(dissenting). I would agree with the majority’s analysis if the DeBoers had gone to Iowa, purchased a carload of hay from Cara Clausen, and then found themselves in litigation in Iowa with Daniel Schmidt, who also claimed an interest in the hay. It could then properly be said that the DeBoers "must be taken to have known”1 that, rightly or wrongly, the Iowa courts might rule against them, and they should, as gracefully as possible,2 accept an adverse decision of the Iowa courts. Michigan would then have had no interest in the outcome, and would routinely enforce a decree of the Iowa courts against the DeBoers.
But this is not a lawsuit concerning the ownership, the legal title, to a bale of hay. This is not the usual A v B lawsuit; Schmidts v DeBoers, or, if you prefer, DeBoers v Schmidts.
There is a C, the child, "a feeling, vulnerable, and [about to be] sorely put upon little human being”:3 Baby Girl Clausen, also known as Jessica DeBoer, who will. now be told, "employing all necessary resources of the [Washtenaw Circuit] [C]ourt,” that she is not Jessie, that the DeBoers are not Mommy and Daddy, that her name is *694Anna Lee Schmidt,4 and that the Schmidts, whom she has never met, are Mommy and Daddy. This child might, indeed, as the circuit judge essentially concluded, have difficulty trying that on for size at two and one-half years, she might, indeed, suffer an identity crisis. The judge said:
We had different degrees of testimony from the experts. All the way from permanent, serious damage, she would never recover from, down to the child would recover in time. But every expert testified that there would be serious traumatic injury to the child at this time. [Emphasis added.][5]
A
The majority’s analysis, that the DeBoers should have known when they filed their petition for adoption in Iowa that they might lose, overlooks that the child did not choose to litigate in Iowa, over four hundred miles from her only home, the legal and factual issues that would decide whether her world would be destroyed, and know that she might lose.
A leading commentator, Professor Homer H. Clark, Jr., suggests that the preferable jurisdiction for adoption is the child’s home state6 and, thus, not necessarily the home state of a biological parent._
*695B
The well-established standard for resolving custody disputes between biological parents is the best interests of the child.7 Many courts apply essentially the same standard for resolving custody disputes between biological parents and third parties, persons who have had actual physical custody of a child for an extended period of time.8 Chief Judge Charles D. Breitel, speaking for the New York Court of Appeals, expressed it well:
The day is long past in this State, if it had ever been, when the right of a parent to the custody of his or her child, where the extraordinary circumstances are present, would be enforced inexorably, contrary to the best interest of the child, on the theory solely of an absolute legal right. Instead, in the extraordinary circumstance, when there is a conflict, the best interest of the child has always been regarded as superior to the right of parental custody. Indeed, analysis of the cases reveals a shifting of emphasis rather than a remaking of substance. This shifting reflects more the modern principle that a child is a person, and not a subperson over whom the parent has an absolute possessory interest. A child has rights too, some of which are of a constitutional magnitude .... [Bennett v Jeffreys, 40 NY2d 543, 546; 387 NYS2d 821; 356 NE2d 277 (1976). Emphasis added.]
Other courts adhere to the "parental right” theory, and generally, in a dispute between a parent and a third-party custodian, award custody to the parent unless the parent is unfit.9 Professor Clark criticizes the rigidity of that approach:
The parental right doctrine has acquired rigidity *696from the dubious and amorphous principle that the natural parent has some sort of constitutional "right” to the custody of his child. This principle comes dangerously close to treating the child in some sense as the property of his parent, an unhappy analogy which the Supreme Court has been guilty of in another context.
There would not be insuperable obstacles to the development of workable principles in these cases if the courts could manage to avoid doctrinaire statements about parental rights. In general this would require recognition that the child’s welfare is the principle guiding the process of decision, but in addition that the emotional and psychological advantages to the child of a parent’s care should be placed high in the scale of factors which contribute to that welfare. The application of these principles should vary with the specific type of case before the court.[10]
*697The majority’s analysis focusing on the contest between the Schmidts and the DeBoers for possession of the child misfocuses on whether biological parents or persons acting as parents have the better "legal right,” better legal title, not to a carload of hay, but to a child.11 The focus of the Parental Kidnapping Protection Act is not on the interests of the contestants — parents or persons acting as parents — but, rather, on the best interests of the child.
c
The superior claim of the child to be heard in this case is grounded not just in law, but in basic human morality. Adults like the Schmidts and the DeBoers make choices in their lives, and society holds them responsible for their choices. When adults are forced to bear the consequences of their *698choices, however disastrous, at least their character and personality have been fully formed, and that character can provide the foundation for recovery, the will to go on.
The character and personality of a child two and one-half years old is just beginning to take shape: To visit the consequences of adult choices upon the child during the formative years of her life, and to force her to sort out the competing emotional needs of the Schmidts and DeBoers, is unnecessarily harsh and without legal justification. The pkpa does not require this result.
