Adoption and child custody laws are, generally speaking, left to the states. Some states have greater protection for biological parents’ rights, and some states give greater deference to adoptive parents – rationalizing that this serves the child’s best interest in most cases. In some cases this discrepancy in state law leads to impermissible forum shopping.
To say that one type of forum shopping is impermissible, is to assume that there is, in fact, some permissible forum shopping. In short, permissible forum shopping occurs when a person voluntarily chooses to live under a particular state’s authority, because of their favorable legal structure. For example, a cancer patient may move to Colorado to use cannabis. Most jurisprudents would call this permissible forum shopping.
Impermissible forum shopping in relation to adoption and child custody is the problem address by the Parental Kidnapping Prevention Act and the Uniform Child Jurisdiction and Enforcement Act. Every state in the Union is governed by the Parental Kidnapping Prevention Act (PKPA) and almost every state has enacted some form of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA or UCCJA).
For example, Utah is a state that has recently been at the center of “alleged” impermissible forum shopping. Utah has earned a reputation of being a state to which birth mother’s move, in order to place their children for adoption – and circumvent a biological father’s rights. On April 3, 2014, Fox News picked up the story of Utah lawmakers pushing back against this phenomenon.(EN.1)
Utah Gov. Gary Herbert signed into law a bill that he hoped would “send a strong message that Utah respects fathers’ and will not allow its laws to be used to perpetuate fraudulent adoptions.” Part of the fix that the new law proposes is to require a 90-day residency requirement for potential birth mothers who move to Utah to place their children for adoption.
Utah just happens to be the most spotlighted state with these problems. The truth is, whenever State “A” has more favorable adoption laws that State “B,” there will be adoption agencies that recruit birth mothers to State “A” and adoptive families that avail themselves of the legal benefits of State “A.” Like Utah, Alabama just so happens to be one of those State “A”s.
The UCCJEA and the PKPA are designed to offer some level of protection to biological parents in these contexts. In fact the UCCJEA’s stated goals are the selection of an appropriate forum, the avoidance of interstate competition and conflict, and the deterrence of independent removal of children by one parent or guardian.(EN.2) Similarly, the PKPA imposes on states a federal duty to give full faith and credit to the custody decrees of other states.(EN.3) How would these laws affect the adoption of a child from parents who just moved to Alabama, especially when there may be a pending custody-related action in the state from which the adoptive parents relocated?
Issue #1: Whether there is a residency requirement in Alabama before an adoption proceeding can commence.
There is likely no residency requirement in Alabama before an adoption proceeding can commence. According to the Alabama Adoption Code §26-10A-1, et seq., there are no residency requirements.
However, it is imperative to determine if there has ever been or is continuing to be a custody proceeding in another state. If a custody proceeding has previously begun in another state, the state may have continuing jurisdiction of the child, thus potentially invoking the Uniform Child Custody Jurisdiction Act (UCCJA) or Parental Kidnapping Prevention Act (PKPA).(EN.4)
Issue #2: Whether the UCCJA or PKPA applies to an adoption proceeding when a parent(s) or legal custodian leaves the “home state” and moves to another state.
Whether the UCCJA or PKPA will apply to an adoption proceeding is going to be determined on a case by case analysis. As a basic understanding of the acts, § 13 of the Uniform Child Custody Jurisdiction Act (UCCJA) and 28 U.S.C.A. §1738A(a) of the Parental Kidnapping Prevention Act (PKPA), states are required to recognize and enforce, according to their terms and without modification, custody decrees made by courts located in other states.
The Uniform Child Custody Jurisdiction Act was promulgated in an effort to encourage courts considering child custody matters to make a fully informed judgment of the custody issue when state lines have been exceeded in the matter by considering all claimants, residents and nonresidents, on an equal basis and from the standpoint of the best interest of the child.(EN.5) By proposing certain criteria for initial jurisdiction, grounds for declining to exercise such jurisdiction, and criteria for enforcement and modification of custody decrees, the UCCJA seeks to accomplish three goals: the selection of an appropriate forum, the avoidance of interstate competition and conflict, and the deterrence of independent removal of children by one parent or guardian.(En.6)
Section 13 of the Uniform Child Custody Jurisdiction Act provides that a state’s court shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions in accordance with the UCCJA, or which was made under factual circumstances meeting the jurisdictional standards of the UCCJA, so long as the decree has not been modified in accordance with jurisdictional standards substantially similar to those of the UCCJA. The UCCJA Commissioners’ Note states that § 13 of the UCCJA is a key provision which helps guarantee a great measure of security and stability of environment to the “interstate child” by discouraging multiple litigation procedures in other states.
