Flood v. Braaten

• Decision Date: 21 July 1983
• Docket Number: No. 82-5765,82-5765
• Citation: 727 F.2d 303
• Parties: Betty Braaten FLOOD, Appellant, v. Gerald C. BRAATEN, Appellee. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 303

727 F.2d 303

Betty Braaten FLOOD, Appellant, v. Gerald C. BRAATEN, Appellee.

No. 82-5765.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit

Rule 12(6) July 21, 1983.

Decided Jan. 31, 1984.

As Amended Feb. 16, 1984.

Lomurro, Eastman & Collins, Freehold, N.J., for appellant; Donald M. Lomurro, Freehold, N.J., on brief.

Robert A. Alphson, Grand Forks, N.D., for appellee.

Before ADAMS and HIGGINBOTHAM, Circuit Judges, and TEITELBAUM, District Judge. ^*

OPINION OF THE COURT

ADAMS, Circuit Judge.

Every year between 25,000 and 100,000 children of broken marriages are kidnapped ¹ by a parent attempting forcibly to obtain custody over a child living with the other parent. ² The emotional cost of this "child snatching"--which must be borne in large measure by young persons who have already watched their parents' marriage fail and their families split asunder--is overwhelming. ³ Yet only recently has this national tragedy received federal legislative attention. In 1980, Congress declared in the Parental Kidnapping Prevention Act (PKPA), P.L. 96-611, Sec. 7, 94 Stat. 3568, that the "often inconsistent and conflicting" practices of the state courts that decide child custody disputes "contribute" to child snatching. 28 U.S.C. Sec. 1738A note (Supp. V 1981). To correct the defects in the legal system that encourage parents to abduct their own children, Congress enacted standards governing state court recognition of child custody decrees from other states and state court assertion of jurisdiction to modify custody decrees from other states. See 28 U.S.C. Sec. 1738A(a)-(g) (Supp. V 1981). The question raised by this appeal is whether the federal courts may exercise jurisdiction to enforce compliance with the provisions of the PKPA.

In the matter before us, the district judge apparently concluded that a federal court may never entertain such a claim under the PKPA and summarily dismissed the complaint of Betty Braaten Flood even before an answer was filed. While the issue is not free from doubt, we cannot agree with the district judge that the PKPA can never support federal question jurisdiction in a lawsuit connected with a child custody dispute. Accordingly, we will remand for further proceedings.

I.

The facts of this case are not atypical of the distressing circumstances that give rise to child snatching. We recount these facts in some detail because they illustrate the consequences of interstate jurisdictional conflict over the enforcement and modification of a child custody decree.

Betty Braaten Flood and Gerald Braaten were divorced in North Dakota on July 22, 1977. Originally, the divorce decree awarded custody of the four minor children of the marriage (Jim, Jason, Joel and Shawna) to Betty, but on August 24, 1979 the parties agreed to amend the custody arrangement. Under the amended arrangement, Betty was free to leave North Dakota with the children and Gerald had the right to custody of the children during the summer months of each year. While Gerald remained in North Dakota, Betty and the children moved to New York.

When the children returned to North Dakota to visit relatives during the 1979 Thanksgiving holiday, the custody battle commenced. Gerald obtained an ex parte order on December 4, 1979 awarding custody of the children to him. ⁴ On December 10, Betty managed to have the ex parte order rescinded, and regained custody of the children. She immediately returned to New York with the children and shortly thereafter moved to New Jersey.

A few weeks later, ⁵ a North Dakota district court ordered Betty to show cause why Gerald should not be awarded custody of the children. After a limited appearance by Betty's lawyer, the North Dakota court ruled on August 6, 1980, that custody of the four children should be transferred to Gerald. Over objection by Betty's lawyer, the North Dakota court decided without explanation that it had jurisdiction to order this modification of the custody decree. ⁶

Four days later, Gerald seized two of the children in New Jersey (Joel and Shawna) and took them back to North Dakota. ⁷ Betty responded by filing a complaint with the New Jersey Superior Court, asking that custody of the four children be awarded to her. Shortly thereafter, on November 6, 1980, Betty returned to North Dakota and filed a motion requesting that the North Dakota custody decree be modified to give her custody of the four children once again. On that same day, Betty tried to abduct Joel and Shawna. Although her attempts to regain Shawna failed, she successfully removed Joel from North Dakota and returned to New Jersey with him.

