concurring:
My colleagues hold that the California courts have jurisdiction, and the District of Columbia courts do not, because Ms. Rogers won the race to the courthouse door by one day. I agree that the PKPA so provides, but I believe that we should decide the issue on broader and less fortuitous grounds than that.
In interstate custody litigation, the determination of which court decides is often of paramount importance. In the present case, for example, Ms. Rogers lives in California and the Platts are residents of the District of Columbia. When the dispute broke out, at least one side was certain to be required to engage in protracted litigation three thousand miles from home.1 Where a party cannot afford to do this— and it appears that Ms. Rogers would not be able to afford litigation in the District *1042but for the willingness of counsel apparently to represent her pro bono,2 an opportunity not available to many comparably situated litigants — that party is likely to lose his or her claim, no matter how meritorious it may be. Accordingly, when we decide where the case is to be tried, we may well be preordaining its result on the merits, perhaps by default. In theory, the choice is simply which of two impartial judicial systems will decide the case. In the real world, especially for a non-affluent party, the opportunity to litigate the case meaningfully may be at stake.
Under these circumstances, and where the issue relates to a right as basic as a mother’s opportunity to be a parent to her child, I think it is the duty of courts to guard against attempts by parties to create jurisdictional facts through wrongful conduct and then to confront the court with a fait accompli. A party should not be permitted to use improper or unlawful means to create or enlarge the child’s connections with the party’s own state, and to reduce or destroy the child’s ties to the adversary’s state, and then be heard to claim that the jurisdiction of the wrongdoing party’s choice is the logical and appropriate one in which to litigate. To allow a contender for custody to do this would contravene the wise policy
that no man may take advantage of his own wrong. Deeply rooted in our jurisprudence, this principle has been applied in many diverse classes of cases by both law and equity courts.
Glus v. Brooklyn Eastern Terminal, 359 U.S. 231, 232-33, 79 S.Ct. 760, 762, 3 L.Ed.2d 770 (1959).
Significantly, one of the stated purposes of the PKPA is to “deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards.” PKPA § 7(c)(6), 94 Stat. 3566, 3569 (1980) (reprinted at 28 U.S.C. § 1738A note (1982)).3 Courts have long recognized the importance of discouraging
the resort to self-help which in the custody dispute is an irresponsible and barbaric remedy. Not only does self-help make the eventual placement of the children an arbitrary consequence, but it breeds reprisal in kind.
Application of Lang, 9 A.D.2d 401, 408-09, 193 N.Y.S.2d 763, 770 (1st Dept.1959). A major goal of the PKPA was to provide protection for the left-behind parent. See Rogers v. Platt, 641 F.Supp. 381, 388 (D.D. C.1986), rev’d on other grounds, 259 U.S. App.D.C. 154, 814 F.2d 683 (1987); 126 Cong.Rec. 22,807 (1980) (Senator Wallop). Under the UCCJA, too,
the days of spiriting children across state lines to litigate custody are over. After nearly fifty years of living with the practice and the untold misery it brought, the separate states have finally enacted a law with teeth.
Yacov Y. v. Margaret Y., 112 Misc.2d 623, 624, 447 N.Y.S.2d 644, 645 (1982). “Since the purpose of the [UCCJA] is to deter abductions and other unlawful conduct, it is held that a claimant cannot be permitted to rely on his or her wrongful conduct in order to establish jurisdiction in a foreign court.” Rogers v. Platt, 199 Cal.App.3d 1204, 245 Cal.Rptr. 532, 539 (1988) {Platt II). Both the PKPA and the UCCJA should be construed with these considerations in mind.
The foregoing principles apply even in a contest between two parents, each of whom has a colorable claim to custody of the child.4 The present case, however, *1043presents a situation in which the interdiction of self-help and “fails accomplis” takes on an even greater urgency. As the California Court of Appeal correctly stated, the Platts do not have even a colorable claim that they had the right to the custody of Ms. Rogers’ son. Platt II, supra, 199 Cal.App.3d at 1212-13, 245 Cal.Rptr. at 537. As Justice Sparks wrote for that court in a well-reasoned opinion, “there is simply no provision in law by which an unrelated person may unilaterally take custody of a child in derogation of the right to custody of the child’s natural parent.” Id. at 1213, 245 Cal.Rptr. at 537-38.
