Henry, Matter of

• Decision Date: 18 December 1997
• Docket Number: DR-1084
• Citation: 951 P.2d 135,326 Or. 166
• Parties: In the Matter of the Relationship of Douglas HENRY, Petitioner on Review, and Sharon Keppel, nka Sharon Keppel Allen, Respondent on Review. CC 93-; CA A89111; SC S43648.
• Court: Oregon Supreme Court

Page 135

951 P.2d 135

326 Or. 166

In the Matter of the Relationship of Douglas HENRY,

Petitioner on Review,

and

Sharon Keppel, nka Sharon Keppel Allen, Respondent on Review.

CC 93-DR-1084; CA A89111; SC S43648.

Supreme Court of Oregon,

In Banc.

Argued and Submitted March 6, 1997.

Decided Dec. 18, 1997.

Steven M. Richkind, Sandy, argued the cause and filed the petition for petitioner on review.

Clayton C. Patrick, of Patrick & Meadowbrook, Salem, argued the cause and filed the briefs for respondent on review.

William M. Hilton, Santa Clara, CA, argued the cause and filed an amicus curiae brief in propria persona.

GRABER, Justice.

The issue before us in this interstate custody dispute is whether the federal Parental Kidnaping Prevention Act (PKPA), 28 U.S.C. § 1738A (1994), and the Uniform Child Custody Jurisdiction Act (UCCJA), ORS 109.700 to 109.930, allow Oregon to modify a particular California custody decree. The trial court modified the decree, and the Court of Appeals affirmed. Henry and Keppel, 143 Or.App. 203, 205, 922 P.2d 712 (1996). We reverse the decision of the Court of Appeals and remand the case to the trial court for further proceedings.

The Court of Appeals reviewed the facts in this case de novo, pursuant to ORS 19.125(3). Ibid. As permitted by ORS 19.125(4), we limit our review to questions of law and take the following facts from the findings of the Court of Appeals.

"Mother and father, who never married, began living together in California in the spring of 1983. Their daughter was born in July 1984. After the parties separated in July 1985, mother moved with the child to Oregon, where they have resided ever since. In December 1985, father began a proceeding in California to establish paternity and joint custody. Mother sought sole custody. In October 1987, the California court ordered joint legal custody, with physical custody awarded to mother. Father was granted visitation, including all but three weeks of summer vacation, spring break, and half of the Christmas holidays. Father exercises those visitation rights in California and, two to four times a year, he spends four days with his daughter, either in California or in Oregon.

"In June 1988, father filed an action in Jackson County to enforce the California order against mother. Mother was never served. Five years later, mother moved to change the venue of father's enforcement action to Josephine County. Over father's objection, her motion was granted. In March 1994, mother obtained an order to show cause in Josephine County, seeking sole custody and limiting father's visitation. Father moved to dismiss the modification proceeding for lack of jurisdiction. The court denied father's motion, as well as his later motion for reconsideration. The court modified the California decree to award mother sole legal custody and to modify father's visitation." Ibid. (footnote omitted).

Father appealed the trial court's judgment, arguing that the court erred in modifying the decree because, under the PKPA and the UCCJA, California courts have continuing jurisdiction over this matter. Mother argued that California does not have continuing jurisdiction in the circumstances and that an Oregon court can modify the decree. The Court of Appeals affirmed, holding that there is not "substantial evidence" on the custody matter in California and, therefore, that Oregon can modify the decree. Id. at 208-09, 922 P.2d 712. This court allowed father's petition for review.

To place our discussion of the specific issues in context, we recount briefly the history of both the UCCJA and the PKPA. The Commissioners on Uniform State Laws drafted the UCCJA in 1968 to resolve jurisdictional conflicts in child custody cases and to promote recognition and enforcement of out-of-state custody decrees. Grubs v. Ross, 291 Or. 263, 268-69, 630 P.2d 353 (1981). All states have adopted some form of the UCCJA. Anne B. Goldstein, The Tragedy of the Interstate Child: A Critical Reexamination of the Uniform Child Custody Jurisdiction Act and the Parental Kidnaping Prevention Act, 25 U.C. Davis L. Rev. 845, 849 (1992). Oregon has codified the UCCJA at ORS 109.700 to 109.930. See Stubbs v. Weathersby, 320 Or. 620, 624-25, 892 P.2d 991 (1995) (summarizing the purposes of the UCCJA, as set forth in ORS 109.720(1)).

