[34] The majority opinion interprets "where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination", in the federal Parental Kidnapping Prevention Act,1 to mean the state in which a request for a custody determination is first-in-time filed. I cannot accede to such an interpretation of a federal full faith and credit statute.2 Implicit in the statutory words "is exercising jurisdiction" is congressional intent that the other state has the parties before it and has determined it *Page 176 is the most appropriate state to make a custody determination and, therefore, is exercising jurisdiction. Accordingly, I respectfully dissent.
[35] Appellant, Jennie Roberts, claims her deceased son is the natural father of the twelve year old child, C.A.D. Appellant, David Roberts, is the present spouse of Jennie Roberts. In March, 1990, the minor child was residing with appellants and attending school in Texas, with the permission of appellee, Karen Nettie Draper, natural mother of the minor child. On March 2, 1990, appellants filed an action in Texas seeking appointment as conservators of the minor child. On March 5, 1990, a citation for personal service upon appellee was issued by the Texas court. Prior to personal service of the Texas summons, on March 13, 1990, appellee returned the minor to Oklahoma. On March 14, 1990, the Texas court issued an ex parte order placing temporary custody of the minor child with the appellants. On March 16, 1990, appellants filed an action for writ of habeas corpus in Oklahoma County district court, asserting right to custody of the minor child pursuant to the Texas ex parte order. Appellee filed a separate action requesting the Oklahoma County district court to assume jurisdiction and to make a custody determination of her minor child. Notice of the two Oklahoma actions were duly served upon the parties.
[36] Notwithstanding the absence of personal service of notice of the Texas conservatorship proceeding upon the appellee prior to determining its jurisdiction over the custody dispute, the Oklahoma County district court communicated by telephone with the Texas court. At the time of this telephone communication, the Texas court had not determined its jurisdiction over the custody dispute.3 The two pending custody actions between the parties were consolidated and trial was had. Upon a full evidentiary hearing,4 the Oklahoma district court determined that Oklahoma has jurisdiction over this child custody dispute;5 ordered that *Page 177 custody of the minor child should be and is with the natural mother, appellee; and, denied appellants' application for a writ of habeas corpus. Appellants now seek reversal of that custody order, asserting the lack of jurisdiction of the Oklahoma County district court.
[37] Subsequent to the conclusion of the custody proceedings before the Oklahoma district court the following events occurred. The reputed natural father of the minor child (named as father on the birth certificate) removed the minor child from Oklahoma and delivered him to appellants in Texas. Appellee voluntarily accepted service of notice of the Texas conservatorship proceeding. Upon default of the appellee, the Texas court proceeded to determine its jurisdiction of the custody dispute, finding that Texas did not agree to allow Oklahoma to determine jurisdiction. The Texas court determined that Texas is the appropriate state to determine custody of the minor child. The Texas court refuses to give full faith and credit to the Oklahoma child custody order.
[38] The Appellants' apparent present position in the Texas court is that Oklahoma's fully litigated custody order is not entitled to full faith and credit, in Texas, while, in this Court, they assert that Oklahoma must give full faith and credit to the Texas ex parte order. In deciding this jurisdictional dispute between competing states, the majority opinion interprets the federal Parental Kidnapping Prevention Act as requiring the Oklahoma district court to refrain from exercising jurisdiction in this child custody dispute in "deference to the first-in-time [commencing of] out-of-state forum litigation." I disagree.
[39] The Parental Kidnapping Prevention Act does not establish a procedural "race to the court house" test to determine jurisdiction between competing states. Rather, it requires a state to refrain from exercising concurrent jurisdiction over a custody dispute where another state has determined that it has jurisdiction over the parties and the child custody dispute and the other state is exercising that jurisdiction; and, it requires all states to give full faith and credit to the first state's ensuing custody order. Because Oklahoma was the first state to determine that it had jurisdiction and to exercise that jurisdiction, Oklahoma's custody order entered below is the "first state's ensuing custody order." Texas' ex parte order simply does not rise to the dignity of an exercise of jurisdiction consistent with the provisions of 28 U.S.C. § 1738A.
[40] The federal Parental Kidnapping Prevention Act provides:
§ 1738A. Full faith and credit given to child 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.
(b) As used in this section, the term — (3) "custody determination" means a judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications;
(e) Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any person whose parental rights have not been previously terminated and any person who has physical custody of a child.
(g) 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. [Emphasis added.]
[41] Section 1738A does not require nor allow jurisdictional preference to a state for first-in-time filing nor for ex parte orders. It speaks to "custody determinations made *Page 178 consistent with the section"; "reasonable notice"; "temporary and permanent orders"; and "exercise of jurisdiction consistent with the section." Fundamental in personam jurisdiction over the contestants is clearly a contemplated prerequisite to the exercise of jurisdiction consistent with § 1738A. The Texas court did not attain in personam jurisdiction over the natural mother herein nor had it determined its jurisdiction prior to the Oklahoma court's determination that it had jurisdiction of the child custody dispute and the Oklahoma court's exercise of jurisdiction. Accordingly, the Texas court could not have been exercising jurisdiction over the parties and the child custody dispute consistent with § 1738A at the time the Oklahoma court first exercised jurisdiction over this dispute.
