MASANI COX, Plaintiff,
JOSEPH PASLOV, Defendant.
Court of American Samoa
The Parental Kidnapping Prevention Act, 28 U.S.C.A. § 1738A, was intended to preempt
state and territorial law regarding the modification of child custody orders.
Parental Kidnapping Prevention Act requires that child a custody decree be
given full faith and credit if the decree was made in a manner consistent with
provisions of act.
The Parental Kidnapping Prevention Act provides a two-part jurisdictional test
in order to modify another state’s decree: (1) did rendering state lose or
refuse jurisdiction, and (2) does modifying state now have jurisdiction.
Under the Parental Kidnapping Prevention Act, a rendering court may retain
jurisdiction in one of two ways: (1) by having continuing jurisdiction, or (2)
by having pending jurisdiction over the case.
The jurisdiction of a rendering court is exclusive as long as it satisfies two
requirements: 1) the residence of the child or of any contestant remains in the
rendering state; and 2) the rendering state has jurisdiction under its own
During the period of “continuing jurisdiction,” other states or territories
must enforce and cannot modify the initial custody determination.
The Parental Kidnapping Prevention Act provides that a state court has
exclusive jurisdiction when matter before it is pending.
A matter is “pending” for purposes of the Parental Kidnapping Prevention Act at
any point before the final custody order is made and the time for appeal has
Although enforcement action in Montana against petitioner for alleged
visitation violation was pending, Montana court had previously resolved
question of custody and, therefore, custody determination was no longer pending
within meaning of Parental Kidnapping Prevention Act.
The High Court of American Samoa exercises jurisdiction and modifies foreign
custody decrees when the child in question is present in the territory.
The Parental Kidnapping Prevention Act provides for four bases of jurisdiction:
1) home state jurisdiction, 2) significant connection jurisdiction, 3) emergency
jurisdiction, and 4) default jurisdiction.
The Court need not consider each of the four jurisdictional bases set forth in
the Parental Kidnapping Prevention Act, and may premise its jurisdictional
determination upon just one.
Court considered evidence sufficient to establish emergency jurisdiction where
respondent/father had history of drug abuse, propensity for violence, a recent
pattern of hostility towards petitioner/mother, and demonstrated an inability
to cope with petitioner’s plan to remarry.
Circumstances to consider in custody situations are that (a) children of tender
years should remain together and custody given to mother; (b) mother is natural
custodian of her young; and (c) there is no satisfactory substitute for
mother’s love. Other things considered
are good home, congenial surroundings, and intelligent attention and direction
in matters affecting health, education, growth and development of children.
 Court concluded it
would be in minor’s best interest that sole and exclusive custody be
reestablished with petitioner where petitioner had been historically
responsible for minor’s upbringing and day-to-day needs, had provided the child
a stable and nurturing environment, had successfully reared the minor’s two older
siblings, had maintained gainful employment and had evidenced more of a
commitment to her parental obligations that the respondent/father.
KRUSE, Chief Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate
For Plaintiff, David M. Wagner
For Defendant, Marie
petitioner mother Kathleen Cox (“Petitioner” or “the mother”) requests that we
modify a Montana state custody decree (“Montana decree”) and designate her exclusive
custodian of the six-year-old minor child (“Minor” or “the child”) of
Petitioner and respondent father Eugene Joseph Paslov (“Respondent” or “the
father”), who are not now married. The Montana decree modified an earlier
Oregon state court parenting plan by granting custody of Minor, previously with
Petitioner, to Respondent. On November
22, 2000, Petitioner filed this motion to modify and, on December 21, 2000,
served it upon Respondent. Trial
commenced on April 5, 2001, with both parties present and represented by
counsel. Both parties subsequently filed
written closing arguments. Threshold to
deciding the merits of Petitioner’s request is the issue of whether we have
jurisdiction to alter another state court’s custody decree. Upon careful consideration
of the facts and law in this matter, we conclude that we may, and do, assert
jurisdiction to modify the Montana decree, and therefore, amend that decree as
set out in further detail below.
and Respondent wed in 1991. Petitioner’s
two older children from a previous marriage, Diedre (“Diedre”) and Warren
Esteron (“Warren”), lived with the couple.
