California Court had issued a custody decree, while an Oregon Court, without issuing any such decree, had taken jurisdiction over the custody dispute. Id. at 771. The Templeton Court concluded that it had jurisdiction under the PKPA to determine whether Oregon or California had power over the child's custody, id. at 772, and then held the California decree enforceable.

 Moreover, even in cases in which two custody decrees had been granted by courts of different states, federal courts resolving the underlying custody jurisdiction dispute have observed that conflicting decrees are not a prerequisite to federal court action pursuant to the PKPA. For example, in DiRuggiero v. Rodgers, 743 F.2d 1009 (3d Cir. 1984), the court noted that "the intent of the PKPA is to avoid the multiple exercise of jurisdiction over custody." Id. at 1015. Additionally, the court in Martinez v. Reed, 623 F. Supp. 1050 (E.D. La. 1985), aff'd mem. 783 F.2d 1061 (5th Cir. 1986), also concluded that "federal question jurisdiction exists to enforce compliance with PKPA where courts of two states asserted jurisdiction over a custody determination." Id. at 1052. See Flood v. Braaten, 727 F.2d 303 at 307, 312 (3rd Cir. 1984) (answering in affirmative the question of whether federal court can be employed to correct violation of Sec. 1738A arising when a state court improperly asserts jurisdiction over child custody case.)

 Defendant's final preliminary argument is that this Court lacks subject matter jurisdiction because there is no express statutory grant of federal court jurisdiction in the PKPA. This issue has been addressed by many courts which have concluded federal courts have federal question jurisdiction under 28 U.S.C. Sec. 1331(a) to resolve inconsistent state court assertions of jurisdiction. Heartfield v. Heartfield, 749 F.2d 1138, 1141 (5th Cir. 1985); DiRuggiero, 743 F.2d 1009; Flood, 727 F.2d 303; Wyman v. Larner 624 F. Supp 240, 243 (S.D. Ind. 1985); Martinez, 623 F. Supp 1050; Templeton, 595 F. Supp 770.

 This issue was most extensively dealt with in Flood, 727 F.2d 303. The United States Court of Appeals for the Third Circuit was presented with the question:

 
if a state court does not comply with the mandates of Sec. 1738A -- whether by asserting jurisdiction over a child custody case in violation of Sec. 1738A or by refusing to enforce another state's custody decree in violation of Sec. 1738A -- may a federal ...

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