The pkpa was enacted to protect the child.12 This Court, by ignoring obvious issues concerning the welfare of the child and by focusing exclusively on the concerns of competing adults, as if this were a dispute about the vesting of contingent remainders, reduces the pkpa to a robot of legal formality with results that Congress did not intend.
D
The motif of the majority opinion is that the pkpa made us do it, that this Court had no choice consistent with the "law.”13 That thesis ignores the legislative history of the pkpa14 and judicial decisions that construe the pkpa. The pkpa does not oblige this Court to turn its back on the child.
The majority rejects the rationale15 of EEB v *699DA, 89 NJ 595; 446 A2d 871 (1982), cert den sub nom Angle v Bowen, 459 US 1210; 103 S Ct 1203; 75 L Ed 2d 445 (1983). The New Jersey Supreme Court, in the context of an adoption that failed because parental rights were not duly terminated, ruled that prospective adoptive parents should retain custody of the child in preference to the biological parent because that was in the child’s best interests.
The majority states that the approach of the New Jersey Supreme Court in EEB "would form the basis for an opportunity to relitigate best interests.”16 (Emphasis added.) EEB does not, however, provide an opportunity for "relitigation” of best interests; EEB, as stated by the majority, declined to enforce the Ohio custody decree because the Ohio court "did not conduct a hearing using a best interests of the child test.”17 (Emphasis added.)
This Michigan litigation is not relitigation. The DeBoers accept the Iowa court’s determination that Daniel Schmidt is the biological father and do not contest the decision to restore Cara Schmidt’s parental rights. They seek, rather, to litigate, for the first time, whether transferring custody of the child to the Schmidts is in her best interests.
EEB is one of two state supreme court decisions in which the court considered the issue whether a state is obliged by the pkpa or the uccja to enforce a custody determination made by another state following a failed adoption where the other state did not, before making its custody determination, consider the best interests of the child. The other case is Lemley v Barr, 176 W Va 378; 343 SE2d 101 (1986). The West Virginia Supreme *700Court, cognizant of the uccja,18 concluded that there must be a best interests hearing before it could decide whether to require prospective adoptive parents to transfer custody of the child to biological parents whose parental rights had not been duly terminated. As in EEB and the instant case, the courts of the state where the biological parents resided had failed to conduct such a hearing before requiring the prospective adoptive parents to return the child to them.
Because the United States Supreme Court has ruled that the pkpa does not provide an implied cause of action in United States courts to determine which of two conflicting state custody determinations is valid,19 there are no federal court decisions construing the pkpa and there will be none. The conflict between the New Jersey and the West Virginia decisions on the one hand, and this Court’s decision in the instant case on the other, can only be resolved by the United States Supreme Court.
I agree with the New Jersey and West Virginia Supreme Courts — the only courts before the instant case to consider the precise issue before us— that the pkpa does not require a state, such as Michigan, to transfer, without a best interests hearing, custody of the child from prospective adoptive parents with whom she has bonded almost since birth, to comply with the decree of a state- in which the biological parents live, when that decree was entered without considering *701whether a transfer of custody would serve the child’s best interests.20
E
Professor Clark, after reviewing at length the history of adjudication under the pkpa21 and the uccja, found little or no consistency in adjudication. He saw little diminution in what he characterized as local court chauvinism, the awarding of custody to the home town parent.
He also observed that the pkpa and the uccja have provided an excuse for courts that wished to avoid the difficult and distasteful task of reaching the merits, the evaluation of parents as candidates for custody, "of trying to discover what disposition will best serve or least harm the child.” Instead of grappling with the tough issues of deciding the case on the merits, "the case can be analyzed in terms technical enough to delight a medieval property lawyer. And if the judge is sufficiently deter*702mined, , he can often find that the case should be heard in some other state.”22
i
The majority states that enforcement of the Iowa decree is required by the pkpa, and that it is unnecessary to consider the uccja because the pkpa preempts inconsistent state law.23
The majority identifies Iowa as the "home state” of the child under the pkpa. The majority errs in so concluding. Michigan is the home state under the pkpa, and therefore the Iowa decree is not enforceable under the pkpa in Michigan.
A
Congress enacted the pkpa, not because of an abstract concern about "interstate controversies over child custody,” but rather "in the interest of greater stability of home environment and of secure family relationships for the child” (emphasis added)24 — to secure "family relationships,” not *703solely biological family relationships. Among the evils that Congress found and sought to remedy was "harm to the welfare of children and their parents and other custodians.” (Emphasis added.)25
Congress sought to achieve its objective of "secure family relationships for the child”26 by assuring that a "determination of custody and visitation is rendered in the state which can best decide the case in the interest of the child.” (Emphasis added.)27 Michigan, not Iowa, is the state that can best decide this case in the interest of the child.