Minor was born to the marriage on November 8, 1994. Since birth, the mother has been Minor’s
primary caretaker; since the parties’ separation in 1996, she has been Minor’s
resident parent. Since separation,
Respondent has had very little involvement in the Minor’s day-to-day
its inception, the marriage was plagued with domestic troubles. Significantly, the Respondent abused drugs
and exhibited aggressive tendencies towards the Petitioner and her
children. Respondent admitted to using
drugs “recreationally” early in the marriage but claims that he discontinued
drug use in 1993 or 1994. According to
Petitioner, Respondent regularly used drugs such as “crank,” a form of speed,
and cocaine at home. She was introduced
to these substances by Respondent in the first two weeks of the marriage, and
herself tried drugs with Respondent. She
asserts that she has never used them since.
Respondent was not very discreet about his drug use in the marital
home. Warren testified that at the age
of 11 or 12, he discovered what he now believes to be drugs in Respondent’s
bedroom drawer. Specifically, he found a
plate with cocaine-like powder and cut-up straws. At another time, Warren saw drug
paraphernalia in the home, and found three packets of the same cocaine-like
substance in Respondent’s bathroom drawer.
Petitioner was gone on overnight work, Respondent was Minor’s caretaker. Petitioner, who works as a flight attendant,
frequently traveled interstate, which sometimes required her to “lay-over,” or
rest, in a neighboring state. On some of
these occasions, Diedre and Warren would awaken at night from Minor’s cries,
only to find him alone in the room he shared with Respondent. Respondent apparently disappeared frequently
at night, leaving Minor unattended.
their marriage, Respondent demonstrated an unpredictably violent
temperament. For example, on one occasion,
when Minor was a baby and was crying, Respondent, in frustration, hovered over
him in his crib, shook the bed, and yelled at him to “shut up.” Warren attempted to help, but Respondent
refused, and shut him out of the room.
Minor continued to wail.
other incidents, Respondent demonstrated physical hostility. During an intense argument when Petitioner
was nine months pregnant with Minor, Respondent shoved Warren, aged 13 at the
time, into a wall and grabbed him by the neck for attempting to intervene. On at least two other occasions, police
responded to complaints of domestic abuse.
Once in 1993, and again in 1995, police arrested and jailed Respondent
for assaulting Petitioner. In the 1995
incident, Respondent broke Petitioner’s wrist.
thereafter, Petitioner and Respondent separated legally and
geographically. In 1996, Petitioner
relocated to Washington with her two children and Minor. At some point after Petitioner moved,
Respondent transferred to Carson City, Nevada.
living in Washington, Petitioner was able to provide for her children by
continuing her work as a flight attendant.
When required to work overnight, Petitioner left Minor with Diedre and
Warren, who were then in their mid-teens.
She would ensure that an adult friend supervised the children. Although apart, Petitioner continued to send
Minor to visit Respondent without incident.
Petitioner provided Minor with air transportation through her employee
flight benefits, and sent him to Nevada with one of her older children as an
February 12, 1999, an Oregon state court simultaneously granted Petitioner and
Respondent an uncontested divorce, provided Petitioner sole legal and physical
custody of Minor, and adopted the parties’ agreed-upon visitation schedule (“Oregon
parenting plan”). (Ex. 7, In re the
Marriage of Paslov v. Paslov, No. C96-1936 DR, slip op. at 2-3 (Or. Cir.