In an attempt to eliminate some of the legal and pragmatic difficulties arising from interstate child kidnapping, and to address the decree recognition problems existing under the UCCJA, Congress passed the Parental Kidnapping Prevention Act on December 28, 1980.(EN.7) The jurisdictional provisions of the PKPA are codified at 28 U.S.C.A. § 1738A. The PKPA imposes on states a federal duty, under enumerated standards derived from the UCCJA, to give full faith and credit to the custody decrees of other states, and provides what amounts to a federal adoption of key provisions of the UCCJA for all the states.(EN.8)
As to initial jurisdiction, the federal standards implement some of the same policy judgments underlying the UCCJA, but there are also significant differences because the PKPA was drafted, in part, to fill the gaps which existed under the UCCJA.(EN.9) The key distinction is that the UCCJA could result in parallel jurisdiction if more than one state meets one of the conditions set forth in § 3(a), while 28 U.S.C.A. § 1738A(c)(2)(B)(i) (d) effectively eliminate the possibility of concurrent jurisdiction.(EN.10) There are also a number of differences between the PKPA and the UCCJA with respect to modification jurisdiction.(EN.11)
Basically, the PKPA does not widely regulate custody jurisdiction, but only provides guides to the exercise of jurisdiction. In assessing the relationship between the two statutes, it should be understood that the PKPA offers jurisdictional standards which, if violated, deprive a decree of the right to be accorded full faith and credit by another state.(EN.12) In essence, the PKPA does not “confer” jurisdiction, it compels conformity with its standards.(EN.13)
The only two provisions of the PKPA directly limiting the authority of state courts to make initial child custody awards are 28 U.S.C.A. § 1738A(e), which requires that contestants be given notice and an opportunity to be heard before a custody determination is made, and 28 U.S.C.A. § 1738A(g), which forbids a state court from exercising custody jurisdiction during the pendency of a custody proceeding in another state.(EN.14)
The PKPA gives a distinct priority to a child’s “home state,” by encouraging another state with other grounds for jurisdiction to comply with the home state of the child, unless the other state has continuing jurisdiction. Conflicting decrees as a result of the concurrent exercise of jurisdiction by two states are resolved by enforcing only the decree of the home state.(EN.15) The PKPA may have an indirect impact of encouraging a court to decline jurisdiction which it has under the UCCJA, because any resulting decree would not be entitled to federally mandated enforcement under the PKPA.(EN.16) The continuing jurisdictional provision of the PKPA, 28 U.S.C.A. § 1738A(d), safeguards exclusive modification jurisdiction in the original home state as long as the child or one of the contestants remains in that state.
Various types of decrees, orders, and proceedings have been held to be subject to § 13 of the UCCJA and § 1738A(a) of the PKPA. Courts have applied one or both of the provisions to intrastate child custody decrees, temporary custody orders, child neglect and dependency proceedings and decrees child visitation orders, orders granting legal guardianship of a child, custody orders issued in connection with adoption proceedings, temporary restraining orders that impair rights granted under prior custody orders and decrees, writs of habeas corpus that affect rights granted under custody orders and decrees, orders in connection with proceedings to terminate parental rights, and orders made or raised in connection with proceedings to establish parentage.(EN.17)
Interestingly, Alabama state law of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) specifies that “This chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.”(EN.18) Such legal nuances may be what makes Alabama an attractive state for would be adoptive parents.
However, it is clear that before continuing with the child’s adoption the issue of the child’s custody must be resolved. Unquestionably, the Alabama Adoption Code § 26-10A-21 Ala. Code provides:
“If, at any time during the pendency of the adoption proceeding, it is determined that any other custody action concerning the adoptee is pending in the courts of this state or any other state or country, any party to the adoption proceeding, or the court on its own motion, may move to stay such adoption proceeding until a determination has been made by an appropriate court with jurisdiction pursuant to the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA). The adoption may be transferred and consolidated with a custody proceeding pending in any court in this state.”