[42] Section 1738A does not establish jurisdiction of child custody disputes in the first instance, as if it were a venue statute. It establishes national standards for a competing court of one state to determine 1) its jurisdiction and 2) the effect to be given to decisions of sister states.6 The United States Supreme Court has concluded that these statutory national standards prohibit a state, such as Texas in the instant dispute, from exercising concurrent jurisdiction once another state, such as Oklahoma, exercises jurisdiction consistent with § 1738A; and that "all States must accord full faith and credit to the first State's ensuing custody decree.7
[43] Research has revealed no federal jurisprudence deciding whether a state is exercising jurisdiction consistent with § 1738A because it issues an ex parte order prior to service of process upon all contestants. However, in Arbogast v. Arbogast,8 the West Virginia appellate court refused to give full faith and credit to another state's custody order, concluding that § 1738A requires that the decreeing state must have jurisdiction over the parties. And, in In re Custody of Thorensen,9 the Washington appellate court refused to give full faith and credit to a Florida ex parte temporary order, even though custody was originally fixed in the Florida divorce.
[44] The parties in this matter have enjoyed de facto shared custody of the minor child, C.A.D., and during every year of his twelve year life, C.A.D. has been a de facto resident of both states, Texas and Oklahoma. When C.A.D.'s natural mother announced that she intended to terminate the de facto shared custody arrangements and become the sole custodian for her son in Oklahoma, the Texas custodians filed a conservatorship in Texas. Before service of process of the Texas conservatorship could be had upon her, the natural mother removed the child from Texas to Oklahoma. Again, before service of process in the Texas proceeding, the Texas custodians secured an ex parte temporary child custody order in the Texas conservatorship. Armed with this Texas ex parte order, the Texas custodians sought a writ of habeas corpus in the Oklahoma district court. The natural mother filed a separate custody proceeding in the Oklahoma district court. With all the parties before it and upon telephone consultation with the Texas court, the Oklahoma district court determined it had jurisdiction under the U.C.C.J.A. and § 1738A.
[45] Because § 1738A does not require a state to defer to the "first-in-time out-of-state forum litigation" and because Texas had not exercised jurisdiction over the parties and the child custody dispute consistent with § 1738A prior to exercise of jurisdiction by the Oklahoma district court, I would affirm the determination that the Oklahoma district court properly exercised jurisdiction below.
The significance of Congress' full faith and credit approach to the child snatching is that . . . the Clause "only prescribes a rule by which courts, Federal and state, are to be guided when a question arises in the progress of a pending suit as to the faith and credit to be given by the court to the public acts, records, and judicial proceedings of a State other than that in which the court is sitting." [State of Minnesota v.] Northern Securities, supra [194 U.S. 48], at 72, 48 L.Ed. 870, 24 S.Ct. 598 [605]. Because Congress' chief aim in enacting the PKPA was to extend the requirements of the Full Faith and Credit Clause to custody determinations, the Act is most naturally construed to furnish a rule of decision for courts to use in adjudicating custody disputes. . . .
The language and placement of the statute reinforce this conclusion. The PKPA, 28 U.S.C. § 1738A [28 USCS § 1738A], is an addendum to the full faith and credit statute, 28 U.S.C. § 1738 [28 USCS § 1738]. [Emphasis added.]
Something more than the initiating of a suit in the courts of another state by a private individual is necessary to require one state to extend full faith and credit to a judicial proceeding pending in another state.
I do not view the communication between the Texas judge and the Oklahoma judge as material evidence in this case. At best, it is one reason for the Oklahoma court to proceed to hear evidence relating to its jurisdiction. The transcript of the March 22, 1990, reveals that the Oklahoma court was concerned that the appellants sought a writ based upon a Texas ex parte order and a mere allegation of paternal relationship to the minor child. The Oklahoma court cautioned the parties that it would hear all their evidence as to jurisdiction as well temporary and permanent custody prior to determining the issues in the consolidated proceedings.
The evidence presented to the Oklahoma district court is sufficient to establish the prerequisites for the exercise of jurisdiction by the Texas courts or the Oklahoma courts, pursuant to the applicable Uniform Child Custody Jurisdiction Act, 43 O.S. 1991 §§ 501[43-501], et seq. and, for Texas courts, Tex.Fam.Code Ann. § 11.53. Accordingly, the first state which "is exercising jurisdiction" is entitled to proceed without interference from the other state, pursuant to the federal preemption doctrine and the supremacy clause, application of these state statutes must be consistent with 28 U.S.C. § 1738A.