Ct. Feb. 12, 1999).) Specifically, the
Oregon parenting plan provided Respondent with supervised visitation at least
one weekend a month, one month during the summer, and alternating
holidays. Further, the plan specifically
outlined the method for implementing Respondent’s visits. Visits were to take place at Minor’s paternal
grandparent’s home in Carson City, Nevada, to which Minor had to travel by air,
chaperoned by Petitioner or one of her two older children. Respondent was responsible for the cost of
air transportation, and suffered to lose his parenting time if he failed to pay
for Minor’s airfare. Finally, if
Respondent wished to visit with his son in the summer, he was required to
notify Petitioner of his intended summer schedule no later than May 1st of each
the issuance of the Oregon parenting plan, Respondent visited sporadically with
Minor. In April 1999, Respondent visited
with Minor for about nine to ten days.
Then, in September 1999, Petitioner sent Minor, escorted by one of her
older children, to Reno, Nevada, where Respondent then lived with his parents. Minor spent three weeks there. During the holiday season, from December to
January, Minor again spent three weeks with Respondent.
1999, Petitioner decided to relocate from Washington to Butte, Montana, to live
with her fiancé, Don McGee (“McGee”), whom she planned to wed in July
2000. It appears that at least by late
December 1999, Petitioner finalized her move to Montana (Petitioner maintained
a lease on a Seattle, Washington apartment until December 31, 1999.). The father, aware of the mother’s plans to
relocate, but ignorant of her proposed marriage, did not initially object. However, soon after Minor’s Christmas-New
Year sojourn in Nevada, at which time Minor revealed the mother’s nuptial
plans, the father became obsessively concerned with the possibility of another
father figure in his son’s life, and very resentful, if not outright jealous,
over Petitioner’s proposed remarriage.
unpersuasively claims that he objected to Minor’s transfer to Montana, having
lost all contact with Minor upon Minor’s mid-January return. In fact, before telephone service had even
reached their new home, Petitioner had given Respondent Minor’s Montana
address. On the pretext of searching for
Minor, but for the apparent purpose of harassing Petitioner, Respondent
retained a Montana attorney and private investigator. On March 14, 2000, while McGee and Minor were
having breakfast at the War Bonnet Inn in Butte, Montana, they were approached
by Respondent, Respondent’s mother, and a private investigator. McGee testified that with Minor nearby,
Respondent glared at him and told him to leave Petitioner because “she’s an
evil bitch.” McGee reluctantly allowed
Minor to visit with Respondent for 24 hours. Through Respondent’s counsel and
investigator, the parties attempted a later mediation with Respondent’s mother,
counsel, and investigator, with McGee present.
The meeting resulted in Petitioner’s assistance in providing Minor with
specific telephone access to contact Respondent. However, for no clear reason, the parties’
effort at resolution failed, and communication between the parties deteriorated
April 3, 2000, Respondent petitioned a Montana court to recognize and register
the Oregon parenting plan, and modify the same.
In particular, Respondent asked that Petitioner remain Minor’s sole
custodian, but that the court modify the Oregon parenting plan to provide for
1) increased visitation; 2) reinstatement of Minor’s travel benefits; 3)
specific telephone and e-mail access; 4) process for affecting Minor’s
residential changes; and 5) other general parental duties. On May 18, 2000, Petitioner acquiesced to the
Montana court’s jurisdiction, but objected to any modification of the Oregon
parenting plan. On May 22, 2000, Judge Ted
L. Mizner of the Montana Third Judicial District Court of Powell County (“Judge
Mizner”) registered and asserted jurisdiction over Oregon’s plan.
continued to be in contact with Minor.
He kept Minor for a weekend in May, and began negotiating with
Petitioner for his summer parent-child contact.