To be sure, the Platts did not kidnap the child. I fully agree with the California court, however — indeed, the point seems to me unanswerable — that
defendants’ temporary physical custody was permissive, but their retention of the child became unlawful when they refused to return the child upon plaintiff’s request.
Id. at 1213, 245 Cal.Rptr. at 538. Although Judge Hess made no explicit finding that the Platts’ conduct was wrongful,5 his underlying evidentiary findings to the effect that Ms. Rogers promptly asked for the return of her son and that the Platts refused to comply establish beyond peradventure that there existed no plausible legal or moral6 basis for the retention of Ms. Rogers’ son in Washington, D.C. without her consent.7
Ms. Rogers filed her action in California a day before the Platts filed in the District. Moreover, in California, a case is deemed pending once filed. My colleagues conclude, correctly in my view, that on this state of facts the California court had jurisdiction, and that our trial court therefore had no authority under the PKPA to proceed with the case. Suppose, however, that the Platts had filed a day earlier in the District, or that under California law a case became “pending” only after the defendants had been served and the Platts had successfully evaded service. Should this court then say that because the child has been brought to the District, and because connections with this jurisdiction have been created for him, the case must be tried in the wrongdoers’ lair, three thousand miles from the home of the child’s mother? I find such a conclusion so inequitable as to be beyond endurance. In cases such as this, where the Platts’ basis for retaining control of the child after the mother demanded his return is completely spurious, equitable considerations require that California be viewed as having no less connection with the child, and the District as having no more, than would have been the case but for the Platts’ wrongful retention of custody.8
If the Platts had acted lawfully and returned Ms. Rogers’ son to her within a reasonable time after her demand, the boy would have spent almost no time in the District and almost all of his time in California. California would obviously have had jurisdiction and the District would not, no matter who filed first where, and irre*1044spective of what steps were needed to make a case “pending.”
To permit jurisdictional “facts” created by wrongful conduct to control or affect the determination where the case is to be tried would have unjust and oppressive consequences. If the Platts can create jurisdiction in the District by keeping the boy here without authorization, then why cannot a kidnapper do the same? Moreover, if persons in the position of the Platts are permitted to enhance their opportunity to try the case in the District (and potentially win by default because of the adversary’s limited means) by not returning the child to the mother when the mother makes a lawful demand that they do so, it becomes far more profitable for them (in terms of the opportunity to litigate here and, ultimately, to retain the child) to do wrong rather than right. The temptation to hold on, to delay, and to evade, in an attempt to convert wishful thinking into reality, may become well-nigh irresistible. Here the litigation has dragged on for four years, the child has been with the Platts, and ties have been forged. The potential trauma for the boy if he is returned to his mother is far greater now than it would have been if the Platts had done the right thing and returned him to her when he was only a few weeks old. I cannot believe that the PKPA and the UCCJA were intended to countenance a scenario under which, to quote Leo (“the Lip”) Durocher, “nice guys finish last."
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All of the members of the division agree that the decision as to who shall have custody of the child must be made by the courts of California. I do not envy them that responsibility. This is a case in which, as a result of the Platts’ wrongful acts, the best interests of this child may not coincide with the best interests of children generally. If courts countenance creation of 'a fait accompli through self-help, they encourage the unilateral snatching or retention of innocent children. When this occurs, it is those children who suffer most.
What is not in the interest of any child is to have incompatible decrees in two jurisdictions with respect to his or her custody. That was the situation for Ms. Rogers’ son prior to this decision. The California courts had decreed that Ms. Rogers is entitled to temporary custody. Our trial court ruled that the Platts could adopt him, even though the California courts had held that they had wrongfully withheld him from the mother.