According to the United States Supreme Court, the UCCJA did not achieve its goal of resolving jurisdictional disputes. See Thompson v. Thompson, 484 U.S. 174, 181, 108 S.Ct. 513, 517, 98 L.Ed.2d 512 (1988) (so stating). Contributing to that failure were the lack of uniformity in the versions of the UCCJA adopted by the various states and the refusal by some courts to give full faith and credit to foreign custody decrees on the ground that such decrees are subject to modification in keeping with the best interests of the child. Id. at 180-81, 108 S.Ct. at 516-17. In 1980, Congress attempted to resolve jurisdictional disputes by enacting the PKPA "to provide for nationwide enforcement of custody orders made in accordance with the terms of the UCCJA." Id. at 181, 108 S.Ct. at 517.

Because the PKPA is a federal law and the UCCJA is a state law, in examining the relationship between them we consider whether the doctrine of federal preemption applies. In general, under the Supremacy Clause, Congress has the power to enact an otherwise valid law that preempts state law, ¹ and it may preempt state law in one of three ways. "Federal preemption may occur 'by express provision, by implication, or by a conflict between federal and state law.' " Shaw v. PACC Health Plan, Inc., 322 Or. 392, 398, 908 P.2d 308 (1995) (quoting New York Blue Cross v. Travelers Ins., 514 U.S. 645, 654, 115 S.Ct. 1671, 1676, 131 L.Ed.2d 695 (1995)). See also Laurence H. Tribe, American Constitutional Law (2d ed 1988) § 6-25, at 481 n. 14 (explaining the three types of preemption). In deciding whether a federal law preempts a state law, a court's task is to determine whether Congress intended for the federal law in question to supersede state law. Shaw, 322 Or. at 398, 908 P.2d 308 (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890, 2899, 77 L.Ed.2d 490 (1983)).

The United States Supreme Court has been reticent to find that federal law preempts state law in the area of domestic relations. In that field, the Court has asked "whether Congress has 'positively required by direct enactment' that state law be pre-empted. Wetmore v. Markoe, 196 U.S. 68, 77[, 25 S.Ct. 172, 175, 49 L.Ed. 390] (1904)." Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979).

Here, Congress expressly has required in the PKPA that state law respecting certain proceedings to modify child custody determinations be preempted:

"The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State." 28 U.S..C § 1738A(a) (emphasis added).

The United States Supreme Court has held that similar wording expressly preempts state law. For example, in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 514-17, 112 S.Ct. 2608, 2616-18, 120 L.Ed.2d 407 (1992), the United States Supreme Court found express preemption both in a 1965 federal statute that provided that "[n]o statement relating to smoking and health shall be required" in cigarette advertising or package labeling that otherwise complies with the act and in a 1969 statute that replaced the foregoing provision with a statement that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to" cigarette advertising or promotion that otherwise complies with the act. ²

Providing further support for a conclusion that Congress intended expressly to preempt state law on the present topic is the statement of Congressional Findings and Declaration of Purpose that follows the PKPA. Subsection (b) of that statement provides in part:

"[I]t is necessary * * * 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." (Emphasis added.)

Congress further stated, in subsection (c)(5) of the statement of Congressional Findings and Declaration of Purpose, that one of the general purposes of the act is to

"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."

The terms of the statute, combined with those formal statements of congressional intent, show that Congress meant for the PKPA to preempt state law, including the UCCJA. ³ We hold that the PKPA preempts state law on the question of modifying another state's child custody decree.

Having so held, we turn to the PKPA to resolve the dispute now before us. The PKPA requires states to enforce a child custody determination entered by a court of a sister state, if that determination was "made consistently with the provisions of" the act. 28 U.S.C. § 1738A(a). A court's custody determination is consistent with the provisions of the act if two conditions are met. 28 U.S.C. § 1738A(c). First, the state that entered the decree must have had jurisdiction under its own laws. 28 U.S.C. § 1738A(c)(1). Second, one of the five conditions listed in section 1738A(c)(2)(A) through (E) must have been met. ⁴

In this case, we must determine whether those two requirements were satisfied at the time that a California court made the initial custody determination in October 1987. The first requirement is that California law give its courts jurisdiction. Pursuant to section 200 of the California Family...