Because Petitioner and McGee scheduled to wed on June 24, 2001, the
parties agreed to schedule Respondent’s summer visit with Minor to June 26,
2001. According to Petitioner, the
parties had agreed to exchange Minor at the Tacoma International Airport in
Seattle, Washington. However, on June
22, 2000, four days before the scheduled visit in Seattle, Respondent somehow
managed to track down Petitioner while she shopped for things for her wedding
at a Wal-Mart in Butte, Montana. He
accosted Petitioner and made a public spectacle of himself. Accusing Petitioner of concealing Minor, he
ranted and raved in the store, quite oblivious to the attention he was
attracting, calling Petitioner, among other things, an “evil adulteress
cunt.” He further told her that he was
going to ruin her wedding, stalk her for the remainder of her life, harm her
and her children, and make the rest of her years miserable.
incredibly, claims that despite the bizarre altercation, Petitioner promised
him a visit with his son at the Ramada Inn Hotel in Butte, Montana, at 12:00
p.m. on June 26. The facts show that
Petitioner instead immediately petitioned Justice of the Peace Mel Mooney of
SilverBow County (“Judge Mooney”) for a temporary order restraining Respondent
from contact with Petitioner and certain family members, including Minor. On June 26, 2000, Respondent was served with
the restraining order. Respondent’s
counsel immediately contacted Judge Mooney and explained that an ongoing
custody proceeding was pending before Judge Mizner in another county. Judge Mooney rescinded the order as to Minor,
explaining that it had not been his intent to supersede the current custody
order, and ordered that the parties follow the then governing custody order.
aware of the order’s rescission, and fearing for her and her children’s safety,
Petitioner cancelled her wedding, and left Montana without informing Respondent
of her or Minor’s whereabouts. She
thereafter moved to American Samoa. She
and her children arrived in American Samoa on July 8, 2000.
court proceedings concerning Petitioner and Minor continued in Montana. On August 1, 2000, Respondent, still
uninformed as to Minor’s whereabouts, amended his motion to modify the Oregon
parenting plan requesting sole custody of Minor, and Petitioner’s supervised
parent-child contact, and psychological evaluation.
August 2, 2000, Justice of the Peace Kevin A. Hart of Anaconda-Deer Lodge
County issued a criminal warrant for Petitioner’s arrest on the charge of
parenting interference. (Ex. 7., State
of Montana v. Cox, No. 00-21331 (Mont. J.P. Ct. Aug. 2, 2000) (warrant of
arrest).) The basis for the charge was
Petitioner’s thwarting of Respondent’s summer visitation rights. Id.
Then, on September 11, 2000, after an ex parte evidentiary
hearing, at which Petitioner was not in attendance, her knowledge of the
hearing doubtful given her absence, and based solely on Respondent’s distorted
version of the facts, Judge Mizner granted
Respondent sole custody of Minor. Paslov
v. Cox, No. DR00-28 (Mont. Dist. Ct. Sept. 11, 2000). Judge Mizner prohibited Petitioner from
parent-child contact with Minor “until such time as she submits to, and
completes, a full psychological evaluation, to be administered by a licensed
therapist.” Id. at 2. Judge Mizner awarded Respondent reasonable
attorney fees and costs and terminated Respondent’s child support obligations
as of the date of the order. Id.
moving to American Samoa, Petitioner has been seeing a therapist. As stated
earlier, on November 22, 2000, she filed this action to modify Montana’s decree
which gave Respondent sole custody of Minor.
Then, on December 21, 2000, Respondent was served. In February 2001, Respondent arrived in
American Samoa and solicited at least three supervised visits with Minor.
no one lives in Montana. Petitioner, who
was born and raised in American Samoa, testified that she had always intended
to return to American Samoa and make it her permanent home. Although Respondent provoked her early
return, she intends to continue to reside in American Samoa. Petitioner, Diedre, and Minor live with Petitioner’s
mother, a native Samoan, in Pavai`ai, American Samoa. Petitioner placed Minor in school. In February 2001, officials from Child
Protective Services performed a home study of Minor’s American Samoa home and
approved it for purposes of his care.
now resides in Reno, Nevada. While his
ability to maintain employment has been unsteady, he is currently employed as a
waiter at an Olive Garden Restaurant and claims to work part-time helping out
his father’s business.