After eleven more months of legal maneuvering by the parents, the New Jersey court ruled that it had jurisdiction to modify the custody decree. In its September 23, 1981 opinion, the court held that New Jersey was the proper forum to resolve the custody dispute under the Uniform Child Custody Jurisdiction Act ⁸ and denied Gerald's attempt to have the North Dakota custody decree enforced. ⁹ Gerald sought to appeal this ruling, but neither the Appellate Division nor the Supreme Court of New Jersey granted him leave to appeal. Following investigation by the family services division of the state probation department, the New Jersey Superior Court awarded custody of the four children to Betty on March 15, 1982. Apparently inspired by this new custody decree, Betty travelled to North Dakota and unsuccessfully attempted to abduct Shawna on April 7, 1982. ¹⁰

By late autumn 1982, this legal feud had reached an impasse. The courts of New Jersey and North Dakota each refused to enforce the custody decree of the other. ¹¹ Each state had asserted jurisdiction over the matter and each persisted in awarding custody to the parent residing within its borders. Over a period of two-and-one-half years, Betty had been held in contempt by the North Dakota court at least three times, while Gerald had been held in contempt by the New Jersey court at least once. Moreover, both parents had been criminally charged for abducting their own children.

Seeking to end the stalemate, Betty filed a complaint in the United States District Court for the District of New Jersey on November 29, 1982. In her complaint she requested, first, a stay of all further state judicial proceedings between the parties pending the federal court's decision, and second, a federal court order enforcing the custody decree entered by the New Jersey court. The complaint asserted that federal jurisdiction existed under 28 U.S.C. Sec. 1738A, the provision codifying the PKPA's rules for state court adjudication of custody cases. On the same day, November 29, 1982, the district court on its own motion dismissed Betty's complaint without prejudice for failure to state a basis of jurisdiction. That same day also, Betty filed a notice of appeal to this Court. Before us, she contends that the district judge erred in summarily dismissing her complaint.

II.

Federal courts have traditionally avoided involvement in child custody disputes. It was, presumably, this tradition that persuaded the district judge to dismiss summarily as well as sua sponte Betty Flood's complaint. We must therefore begin our analysis by determining whether the doctrines supporting the general rule of abstention in custody matters also foreclose a federal court from exercising its power to enforce compliance with 28 U.S.C. Sec. 1738A. ¹²

At the outset of our analysis, we emphasize that we are considering only the most restricted role for federal courts under Sec. 1738A. The issue before us is not whether federal courts can enter child custody decrees or even whether federal courts should be generally available for interstate enforcement of custody decrees. Rather, we understand the question on this appeal to be considerably more narrow: 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 court ever be employed to correct such a violation of federal law? ¹³

The main bar to federal jurisdiction in cases involving child custody has been the "domestic relations exception" to diversity jurisdiction. Since the early declaration in Barber v. Barber, 62 U.S. (21 How.) 582, 584, 16 L.Ed. 226 (1859), "disclaim[ing] altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony," federal courts have declined to assert diversity jurisdiction over actions for divorce, alimony, child support, child custody and other matters deemed to involve "domestic relations." See Solomon v. Solomon, 516 F.2d 1018, 1021-26 (3d Cir.1975); Magaziner v. Montemuro, 468 F.2d 782, 787 (3d Cir.1972); Albanese v. Richter, 161 F.2d 688, 689 (3d Cir.1947). ¹⁴ Child custody matters in particular were first brought within the scope of the domestic relations exception only in dictum. In re Burrus, 136 U.S. 586, 593-4, 10 S.Ct. 850, 852-3, 34 L.Ed. 1500 (1890). But in the Albanese decision, our Court squarely held that federal district courts may not exercise diversity jurisdiction over a suit to enforce a father's obligations to his child. 161 F.2d at 689. See also Solomon, supra, 516 F.2d at 1024-25. ¹⁵

Although the domestic relations exception has often been criticized, ¹⁶ we have no occasion today to question its general viability. After more than a century of silence, Congress may be said to have acquiesced in this court-crafted exclusion of jurisdiction granted by the diversity statute, 28 U.S.C. Sec. 1332 (1976). See Solomon, supra, 516 F.2d at 1025; Phillips, Nizer, supra note 14, 490 F.2d at 514. Nor do we have any need to define the scope of the amorphous term "domestic relations." For our purposes, it is sufficient to note that the domestic relations exception per se applies only to actions in...