[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC1738A]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART V--PROCEDURE
CHAPTER 115--EVIDENCE; DOCUMENTARY
Sec. 1738A. Full faith and credit given to child custody
determinations
(a) The appropriate authorities of every State shall enforce
according to its terms, and shall not modify except as provided in
subsections (f), (g), and (h) of this section, any custody determination
or visitation determination made consistently with the provisions of
this section by a court of another State.
(b) As used in this section, the term--
(1) ``child'' means a person under the age of eighteen;
(2) ``contestant'' means a person, including a parent or
grandparent, who claims a right to custody or visitation of a child;
(3) ``custody determination'' means a judgment, decree, or other
order of a court providing for the custody of a child, and includes
permanent and temporary orders, and initial orders and
modifications;
(4) ``home State'' means the State in which, immediately
preceding the time involved, the child lived with his parents, a
parent, or a person acting as parent, for at least six 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 such persons.
Periods of temporary absence of any of such persons are counted as
part of the six-month or other period;
(5) ``modification'' and ``modify'' refer to a custody or
visitation determination which modifies, replaces, supersedes, or
otherwise is made subsequent to, a prior custody or visitation
determination concerning the same child, whether made by the same
court or not;
(6) ``person acting as a parent'' means a person, other than a
parent, who has physical custody of a child and who has either been
awarded custody by a court or claims a right to custody;
(7) ``physical custody'' means actual possession and control of
a child;
(8) ``State'' means a State of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, or a territory or
possession of the United States; and
(9) ``visitation determination'' means a judgment, decree, or
other order of a court providing for the visitation of a child and
includes permanent and temporary orders and initial orders and
modifications.
(c) A child custody or visitation 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 of the proceeding and the child is absent from such
State because of his removal or retention by a contestant or for
other reasons, and a contestant continues to live in such State;
(B)(i) it appears that no other State would have
jurisdiction under subparagraph (A), and (ii) it is in the best
interest of the 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 the child, a sibling, or
parent of the child 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 the State whose jurisdiction is in issue is the more
appropriate forum to determine the custody or visitation of the
child, and (ii) it is in the best interest of the child that
such court assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to
subsection (d) of this section.
(d) The jurisdiction of a court of a State which has made a child
custody or visitation 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.
(e) Before a child custody or visitation determination is made,
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 a child.
(f) A court of a State may modify a determination of the custody of
the same child made by a court of another State, if--
(1) it has jurisdiction to make such a child custody
determination; and
(2) the court of the other State no longer has jurisdiction, or
it has declined to exercise such jurisdiction to modify such
determination.
(g) A court of a State shall not exercise jurisdiction in any
proceeding for a custody or visitation determination commenced during
the pendency of a proceeding in a court of another State where such
court of that other State is exercising jurisdiction consistently with
the provisions of this section to make a custody or visitation
determination.
(h) A court of a State may not modify a visitation determination
made by a court of another State unless the court of the other State no
longer has jurisdiction to modify such determination or has declined to
exercise jurisdiction to modify such determination.
(Added Pub. L. 96-611, Sec. 8(a), Dec. 28, 1980, 94 Stat. 3569; amended
Pub. L. 105-374, Sec. 1, Nov. 12, 1998, 112 Stat. 3383; Pub. L. 106-386,
div. B, title III, Sec. 1303(d), Oct. 28, 2000, 114 Stat. 1512.)
Amendments
2000--Subsec. (c)(2)(C)(ii). Pub. L. 106-386 substituted ``the
child, a sibling, or parent of the child'' for ``he''.
1998--Subsec. (a). Pub. L. 105-374, Sec. 1(a), substituted
``subsections (f), (g), and (h) of this section, any custody
determination or visitation determination'' for ``subsection (f) of this
section, any child custody determination''.
Subsec. (b)(2). Pub. L. 105-374, Sec. 1(b), inserted ``or
grandparent'' after ``parent''.
Subsec. (b)(3). Pub. L. 105-374, Sec. 1(c), struck out ``or
visitation'' after ``for the custody''.
Subsec. (b)(5). Pub. L. 105-374, Sec. 1(d), substituted ``custody or
visitation determination'' for ``custody determination'' in two places.