B
Congress identified the "home state” of the child as the "state which can best decide the case in the interest of the child.”28 "Home state” is defined as *704the "State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons.” (Emphasis added.)29
In this case, the child did not "live from birth” with either Cara Clausen or the DeBoers. The child resided for a few days at the hospital where she was born, then for two weeks with caregivers to whom the child had been entrusted, and has lived in Michigan since the end of February 1991, when, within three weeks of birth, physical custody was transferred to the DeBoers pursuant to a court order then entered in Iowa.
Michigan is the child’s home state because she has lived in Michigan with the DeBoers, persons "acting as a parent,”30 for at least six consecutive *705months — actually for over two years.31
Michigan, the home state, would also qualify as the state having jurisdiction under the pkpa pursuant to the alternative "significant connection” test for a case where no state is the home state. In such a case, Congress designated as the "state which can best decide the case in the interest of the child,” a state where "it is in the best interest of the child that a court of such state assume jurisdiction because” the "child and his parents, or the child and at least one contestant, have a significant connection” "other than mere physical presence in such State” and where there is available "substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.”32
*706The child did not have a significant connection with Daniel Schmidt in Iowa. There is more substantial evidence concerning the child’s present or future care, protection, training and personal relationships in Michigan than in Iowa. There has not been a finding that it is in the child’s best interests that Iowa assume jurisdiction of the custody dispute that arose — after an Iowa court entered an order transferring custody of the child to the DeBoers and they had set up home with the child in Michigan — when it became known that Cara Clausen had committed a fraud on the court and Daniel Schmidt came forward to assert his rights as a putative father.
c
The majority acknowledges that the pkpa "gives the home state exclusive continuing jurisdiction,”33 and that " '[a] child custody determination ... is consistent with the provisions [of the pkpa] only if’ the court making the determination had jurisdiction under its own laws, and the state was the 'home state’ of the child when the proceedings were commenced.”34 The majority then asserts that Iowa was "unquestionably the home state of the *707child”35 without any reference to or consideration of the statutory definitions36 of "home state.”
Iowa "unquestionably” was not the home state of the child, either at the time of the commencement of the adoption, or of the termination of parental rights proceedings,37 or at any other time. Only a state in which the child has resided for at least six consecutive months can be a home state.38 The child in the instant case resided in Iowa for less than three weeks.
The majority misstates the facts and misreads the pkpa, on which it so heavily relies, when it asserts that Iowa was "unquestionably the home state of the child.”
The majority also asserts that "[tjhere can be no doubt that at the time the Iowa proceedings commenced in February 1991, that state was the appropriate one to take jurisdiction; it was in the best position to resolve the issues presented.”39 (Emphasis added.)
The formulations "appropriate” and "best position” do not appear in the pkpa. It is an overstatement to assert that there can be "no doubt” that Iowa had jurisdiction, that it was the "appropriate *708one” under the pkpa, when it was neither the "home state” nor the state of "significant connection” within the meaning of the pkpa. While Iowa may have been in the "best position” to resolve the issues concerning Daniel Schmidt’s assertion of parental rights, it is not undoubted that Iowa was in the "best position” to resolve the custody issues here presented.
D
That Michigan, not Iowa, is the state that had jurisdiction within the meaning of the pkpa is clear from the commentary to the uccja on which the pkpa is modeled:
The first clause of the paragraph is important: Jurisdiction exists only if it is in the child’s interest [emphasis in original], not merely the interest or convenience of the feuding parties [emphasis added], to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state. The submission of the parties to a forum [emphasis added], perhaps for purposes of divorce, is not sufficient [emphasis added] without additional factors establishing closer ties with the state. Divorce jurisdiction does not necessarily include custody jurisdiction. See Clark, Domestic Relations 578 (1968). [Comment to § 3, UCCJA, 9 ULA, part I, p 145.]
The issue to whom custody of the child should be awarded did not arise until after the child had left Iowa and had begun to reside in Michigan. That issue — the central issue in this case — did not fully ripen for adjudication until it was determined, following a hearing in November 1991, and a decision affirmed by the Iowa Supreme Court in September 1992, after the child had been living in *709Michigan for over six months, that Daniel Schmidt was the biological father of the child, that he had not abandoned the child, and that he was not unfit under Iowa’s standards.
As stated in the commentary, jurisdiction exists "only if it is in the child’s interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state” (emphasis added).40 "The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state.” (Emphasis added.)41
Neither the Iowa Supreme Court nor this Court has found that it is "in the child’s interest” that Iowa assume jurisdiction to decide the custody dispute between the Schmidts and the DeBoers, which arose after the child began living in Michigan with the DeBoers.
There was no contact between Daniel Schmidt and the child in Iowa, minimum contact between Cara Schmidt and the child in Iowa, and maximum contact between the child and the DeBoers in Michigan.