In analyzing the determination of a child’s home state through Alabama state law, the UCCJEA defines a child’s “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.”(EN.19)
Specifically, Alabama law recognizes that when custody proceedings are pending in another state at the time a custody action is brought in Alabama, such proceedings in a sister state will bar the exercise of jurisdiction in Alabama.(EN.20) Further, a custody order entered with proper personal jurisdiction in another state will be entitled to “full faith and credit” in Alabama.(EN.21)
Issue #3: Whether a paternity action qualifies as a custody action to invoke either the UCCJA or PKPA.
An unwed biological father, who wants to assert his rights to be involved in the life of the child, may begin is advocacy with a paternity action in his state of residency. If the biological mother has moved to another state for the purpose of adoption, and failed to notify the biological father, filing a paternity action is a completely reasonable legal option for the biological father.
However, under Alabama law, the biological father’s initiation of a paternity action in another state will most likely not afford that father the protection offered through the UCCJEA and PKPA in Alabama courts. Unfortunately, things aren’t that cut-and-dry: a paternity action likely triggers a custody action as the next additional step that must be met.
The AL Supreme Court case Ex parte C.V. discusses a situation where a father filed a “paternity and custody action” against the birth mother. The prospective adoptive parents were
aware that the father had not consented to the adoption and that as a result, the child was “at risk.”(EN.22) Here, the prospective adoptive parents filed an action to terminate his parental rights, and relied on the argument that the father had abandoned the child, thus implying his consent.(EN.23) Throughout this case, when referencing the paternity action the father filed, the Court uses the phrase “paternity and custody action” numerous times as if to be construed that by establishing his paternity, the father is asserting his right to custody over the child. Ex parte C.V. held that the father’s parental rights could not be terminated due to lack of evidence proving abandonment, and remanded the case to the circuit court to determine the proper custody of the child.(EN.24) Thus, the father’s “paternity and custody action” sufficiently established that the Court, having established the father’s paternity to the child, had also established that the father had a right to pursue custody of the child.
Also discussed in the Ex parte C.V. case is the parental presumption; “[t]he law devolves the custody of infant children upon their parents, not so much upon the ground of natural right in the latter, as because the interests of the children, and the good of the public, will, as a general rule, be thereby promoted.”(EN.25) This case further cites Ex parte Mathews, which held that “[t]he prima facie right of a natural parent to the custody of his … child, as against the right of custody in a nonparent, is grounded in the common law concept that this primary parental right … is in the best interest … of the child as a matter of law.”(EN.26)
Additionally, in Ex parte F.P. the father brought a paternity action to contest an adoption proceeding and seek custody of the child.(EN.27) The prospective adoptive parents in this case also relied on the concept of abandonment. The Court agreed with Judge Yates’ dissent from the lower court, which cited the Ex parte C.V. case; “Abandonment, as defined by the Child Protection Act, is “a voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his presence, care, love, protection, maintenance or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.”(EN.28) The Court held that by the father promptly filing with the Putative Father Registry, and then pursuing an action to establish paternity, the father’s consent to an adoption could not be implied, thereby reversing the decision of the lower court and remanding the case to continue with custody proceedings.(EN.29)
In both of these AL Supreme Court cases, each paternity action did not qualify as a custody action (as they were both remanded for that purpose). But, pursuant to the paternity action, the custody action was a direct result and the next necessary step.
In summary, while the specific UCCJEA in Alabama or the federal PKPA may not be directly invoked in an adoption proceeding, both statues are in effect to place safeguards to children and their rights to be protected. Both statutes provide for jurisdictional requirements to be met in custody proceedings before an adoption action can take place regarding the child when another state may have continuing jurisdiction over the child due to a custody proceeding in the child’s home state.
Alabama will most likely continue to remain safely on the “A” list of states that are friendly to adoptive families. Unfortunately, case law is thin on the relation of the UCCJEA, PKPA, and intentional forum shopping of adoptive parents. Alabama does not appear to be as extreme as Utah in promoting adoptive families rights; which probably why is will remain safely on the “A” list.
Sam McLure is the Founder of The Adoption Law Firm.
Sam and his wife Mary Beth were inspired to establish The Adoption Law Firm during the process of adopting their first son, Robi (read more about their experience on the blog, Go Get Robi).
Sam and Mary Beth were exposed to the great need for loving families to adopt abandoned children at home and around the world. They began to dream of a law center that could zealously advocate for children to be placed in loving homes. Eventually, that dream became a reality.
The Adoption Law Firm exists to zealously advocate for orphaned children to be adopted into loving homes.
Gift of Adoption Fund: Providing Opportunities For Adoption