concurring in part and dissenting in part.
Although I am compelled to dissent to the exercise of equitable jurisdiction by this court after its correct determination that the trial court was without authority to modify the Kentucky child custody award, I write largely to draw attention to three additional considerations in interstate custody disputes such as this.
No one in this lawsuit recognized the existence or applicability of the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A. While the PKPA is similar in approach to the UCCJA, IC 31-1-11.-6-1 et seq., it prohibits a forum state from exercising jurisdiction on the basis of the significant connection test so long as another state continues to have jurisdiction under the home state test. 28 U.S.C.A. § 1738A(c)(2)(B)(i); see Thompson v. Thompson (1988), 484 U.S. 174, 108 S.Ct. 513, 98 L.Ed.2d 512. Under both PKPA and UCCJA the trial court in the absence of emergency circumstances lacked jurisdiction to modify custody.
Secondly, both acts permit a forum state (provided it possesses a jurisdictional basis) to consider modification of a custody award if the court which made the prior award and which still has a jurisdictional basis declines to exercise its jurisdiction. Both the Indiana (IC 31-1-11.6-7) and Kentucky (KRS 403.460) versions of the UCCJA permit their courts to decline to exercise jurisdiction on the ground of inconvenient forum. Pursuant to the act, parties confronted with a jurisdictional dilemma may apply to the court and seek utilization of the most convenient forum.
Thirdly, the provisions dealing with a court’s determination to decline to exercise its jurisdiction on grounds of inconvenient forum authorize a sua sponte determination by the court and expressly encourage one court to communicate directly with the other to determine which court should be the appropriate forum. The interests of the parties, judicial economy and, most especially, the best interests of the children would be well served by utilization of the inconvenient forum procedures available under the UCCJA, including that of one judge simply telephoning the judge in another state to determine whether they can agree on the most appropriate forum.
Finally, I fully sympathize with the majority view that the children’s best interests would be served by allowing them to remain enrolled in their present school for the balance of the term and would urge the parties to agree to that arrangement without prejudice to their rights at a subsequent modification hearing, be it held in Indiana or Kentucky. Nevertheless, I am unable to concur in the majority’s disposition because I can find no basis for the exercise of our inherent equity power. There is nothing in the record to support a finding of an emergency basis for exercising jurisdiction. We have determined that the trial court was without authority to enter its order modifying the Kentucky custody order. We should, therefore, simply reverse and remand for such further proceedings as may be necessary consistent with our decision.