The "submission of the parties” to Iowa jurisdiction for purposes of determining whether the Iowa court would enter an order of adoption, and later whether Daniel Schmidt was the biological father, had abandoned the child, or was a fit parent, was "hot sufficient without additional factors establishing closer ties with the state. Divorce jurisdiction [and I would add parental rights termination jurisdiction42] does not necessarily include custody jurisdiction.”43
*710The bases for pkpa jurisdiction are "required” to "be interpreted in the spirit of the legislative purposes expressed in” the pkpa and the uccja,44 among which are to achieve the entry of a custody decree "rendered in that state which can best decide the case in the interest of the child,” and to "assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available.”45
E
In sum, the underlying theme of the pkpa and the uccja is that a determination of custody and visitation should be made according to the child’s best interests. Jurisdiction should be exercised by the state that has the most "significant connection” to the child if "it is in the best interest of the child.”46 Congress has said that that state is the home state, in this case Michigan.
The pkpa seeks to assure that a custody determination is "rendered in the State which can best decide the case in the interest of the child”47 Congress has said that that state is the home state, in this case Michigan.
The pkpa was enacted to avoid jurisdictional competition between states that had, in the past, *711resulted in shifting children from state to state "with harmful effects on their well-being. ”48
In according jurisdictional priority to the home state, or the state with significant connections, in this case Michigan, Congress sought to avoid jurisdictional competition, shifting children from state to state, and the resulting harmful effects on their well-being.
F
Assuming that the pkpa applies to adoption proceedings,49 and that is the assumption on which the majority opinion is predicated,50 the underlying themes of the act must be observed.
Professor Clark wrote that subject matter jurisdiction in adoption should be given to the home state of the child:
If the rationale of jurisdictional rules has been correctly outlined, it points to subject matter jurisdiction in adoption where a) the prospective adoptive parents, the petitioners, reside in the jurisdiction, and b) the child is physically present in the jurisdiction. "Reside” should be construed here to mean not technical domicile, but residence in the popular sense, of a person’s home for the time *712being, the purpose of this construction being merely to require a sufficient connection with the jurisdiction to enable the court to make the necessary judgments about the child’s prospective environment.[51] [Emphasis added.]
He continues, stating that the analysis he suggests seems to be in the process of being adopted through the uccja and the pkpa:
If the foregoing argument is sound and the uccja and pkpa do apply to adoption and termination of parental rights, then the usual basis for jurisdiction over such proceedings will be proof that the child’s "home state” is the state of the forum. Under the uccja jurisdiction may also be based on proof that the state of the forum has a "significant connection” with the child and at least one of the contesting parties. The use of either of these bases for jurisdiction should go far to achieve the purposes outlined above as being the purposes which jurisdictional rules governing adoption should serve.[52] [Emphasis added.]
As Professor Clark explains, the only issues in an adoption proceeding with respect to the natural parents, are “whether the consent is genuine, or whether the alleged abandonment or neglect did occur. These resemble the issues in the ordinary transitory lawsuit, and there is thus no need for any requirements of domicile or residence on the part of the natural parents.”53
But, suggests Professor Clark, "[s]ince adoption consists of matching a child with a new parent or set of parents,” there is a need for a "thorough opportunity to study the child and his background. To give the court this opportunity, the child must *713be present and available in the jurisdiction.”54 He concludes for those reasons that that subject matter jurisdiction in adoption should be where the adoptive parents reside and the child is physically present.
Iowa might have been the appropriate jurisdiction and in the best position to decide whether Cara Clausen’s consent was genuine and whether Daniel Schmidt’s claimed parental rights should be terminated because he abandoned the child or was unfit. Merely because Iowa might have been the appropriate jurisdiction for those purposes, does not mean that it had jurisdiction within the meaning of the pkpa to decide whether custody of the child should be permanently awarded, in the case of this failed adoption, to the Schmidts or the DeBoers.
If, as Professor Clark contends, the pkpa provides "the governing rules for jurisdiction in [adoption] cases and for the effect to be given to decrees of adoption or for the termination of parental rights,”55 then Michigan, the home state, and not Iowa had subject matter jurisdiction within the meaning of the pkpa.
g
I conclude that because Iowa was not the home state, or the state with significant connection, and thus did not have jurisdiction within the meaning of the pkpa, the pkpa does not require Michigan to enforce an Iowa decree transferring custody of the child from the DeBoers to the Schmidts.
ii
It was necessary to resolve whether Daniel *714Schmidt was the biological father, had abandoned the child, and was fit or unfit before Iowa could decide that he had parental rights and that his parental rights should not be terminated.
Until those issues were adjudicated, the issue whether custody should remain with the DeBoers because that was in the child’s best interests had not ripened for adjudication.
The Iowa decree is not res judicata.
A
Although Iowa had in personam jurisdiction over all the parties, and, under traditional views of in personam jurisdiction, could enter a custody order transferring the child from the DeBoers to the Schmidts, it did not have subject matter jurisdiction to make a custody determination within the meaning of the pkpa, enforceable under the strictures of the pkpa, because Michigan, by then, had become the home state of the child and the state with significant connection. The DeBoers left Iowa with the child in good faith, not to escape Iowa jurisdiction.