For the first time, this Court is asked to modify another state’s custody
decree in accordance with the Parental Kidnapping Prevention Act, 28 U.S.C.A. §
1738A (“PKPA”). In an effort to provide a uniform federal
standard for dealing with national controversies over child custody
jurisdiction, Congress enacted the PKPA in 1980. The PKPA was clearly intended to preempt
state and territorial law regarding the modification of child custody orders.
is necessary . . . to establish national
standards under which the courts of such jurisdictions [the states] will
determine their jurisdiction to decide such [custody] disputes and the effect
to be given by each such jurisdiction to such decisions by the courts of other
Id. See also Voninski v. Voninski, 661
S.W.2d 872, 876 (Tenn. Ct. App. 1982) (under the Supremacy Clause of the United
States Constitution, the PKPA entirely preempts state child custody law); Curtis v. Curtis, 789 P.2d 717, 721
(Utah Ct. App. 1990); Archambault v. Archambault, 555 N.E.2d 201, 206
The PKPA requires that we give the Montana decree full faith and credit if it
was made consistently with the provisions of the statute. 28 U.S.C.A. § 1738A(a). We need not reexamine Montana’s jurisdiction
over the Oregon plan. The parties were
both before the Montana Court and assented to Montana’s jurisdiction when the
court considered the question and determined its exercise of jurisdiction
appropriate. See Jordan v. Jordan,
586 A.2d 1080, 1083 (R.I. 1991) (refusing to revisit jurisdiction determination
because the preliminary question was litigated in an adversarial
proceeding). We extend full faith and
credit to the Montana decree; the next issue is then, whether the PKPA permits
our modification of the decree.
To modify another state’s decree, the PKPA provides a two-part test, which we
apply as follows: 1) did the rendering state lose or refuse jurisdiction; and
2) does the modifying state now have jurisdiction. 28 U.S.C.A. §§ 1738A(f)(1), 1738A(f)(2).
There are two ways that a rendering court may retain jurisdiction. First, under subsection (d) of the PKPA, if
certain requirements are met, the initial court may have “continuing
jurisdiction.” Second, under subsection
(g) of the PKPA, if the matter before the initial court is not yet final, it
may have “pending jurisdiction” over the case.
For a period after a state issues an initial decree, that state continues to
have jurisdiction so long as certain PKPA requirements are satisfied. According to this test, the jurisdiction of a
rendering state is exclusive as long as it satisfies two requirements: 1) the
residence of the child or of any contestant remains in the rendering state; and
2) the rendering state has jurisdiction under its own laws. During this period of what is often termed
“continuing jurisdiction,” other states or territories must enforce and cannot
modify the initial custody determination.
of the participants live in Montana.
Petitioner and Minor relocated to American Samoa on July 8, 2000, with
the intent to remain and make American Samoa their home. Respondent currently resides in Nevada. See, e.g., Dahlen v. Dahlen,
393 N.W.2d 765, 768 (N.D. 1986) (no continuing jurisdiction under PKPA to modify
custody decree where no participants to custody dispute continued to reside in
The PKPA further provides that a state court has exclusive jurisdiction if the
matter before it is pending. 28 U.S.C.A.
§ 1738A(g). This condition is designed generally to apply
to situations in which no custody determination has yet been made on a matter
before another state court. See In re
Brandon, 551 N.E.2d 506, 509 (Mass. 1990).
More specifically, a matter is “pend[ing]” for purposes of the PKPA at
any point before the final custody order is made and the time for appeal
this case, Montana has made a final custody determination. On September 11, 2000, Montana transferred
Minor’s custody to Respondent, the nonresident parent. Furthermore, the period to appeal that
decision has expired.
Respondent further argues that Montana’s jurisdiction is “pending” because an
enforcement action against Petitioner is proceeding in Montana. A similar fact situation presented itself in In
re Brandon. There the court
distinguished a “pending” custody determination from a contempt proceeding,
which had been spurred by an alleged violation of one parent’s visitation
rights. Although an enforcement action
was outstanding in another court, the Brandon court held that that court
had resolved the question of custody, and therefore, the matter was no longer
in the present case, the current Montana arrest warrant and criminal proceeding
against Petitioner for an alleged visitation violation is distinct and separate
from Montana’s custody determination and, therefore, is no longer “pending”
within the meaning the PKPA. With
neither “continuing” nor “pending” jurisdiction, Montana lost
jurisdiction. We next determine whether
we may exercise jurisdiction.
