814 F.2d 683 (D.C. Cir. 1987), 86-7011, Rogers v. Platt

Docket Nº:86-7011.
Citation:814 F.2d 683
Party Name:Marita ROGERS v. Alan PLATT and Kathy Platt, Appellants.
Case Date:March 17, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 683

814 F.2d 683 (D.C. Cir. 1987)



Alan PLATT and Kathy Platt, Appellants.

No. 86-7011.

United States Court of Appeals, District of Columbia Circuit

March 17, 1987

Argued Oct. 10, 1986.

As Amended March 24, 1987.

Page 684

Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-01516).

Stephen M. Schneebaum, with whom Judith Bartnoff, Washington, D.C., was on brief, for appellants.

Stephen A. Fennell, with whom Jeanne E. Davidson, Washington, D.C., was on brief, for appellee.

Before EDWARDS and SILBERMAN, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Concurring opinion filed by Circuit Judge EDWARDS.

Concurring statement filed by Senior Circuit Judge McGOWAN.

SILBERMAN, Circuit Judge:

This case stems from an interstate child custody dispute that has given rise to conflicting rulings of the courts of the State of California and the District of Columbia, both of which purport to assert jurisdiction consistent with the Parental Kidnaping Prevention Act. Pub.L. No. 96-611, 94 Stat. 3569 (1980), codified at 28 U.S.C. Sec. 1738A (1982) ("PKPA"). After the rulings, the federal district court in the District of Columbia entertained an action to declare which of the two "state" courts had "jurisdiction under the PKPA" 1 and held that the California court had jurisdiction because, although neither sovereign qualified as the child's "home state," California met the Act's alternative jurisdictional test, which turns on "the best interest of the

Page 685

child." Appellants challenged both determinations, asserting that the District of Columbia was the home state and, alternatively, that properly applying the best interest of the child test leads to the conclusion that the District of Columbia Superior Court properly asserted jurisdiction. We sua sponte ordered rebriefing directed to whether the federal courts had jurisdiction over the cause, and Appellants now also challenge the district court's exercise of jurisdiction. We hold the district court lacked subject matter jurisdiction and accordingly do not reach the merits.


Appellee, Marita Rogers, a California resident, gave birth to a baby boy on June 14, 1985 in a California hospital. Approximately one month before the birth of her son, Ms. Rogers had indicated to her doctor a desire to put the child up for adoption. The doctor contacted a prospective couple, Alan and Kathy Platt, who are residents of the District of Columbia. A few hours after giving birth, Ms. Rogers signed a form releasing her baby to the Platts, who had flown to California after learning from the doctor that Ms. Rogers had gone into labor. Shortly thereafter, Ms. Rogers left the hospital. She never saw the child after its birth. Two days later, the Platts and the child returned to the District of Columbia, where the child has since resided.

Ms. Rogers subsequently changed her mind about the adoption and, on November 21, 1985, filed an action in California state court to recover custody of the child. The following day the Platts initiated an action in the District of Columbia Superior Court to establish guardianship. Acting first, the District of Columbia court denied a motion by Ms. Rogers to dismiss the Platt's custody petition and asserted jurisdiction purportedly consistent with 28 U.S.C. Sec. 1738A (1982), the operative part of the PKPA. The court also denied Ms. Rogers' subsequent motion to certify the section 1738A issue for interlocutory appeal to the District of Columbia Court of Appeals, but has now stayed the merits of the case, pending the resolution of proceedings in federal court. One month later, the California court also purported to assert jurisdiction consistent with the PKPA and, in addition, awarded custody of the child to Ms. Rogers.

Under the PKPA, a state court's 2 child custody decree must be enforced by all other states if (1) "such court has jurisdiction under the law of such State," and (2) one of the conditions set forth in subsection 1738A(c)(2) is also met. 3 These conditions

Page 686

are not prerequisites for a state's original exercise of jurisdiction over a custody dispute, but rather determine only whether a state's exercise of jurisdiction under its own authority places a federal duty upon other states. Under the first condition, the state court issuing the custody decree must be located in the "home state" of the child on the date of the commencement of the proceeding, or located in the state that "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." 28 U.S.C. Sec. 1738A(c)(2)(A). The "home state" is defined as:

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.

28 U.S.C. Sec. 1738A(b)(4).

If the court concludes there is no "home state," it may meet the second condition if asserting jurisdiction is in "the best interest of the child" as determined by examining "significant connection[s]" ("other than mere physical presence") the child and the contestants have to the state, and whether "substantial evidence concerning the child's present or future care, protection, training, and personal relationships" is located within the state. 28 U.S.C. Sec. 1738A(c)(2)(B). Even if another state does meet the home state test, under the third condition, the state may still assert jurisdiction consistent with the statute if "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 he has been subjected to or threatened with mistreatment or abuse." 28 U.S.C. Sec. 1738A(c)(2)(C). If no other condition of subsection 1738A(c) is met, 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 of the child," that state may assert jurisdiction consistent with the statute if "it is in the best interest of the child" to do so. 28 U.S.C. Sec. 1738A(c)(2)(D). Although it is possible that more than one state might meet section 1738A(c)'s requirements, the Statute resolves such a conflict in favor of the state that acts first: a state is prohibited from exercising custody jurisdiction once another state has assumed jurisdiction over the same custody dispute consistent with the Statute. 28 U.S.C. Sec. 1738A(g).

In light of the apparently conflicting interpretations of the PKPA by the California and District of Columbia courts, Ms. Rogers filed a complaint in the United States District Court for the District of Columbia, seeking: (1) a declaration as to which of the two states has custody jurisdiction consistent with the PKPA; (2) an injunction prohibiting the Platts from continuing to litigate in the courts of the District of Columbia; and (3) an order enforcing the California custody decree in the District of Columbia.

Page 687

The district court asserted jurisdiction over Ms. Rogers' complaint, following the Third Circuit in Flood v. Braaten, 727 F.2d 303 (3d Cir.1984), which concluded that "[a]bsent some tribunal capable of enjoining violations of the strict and uniform requirements of Sec. 1738A, the Congressional policy underlying the enactment would be thwarted." Id. at 310. Proceeding to the merits--the construction of the PKPA--the District Court held that neither California nor the District of Columbia was the "home state" because the child had not literally "lived from birth with" either the plaintiff or defendants in either state. The court reasoned that the child did not live "from birth" in the District of Columbia because for the first three days of his life he was in California. And on the other hand, the child cannot be said to have ever "lived with" his mother in California because she did not even see the child after it was born. Following the statutory scheme, the district court then considered the "best interest of the child" and concluded the California court had properly asserted jurisdiction because the child has more significant connections to California: "the child's natural mother lives in California, the mother began litigation over the child in California first, and the child was born in California." Although the child has lived in the District of Columbia during the first year of his life and is present there now, the court discounted that connection because under the statute "physical presence of the child alone is not sufficient or necessary to evoke custody jurisdiction." 641 F.Supp. 381. The Platts appealed to this court.


Article III of the Constitution permits federal courts to hear all cases "arising under" federal law. U.S. Const. art III, Sec. 2. The scope of this authority has been held to encompass all suits in which federal law is an "ingredient." Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 737, 823, 6 L.Ed. 204 (1824). The constitutional power, however, is not self-executing, and it was not until 1875 that Congress granted federal district courts original jurisdiction over any civil action "arising under the Constitution or laws of the United States or treaties made, or which shall be made, under their authority." Judiciary Act of 1875, 18 Stat. 470 (1875) (codified as amended at 28 U.S.C. Sec. 1331 (1982)). Although the language of section 1331...

To continue reading