The issues actually litigated and determined in Iowa were whether Daniel Schmidt was the biological father, had abandoned the child, and was fit or unfit. Because it was determined that he was the biological father, had not abandoned the child, and was not unfit, it was decreed that he had parental rights and that the DeBoers’ petition for adoption must therefore be dismissed. Subsequently, it was determined that Cara Schmidt’s parental rights would be restored because she and Daniel Schmidt had married, not because it was determined that her consent to the adoption of the child was invalid.
The proceedings in Iowa, which began as adop*715tion proceedings, were transformed into parental rights termination proceedings after Daniel Schmidt intervened in the adoption proceedings. In holding that his parental rights would be recognized and not terminated, the Iowa Supreme Court said that, in a parental rights termination proceeding, the best interests of the child are not to be considered under Iowa law in deciding whether parental rights should be terminated unless the statutory grounds for termination have been established. Having concluded that Daniel Schmidt’s parental rights would not be terminated, the custody of the child was ordered transferred to him.
The DeBoers’ petition for rehearing, asserting that although it had been adjudicated that Daniel Schmidt’s parental rights would not be terminated, the best interests of the child should be considered before ordering the transfer of custody from the DeBoers to the Schmidts was denied without comment.
B
The only issues actually litigated and decided56 were whether Daniel Schmidt’s parental rights should be recognized and not terminated. The reason given by the Iowa Supreme Court for not considering the best interests of the child was that the child’s best interests are not relevant on the issues in a parental rights termination proceeding.
The separate question whether, in a dispute between a parent and a third-party custodian, the *716best interests of the child should be considered in deciding whether to transfer custody from the custodian to the parent was not actually litigated. And, as stated by the Iowa Supreme Court, a determination of the best interests of the child was not essential or even pertinent to decision of the question whether Daniel Schmidt’s parental rights should be recognized and not terminated.
In denying rehearing, the Iowa Supreme Court did not enlarge on the reasons set forth in its opinion. Its silence does not provide a basis for concluding, contrary to the statements in the opinion explaining why the best interests of the child could not be considered on the termination of parental rights issue, that it had considered, adjudicated and decided that the best interests of the child may not be considered in deciding the separate issue whether custody should be transferred from the custodian, the DeBoers, to the parent, Daniel Schmidt. That issue, not having been adjudicated and decided, and not being necessary or pertinent to decision under Iowa law on the question whether Daniel Schmidt’s parental rights should be terminated, is not precluded under the doctrine of res judicata.57
hi
For reasons already stated, I would hold that the Iowa decree may not be enforced under the pkpa *717because Iowa was not the home state, and thus did not have jurisdiction.
A
Assuming that Iowa had jurisdiction, the question remains whether the Iowa decree was subject to modification in Michigan, because Iowa declined to exercise jurisdiction to conduct a hearing to consider whether to modify on the basis of the best interests of the child following its conclusions that Daniel Schmidt was the biological father, had not abandoned the child, and was not unfit, and that his parental rights would be recognized. I would hold that the decree was subject to modification because Iowa declined to exercise jurisdiction to conduct such a hearing.58
The majority stresses59 that, under the pkpa, the jurisdiction of Iowa courts, "continues” as long as those courts have jurisdictions under the law of Iowa, and any contestant resides in Iowa,60 and that a court of another state "shall not exercise jurisdiction in any proceeding for a custody deter*718mination 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.”61 (Emphasis added.)
I acknowledge, assuming that Iowa had jurisdiction, although it was not the home state or the state , of significant connection, that its jurisdiction "continued.” I further acknowledge that Michigan could not then exercise jurisdiction while Iowa courts were exercising jurisdiction "to make a custody determination.” But the Iowa courts had made their custody determination, ordering that custody of the child be transferred, before Michigan exercised jurisdiction to consider whether the Iowa decree should be modified. The continuing jurisdiction provision of the pkpa does not bar Michigan from considering whether to modify the Iowa decree after Iowa had made its determination.
Proceeding on the hypothesis that Iowa had jurisdiction, although not the home state or state of significant connection, Michigan could exercise jurisdiction to modify the Iowa decree only if Iowa courts had "declined to exercise such jurisdiction to modify such determination.”62 The Iowa Supreme Court failed to exercise jurisdiction to modify when it denied rehearing to consider the best interests of the child, and, therefore, Michigan could properly exercise jurisdiction to modify the Iowa decree.
The New Jersey Supreme Court, in similar circumstances, held that "Ohio’s failure to conduct a best interest hearing constitutes refusal to exercise jurisdiction under 28 USCA § 1738A(f)(2). Under *719pkpa, therefore, New Jersey is free to modify the Ohio decree. This result comports with the congressional intent that child custody decisions be made in the state best able to determine the best interest of the child.” EEB v DA, supra, 607.63 The court said:
A custody dispute is more than a jurisdictional chess game in which winning depends on compliance with predetermined rules of play. A child is not a pawn. In exercising its discretion within the confines of uccja and pkpa, a court should consider not only the literal wording of the statutes *720but their purpose: to define and stabilize the right to custody in the best interest of the child. [EEB v DA, supra, p 611.]