The second prong of the PKPA modification test requires that the modifying
territory have jurisdiction as defined by its own laws. American Samoa lacks statutory authority in
the form of a UCCJA. However, this court
exercises jurisdiction and modifies foreign custody decrees where the child in
question is present in the territory. See, e.g., In the Matter of Minor Child,
28 A.S.R.2d 31 (Trial Div. 1995). See
also Restatement (Second) of Conflict
of Laws § 79(b) (1971).
hold that we may exercise jurisdiction over Minor’s custody because Minor is
present in the territory, and, in fact, has been present in American Samoa for
the past year. Nonetheless, because we
have yet to enact our own version of the UCCJA, we turn again to the PKPA to
ensure that our exercise of jurisdiction is consistent with its terms. See Green v. Bruenning, 690 S.W.2d
770, 771 (Ky. 1985) (adopting PKPA to determine state jurisdiction where state
had not adopted the UCCJA).
The PKPA provides four jurisdictional bases including: 1) home state
jurisdiction; 2) significant connection jurisdiction; 3) emergency
jurisdiction; and 4) default jurisdiction.
28 U.S.C.A. §§ 1738A(c)(2)(A)-(D).
We need not consider each basis, and may premise our jurisdictional
determination upon just one. See
Evans v. Evans, 668 F. Supp. 639, 641 (M.D. Tenn. 1987) (court must meet at
least one of the jurisdictional touchstones of PKPA to modify another state’s
custody determination). Under the third
enumerated condition, we have jurisdiction if:
child is physically present in such State and . . . it is necessary in an
emergency to protect the child because [he] has been subjected to or threatened
with mistreatment or abuse[.]
U.S.C.A. § 1738A(c)(2)(C).
The circumstances in this case clearly create an emergency substantial enough
to confer upon this court jurisdiction to protect Minor from Respondent. This Court, unlike the Montana Court, had the
benefit of an inter partes adversarial trial. The evidence before us clearly shows that
Respondent has a history of drug abuse and a demonstrated propensity for
violence. Furthermore, Respondent’s
recent pattern of hostility towards Petitioner because of her proposed marriage
culminating in the incident at the Montana Wal Mart, makes evident Respondent’s
current instability and inability to cope with certain realities, namely
Petitioner’s plan to remarry. We are not
satisfied that Minor will not be subjected to these harms while in Respondent’s
primary care and, therefore, exercise jurisdiction to protect the child’s best
Noting jurisdiction, and taking into consideration all of the factors in this
case, we modify the Montana decree to provide Petitioner sole and exclusive
custody of Minor. We have previously
expressed the circumstances to consider in custody situations as follows:
things being equal, children of tender years should remain together and their
custody given to the mother. The mother
is the natural custodian of her young.
There is no satisfactory substitute for her love. Other things being weighed and considered are
a good home, congenial surroundings, and intelligent attention and direction in
matters affecting the health, education, growth and development of the
v. Stevens, 21 A.S.R.2d 76, 78-79 (Trial Div.
1992) (citations omitted). Historically,
Petitioner has been primarily responsible for Minor’s upbringing and day-to-day
needs. The evidence shows that the
mother has continued to provide Minor with a stable and nurturing
environment. While managing single
parenthood, the mother has maintained gainful employment; the father has
not. In addition, the mother has a
proven record of accomplishment with raising children, having successfully
reared Minor’s two older siblings.
Perhaps as significant a factor is Minor’s continued interaction with
his two older siblings, who have both actively participated in Minor’s
upbringing and care. Currently, Diedre
and the child reside with the mother.