Such a situation is completely untenable. For one thing, it would as a practical matter frustrate any prospect that the child, if awarded to the Platts, could visit with Ms. Rogers in California. As I once wrote in an earlier judicial incarnation, in refusing to exercise jurisdiction where a mother had asked me to award her custody of her two children in contravention of an Indiana decree in favor of the father:
One need only consider the probable consequences to the Davis children if this Court had purported to award custody to the mother. If the mother had prevailed in the District of Columbia, then the courts of the two jurisdictions would have been in direct conflict as to which parent is entitled to custody of the children. The mother would then have confronted a situation in which, if she allowed the children to visit Indiana, the courts of that state would not recognize her custody and would not require the father to return the children to her. Accordingly, there would be a compelling incentive for the mother to prevent the children from ever going to Indiana or seeing the father. If, despite that inhibition, the children ever were permitted to visit the father in Indiana, then he would have every reason to prevent them from returning to Washington, for the courts of this jurisdiction would not recognize his right to custody. The prospects of the children retaining contacts with both parents — and such contacts are in almost all cases in the best interest of the children — would be bleak indeed.
Hamanaka v. Davis, 111 Daily Wash. L. Rptr. 9, 13 (D.C.Super.Ct.1982).9
*1045In this case, the California courts have jurisdiction. The only authority which devolves upon the Superior Court of the District of Columbia relates to the enforcement of the California decree, as prayed for in Ms. Rogers’ counterclaim. See 28 U.S.C. § 1788A(a), (f) (1988 Supp.); D.C. Code § 16-4513 (1989). I hope that this will be addressed forthwith, before new realities can be created to make the achievement of justice even more difficult.
. Unfortunately, as events have turned out, both sides have now been litigating in both jurisdictions for several years, with no end in sight.
. Ms. Rogers is represented in California by a Community Legal Services program at the McGeorge School of Law.
. The UCCJA contains an almost identical provision. D.C.Code § 16-4501(5) (1989). Although Ms. Rogers' son was not unilaterally "removed" from California, he was unilaterally kept in the District even though the Platts lacked any legal basis for not returning him.
.Section 2 of the UCCJA provides that the court may decline to exercise jurisdiction where a petitioner has wrongfully taken the child from another state or has engaged in similar reprehensible conduct. D.C.Code § 16-4508(a) (1989). The decision is a discretionary one. In conformity with the approach taken by the California Court of Appeal, I would hold that the option not to decline jurisdiction applies only where the petitioner has a colorable claim of right. See discussion at pp. 1043-1044, infra.
. Judge Hess did imply that the Platts’ refusal to return the child was reprehensible, noting that even if it were to be so characterized, that should not end the inquiry. See also n. 6, infra.
. The Platt’s reluctance to part with a child whom they had hoped to adopt is understandable but not defensible. The form which set the terms for the release of the child to them provided that "the parent has the right to reclaim the child at any time prior to signing the consent to the adoption.”
. Judge Hess found that the Platts knew, at least, that Ms. Rogers was having second thoughts, and that "with a little probing they would have learned, prior to her filing a lawsuit in California, that she had in fact changed her mind. Had they done so, their conditional right to custody would have terminated." (Emphasis added). The judge suggested that when Dr. Platt testified that he did not regard Ms. Rogers’ actions as a demand for the return of the child, "he may have been selective in what he wanted to hear.” Surely Dr. Platt had no right to avoid his legal obligations by resorting to wishful thinking, when both Ms. Rogers and several intermediaries, including the social worker, had unequivocally told him that Ms. Rogers wanted her son back.
.I also agree with the California Court of Appeal that before a person can properly be classified as one "acting as a parent” within the meaning of 28 U.S.C. § 1738A(b)(6), he or she must have at least a colorable claim to custody.
. Indeed, even a trip across the Key Bridge with the child can be risky in such a situation. Who *1045knows whether a Virginia court would enforce the California temporary custody order or the District of Columbia adoption decree.