The West Virginia Supreme Court reached essentially- the same conclusion in the construction of the uccja, and required a best interests hearing before it would decide, following a failed adoption, whether to enforce a decree ordering transfer of custody entered by the state where the biological parents resided where a best interests hearing had not been conducted. Lemley v Barr, supra.64
B
As in EEB, the DeBoers litigated the termination of parental rights issue in the Iowa courts. The DeBoers requested a best interests determination at each stage in the'proceedings. After the Iowa Supreme Court ruled that the best interests of the child were not a factor to be considered in deciding whether to terminate the parental rights of Daniel Schmidt, the DeBoers, like the adoptive parents in EEB, petitioned for rehearing, seeking a best interests hearing with respect to a change in custody. The Iowa Supreme Court, like the Ohio *721Supreme Court in EEB, denied rehearing.65 The DeBoers then, like the adoptive parents in EEB and Lemley,66 asked that the home state, Michigan, conduct a best interests hearing.
As in EEB, the refusal of the Iowa Supreme Court to hear the petition for rehearing constituted a refusal to exercise jurisdiction to modify. Because the Iowa Supreme Court declined to exercise jurisdiction to conduct a hearing to consider whether to modify on the basis of the best interests of the child, Michigan may, consistent with the pkpa, exercise jurisdiction to conduct a hearing to consider whether to modify on the basis of the best interests of the child.
c
In Interest of Brandon LE, the Supreme Court of West Virginia modified a Florida custody decree that required that a custodial grandmother transfer custody of a child to his father with whom he had little contact.67 The court wrote: "To protect the equitable rights of a child in this situation, the *722child’s environment should not be disturbed without a clear showing of significant benefit to him, notwithstanding the parent’s assertion of a legal right to the child.”68
Daniel Schmidt, like the father in Brandon L E, prevailed on the issue of parental fitness. He asserted, as does Daniel Schmidt, that it was through no fault of his that he did not have an opportunity to establish a relationship with his child. The West Virginia Supreme Court, nevertheless, concluded that the child’s best interests must prevail. The child’s right to a best interests determination lies in equity and is not dissipated by a finding of parental fitness.69
Even in child snatching cases, courts have placed consideration of the child’s best interests ahead of punishment of the wrongdoer. Courts have recognized that the passage of time may mean' that it is in the child’s best interests to continue living with the party that "kidnapped” the child from the lawful custodian.70
*723D
The majority states that the suggestion that "the best interests purpose of the pkpa mandates a best interests analysis in Iowa” also suggests that "Congress intended to impose the substantive best interests rule in all custody determinations on the laws of the fifty states.”71
I acknowledge that the "pkpa is a procedural and jurisdictional statute, which does not impose principles of substantive law on the states.”72
Iowa may indeed be free to award the custody of children, in particular circumstances, without regard to their best interests. It does not follow that a decree rendered without consideration of the child’s best interests is entitled to enforcement under the pkpa, where the court rendering the decree declined to exercise jurisdiction to conduct *724a hearing to consider whether to modify the decree on the basis of the child’s best interests.
A decree rendered by a state other than the home state is not a determination made "consistent with the provisions” of the pkpa.73 A decree rendered without consideration of the child’s best interests is not a decree that the Congress intended that all other states must enforce.
iv
The DeBoers advance several theories to support their argument that they have standing to litigate their claims to custody of the child. They argue that the uccja74 grants them standing, that they have a protected liberty interest in their relationship with the child, and that Bowie v Arder75 does not deny them standing. The majority discusses and rejects all these arguments.76
I would hold that the DeBoers have standing under the pkpa. Because the DeBoers have standing under the pkpa, and, as the majority notes, the pkpa "clearly preempts inconsistent state law”77 the majority’s analysis and rejection of the DeBoers’ arguments is incorrect.
A
The controlling provisions in the standing dispute are those defining jurisdiction. The DeBoers claim jurisdiction under both the "home state” *725and "significant connection” tests of the pkpa.78 "Home state” jurisdiction requires that the child be living with "his parents, a parent, or a person acting as parent” for at least six months "immediately preceding the time involved.”79 The pkpa provides that 'person acting as a parent’ means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody.”80 (Emphasis added.)
"[Significant connection” jurisdiction hinges on, whether "the child and his parents, or the child and at least one contestant, have a significant connection with the State other than mere physical presence.”81 (Emphasis added.) The pkpa provides that " '[contestant’ means a person, including a parent, who claims a right to custody or visitation of a child.”82
The question, then, is whether the DeBoers are either "person[s] acting as . . . parent[s]” or "contestants” within the meaning of the act. I would hold that the DeBoers are "person[s] acting as . . . parent[s]” because they have physical custody of the child and were granted custody by a court, and also because they claim a right to custody.