While we do not doubt a father’s love for his son, this father’s
commitment towards his parental obligations is far outweighed by the mother’s
in this case. When married, the father
left the child unattended at night in the mother’s absence, openly abused
drugs, and demonstrated an uncontrollable temperament. Since the separation and divorce, he has
inconsistently invoked his visitation rights, and has had to rely on his
ex-wife for assistance. Furthermore, we
have not had the benefit of any evidence as to the father’s ability to provide
for the child’s day-to-day care such as a stable home environment and
educational needs. From what can be
gleaned from the father’s circumstances, he appears seriously dependent on his
own parents to provide for the child’s needs, especially since all of
Respondent’s visits with Minor have taken place at the paternal grandparent’s
home. Moreover, the record before us is
scant as to the paternal grandparents’ circumstances in terms of their ability
and willingness to furnish day-to-day assistance beyond intermittent visits as
in the past. The Court is not convinced
of the father’s suitability for sole custody given his background with drug
abuse coupled with his aggressive nature.
At the same time, we are troubled with the very clear impression that
Respondent’s motivation and primary purpose in this whole sorry affair has not
so much been the best interests and welfare of the Minor, but rather the
detriment of his mother. We conclude, therefore, that it would be in Minor’s
best interest that custody be reestablished with the Petitioner.
Sole and exclusive custody of Minor is granted to Petitioner.
Temporary physical custody of Minor is granted to Minor’s maternal grandmother
until the conclusion of Montana criminal proceedings regarding the charge
against Petitioner of alleged parental interference.
Reasonable visitation, supervised by a Department of Human and Social Services
Child Protective Services officer or representative, is granted to Respondent.
is so ordered.
Respondent also requested amendment to child support obligations, not at
issue in this case.
Respondent accuses Petitioner of thwarting his visitation
opportunities. However, it is quite
clear from the evidence that Respondent’s missed visits with Minor were due to
his own failure to schedule or pay for Minor’s transportation as mandated by
the Oregon parenting plan. In fact, on
occasions, Petitioner facilitated, rather than inhibited visits by providing
air transportation for Minor through her employment benefits. And when she did not, she received haranguing
email from Respondent’s mother bemoaning Respondent’s failure to provide for
Minor’s transportation costs, citing Respondent’s unemployment.
At a hearing held post-trial but before the issuance of this decision,
on June 25, 2001, concerning the same matter, Petitioner’s counsel advised the
court that Petitioner is currently in Montana to face the charge of alleged
parental interference. In the meantime,
Minor continues in the care and custody of his maternal grandmother and Deidre.
Petitioner also asks that we modify the Montana custody decree in
accordance with the Uniform Child Custody Jurisdiction Act of 1968
(“UCCJA”). However, while the majority
of states and territories have enacted the UCCJA, or its equivalent, American
Samoa has not.
The PKPA applies to American Samoa where the act defines “state” as
including “a territory or possession of the United States.” 28 U.S.C.A. § 1738A(b)(8).
The PKPA provides in pertinent part:
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 subsection[ ] (f) . . . of this section, any [child]
custody determination . . . made consistently with the provisions of this
section by a court of another State.
* * *
(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.
28 U.S.C.A. §
PKPA subsection (d) states:
The jurisdiction of a court of a
State which has made a child custody . . . 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.
28 U.S.C.A. §
1738A(d). PKPA subsection (c)(1) states,
in pertinent part:
A child custody . . .
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.
28 U.S.C.A. § 1738A(c)(1).
PKPA subsection (g) states:
A court of a State shall not
exercise jurisdiction in any proceeding for a custody . . . 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 determination.
28 U.S.C.A. § 1738A(g).
Montana Rules of Appellate Procedure Rule 5(a)(1) allows parties 30 days
to appeal a custody determination.
The Restatement states in relevant part: “A state has power to exercise judicial
jurisdiction to determine the custody . . . of a child . . . who is present in
the state.” Restatement (Second) of
Conflict of Laws §