Subsec. (b)(9). Pub. L. 105-374, Sec. 1(e), added par. (9).
Subsec. (c). Pub. L. 105-374, Sec. 1(f), substituted ``custody or
visitation determination'' for ``custody determination'' in introductory
provisions.
Subsec. (c)(2)(D)(i). Pub. L. 105-374, Sec. 1(g), inserted ``or
visitation'' after ``determine the custody''.
Subsecs. (d), (e). Pub. L. 105-374, Sec. 1(h), (i), substituted
``custody or visitation determination'' for ``custody determination''.
Subsec. (g). Pub. L. 105-374, Sec. 1(j), which directed substitution
of ``custody or visitation determination'' for ``custody
determination'', was executed by making the substitution in two places
to reflect the probable intent of Congress.
Subsec. (h). Pub. L. 105-374, Sec. 1(k), added subsec. (h).
Report on Effects of Parental Kidnaping Laws in Domestic Violence Cases
Pub. L. 106-386, div. B, title III, Sec. 1303(a)-(c), Oct. 28, 2000,
114 Stat. 1512, provided that:
``(a) In General.--The Attorney General shall--
``(1) conduct a study of Federal and State laws relating to
child custody, including custody provisions in protection orders,
the Uniform Child Custody Jurisdiction and Enforcement Act adopted
by the National Conference of Commissioners on Uniform State Laws in
July 1997, the Parental Kidnaping Prevention Act of 1980 [see Short
Title of 1980 Amendments note set out under section 1305 of Title
42, The Public Health and Welfare] and the amendments made by that
Act, and the effect of those laws on child custody cases in which
domestic violence is a factor; and
``(2) submit to Congress a report describing the results of that
study, including the effects of implementing or applying model State
laws, and the recommendations of the Attorney General to reduce the
incidence or pattern of violence against women or of sexual assault
of the child.
``(b) Sufficiency of Defenses.--In carrying out subsection (a) with
respect to the Parental Kidnaping Prevention Act of 1980 and the
amendments made by that Act, the Attorney General shall examine the
sufficiency of defenses to parental abduction charges available in cases
involving domestic violence, and the burdens and risks encountered by
victims of domestic violence arising from jurisdictional requirements of
that Act and the amendments made by that Act.
``(c) Authorization of Appropriations.--There is authorized to be
appropriated to carry out this section $200,000 for fiscal year 2001.''
[For definitions of ``domestic violence'' and ``sexual assault'' as
used in section 1303(a)-(c) of Pub. L. 106-386, set out above, see
section 1002 of Pub. L. 106-386, set out as a note under section 3796gg-
2 of Title 42.]
Congressional Findings and Declaration of Purpose
Section 7 of Pub. L. 96-611 provided that:
``(a) The Congress finds that--
``(1) there is a large and growing number of cases 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 of Columbia, the Commonwealth of
Puerto Rico, and the territories and possessions of the United
States;
``(2) the laws and practices by which the 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;
``(3) those characteristics of the law and practice in such
cases, along with the limits imposed by a Federal system on the
authority of each 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 of children, the disregard of court orders, excessive
relitigation of cases, obtaining of conflicting orders by the courts
of various 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 the 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 of children 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 [enacting
this section and section 663 of Title 42, The Public Health and Welfare,
amending sections 654 and 655 Title 42, and enacting provisions set out
as notes under this section, sections 663 and 1305 of Title 42, and
section 1073 of Title 18, Crimes and Criminal Procedure] 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) avoid jurisdictional competition and conflict between
State courts in matters of child custody and visitation which have
in the past resulted in the shifting of children from 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.''
State Court Proceedings for Custody Determinations; Priority Treatment;
Fees, Costs, and Other Expenses
Section 8(c) of Pub. L. 96-611 provided that: ``In furtherance of
the purposes of section 1738A of title 28, United States Code, as added
by subsection (a) of this section, State courts are encouraged to--
``(1) afford priority to proceedings for custody determinations;
and
``(2) award to the person entitled to custody or visitation
pursuant to a custody determination which is consistent with the
provisions of such section 1738A, necessary travel expenses,
attorneys' fees, costs of private investigations, witness fees or
expenses, and other expenses incurred in connection with such
custody determination in any case in which--