It is undisputed that the DeBoers have physical custody of the child. Physical custody alone is not, however, enough under the definition of "person acting as a parent.” A person must have physical custody and have been "awarded” custody by a court or claim a right to custody. Alternatively, *726because they "claim a right to custody” they are "contestants” within the meaning of the pkpa.
The DeBoers obtained custody when Cara Schmidt signed the consent to adoption. They were granted and permitted to retain physical custody by court order during each step of the proceedings in Iowa, until the order of the Iowa district court terminating all rights to custody on December 3, 1992. Michigan courts have maintained the status quo thereafter.
The majority holds that the rescission of the temporary custody order by the Iowa district court made the DeBoers third parties to the child and stripped them of any basis on which to claim a substantive right of custody.83
The pkpa provides however, that a person acting as a parent is someone who "has . . . been” awarded custody. "Has” refers to the past. In the past, the DeBoers were granted physical custody by the Iowa courts.
The DeBoers also have standing as persons who "claim[] a right to custody” of the child. The DeBoers’ claim to a right of custody rests on the court orders granting them custody. The action of the Iowa courts granting the DeBoers physical custody of the child and maintaining physical custody with them throughout the proceedings in Iowa is evidence that the Iowa courts saw merit in the DeBoers’ claim to custody. Although the Iowa courts have now ruled against the DeBoers, that does not strip the DeBoers of their claim to custody when their claim challenges the enforceability in Michigan of the Iowa decree.
The majority relies on Bowie to conclude that the DeBoers have no claim to custody. Bowie, however, does not address the definition of claim to custody. Bowie construes Michigan’s Child Cus*727tody Act.84 Bowie and the Child Custody Act are preempted by the pkpa.
b
The majority concludes that the pkpa preempts inconsistent state law and that it controls the issue of jurisdiction in this case.85 Since the pkpa preempts inconsistent state law when jurisdiction is the issue, then it preempts inconsistent state law on standing issues. This Court’s decision in Bowie denying standing to third parties is necessarily limited to intrastate custody disputes and does not govern whether the DeBoers have standing in the instant case.
To conclude that the pkpa preempts in determining jurisdiction but not with respect to standing is untenable. The pkpa definitions of standing are part and parcel of the jurisdictional definitions. Standing in a "home state” depends on the presence in the state of a "person acting as a parent.” Standing in a "significant connection” state depends on the presence in the state of a "contestant.”
The pkpa is structured so that a determination of jurisdiction incorporates a finding of standing. The pkpa cannot be parsed to conclude that it preempts state law on jurisdiction but not on standing.
Superimposing this Court’s decision in Bowie depriving third parties of standing in intrastate disputes upon third parties in interstate disputes governéd by the pkpa violates the Supremacy Clause. The statement in Bowie that this Court was not limiting the decision to third-party actions brought under the Child Custody Act must neces*728sarily be limited to intrastate disputes in light of pkpa preemption.86
Because the pkpa governs this dispute and provides the DeBoers with standing, either as persons acting as parents or as contestants, there is no need to address any of the other standing arguments raised by the parties.
v
The majority states:
We express no opinion about whether we would require a Michigan court to hold a best interests of the child hearing if we were faced with the circumstances presented to the Iowa courts.[87]
This litigation unavoidably requires this Court to consider and decide whether a Michigan court would hold a best interests hearing were it faced with the circumstances presented to the' Iowa courts. I think it clear that Michigan law would require such a hearing.
Also implicated are the child’s and the DeBoers’ constitutional right to equal protection of the laws and due process of law. To grant to some citizens of this state such a hearing, and to refuse to provide such a hearing to other citizens similarly situated, poses constitutional issues that can be avoided by recognizing that a best interests hearing is required in this case.
Consideration of the child’s best interests is required in all manner of custody disputes, including adoptions, parental rights termination proceed*729ings, and proceedings concerning parental rights of putative fathers.88
The public policy of Michigan, as declared by the Legislature in § 3989 of the Michigan Adoption Code,90 requires a Michigan court to consider whether the best interests of a child would be served by awarding custody to a putative father, such as Daniel Schmidt, who did not live with the mother or contribute to her support during the pregnancy:91
*730(1) If the putative father does not come within the provisions of subsection (2), and if the putative father appears at the hearing and requests custody of the child, the court shall inquire into his fitness and his ability to properly care for the child and shall determine whether the best interests of the child will be served granting custody to him. If the court ñnds that it would not be in the best interest of the child to grant custody to the putative father, the court shall terminate his rights to the child.
(2) If the putative father has established a custodial relationship with the child or has provided *731support or care for the mother during pregnancy or for either mother or child after the child’s birth during the 90 days before notice of the hearing was served upon him, the rights of the putative father shall not be terminated except by proceedings in accordance with section 51(6) of this chapter or section 2 of chapter XIIA. [MCL 710.39; MSA 27.3178(555.39). Emphasis added.]
Daniel Schmidt does not qualify under subsection 2 of the statute because he did not "establish a custodial relationship with the child” or provide "support or care for the mother during pregnancy” as required under subsection 2. Accordingly, Daniel Schmidt falls into the category of putative fathers for whom Michigan requires a best interests hearing before his parental rights would be recognized and he could obtain custody.92
vi
The sympathetic portrayal of the Schmidts in the majority opinion ignores that it was Cara Schmidt’s fraud on the Iowa court and on Daniel Schmidt that is at the root of this controversy. If she had identified Daniel Schmidt as the father when she consented to waive her parental rights, before she had a change of heart, he too might have relinquished his parental rights. If Daniel Schmidt had refused to relinquish his rights, the DeBoers would not have assumed custody of the child and this litigation would have been avoided.
To fault the DeBoers is unwarranted. Why should they have believed that Cara Schmidt was telling the truth when she said she had fraudulently named the other man as the father? The DeBoers discovered that Schmidt had a dismal *732record as a father.93 They chose, as provided by the legal system, to challenge his claim that he was the biological father and also to contest his fitness as a father.
The Iowa courts thought there was sufficient merit in the DeBoers’ claims that they maintained custody of the child with the DeBoers until after the Iowa Supreme Court ruled. One justice agreed with the DeBoers.94 Justice Snell observed in dis*733sent that holding the rights of biological parents paramount to other values casts a cloud over adoptions.
The majority suggests that the DeBoers are posturing when they claim that they seek to vindicate the best interests of the child, and would be emotional not to accept unquestioning without seeking relief in another forum, the decision of this Court.95
The majority is not troubled that the result of its decision will be to return the child to Cara Schmidt despite her fraud. The majority appears to excuse her fraud by stressing that she gave her consent within forty hours, not seventy-two hours.96 This was brought to the attention of the Iowa courts. The Iowa Supreme Court declined to hold that a consent given within seventy-two hours is necessarily invalid and remanded for a determination whether she waived the seventy-two hour provision.97
The decisions of this Court are entitled to respect. I am hopeful, however much I disagree with this decision, that it will be duly respected. But the Court goes too far in asking of the DeBoers unquestioning obedience to its decision. The Court’s preachment bespeaks a grandiose view of its authority.
VII
The majority, by ignoring the best interests of *734the child, has approached this case as if it were a contest between two parties over a piece of property. If the majority were true even to this approach, it would find for the DeBoers and not the Schmidts.
The relevant property law analysis would involve the allocation of risk of loss among innocent persons in cases of fraud. Here, the DeBoers and Daniel Schmidt are the victims of Cara Schmidt’s fraud on the Iowa court. The question before a court would then be who must suffer the consequences of the fraud.
The law generally places the risk of loss on the person in the best position to avoid the loss in the first place.98 Putative fathers are aware that sexual *735intercourse may result in pregnancy, and of the potential opportunity to establish a family. If they wish to protect that opportunity, they can do so by maintaining some relationship with the women with whom they had intercourse to determine whether they become pregnant.
Daniel Schmidt and Cara Clausen ceased their sexual relationship within a month of the time the child was conceived. Daniel Schmidt had observed that Cara Clausen was pregnant. He was thus on notice and inquiry. The child was conceived in the last days of April, 1990 and was born on February 8, 1991. If Daniel Schmidt had bothered to count, he would have known that the child was probably his. Cara Schmidt’s subterfuge was successful because, as Judge Snell observed, Daniel, knowing that Cara was pregnant, "did nothing to protect his rights.” Where there is fraud, the law must place the risk of loss somewhere. I would not place that risk on the child but rather on the putative father.
VIII
The majority’s decision appears to be driven by the same philosophical preference for the rights of biological parents reflected in this Court’s decisions in Ruppel v Lesner, 421 Mich 559; 364 NW2d 665 (1984),99 and Bowie v Arder, 441 Mich 23; 490 NW2d 568 (1992).100
*736Those decisions and the instant litigation have inspired legislative efforts to amend the Child Custody Act to reverse the rule enunciated in Bowie effective as of the date it was decided, and to restore the standing of persons such as the DeBoers.101
The majority directs that this Court’s judgment order enter forthwith. This has only been done, in the last twenty-five years, when, on recommendation of the Judicial Tenure Commission, a judge is removed from office,102 or when, on two occasions, such a directive was necessary because otherwise scheduled bond sales would, fall through. See Bigger v Pontiac, 390 Mich 1; 210 NW2d 1 (1973), concerning the sale of bonds for the construction of the Silverdome, and Eby v Lansing Bd of Water & Light, 417 Mich 297; 336 NW2d 205 (1983), concerning the sale of bonds for the construction of the Belle River power plant. Directing that the judgment order issue forthwith is clearly extraordinary.
The majority has not explained why such a direction is being given in this case. It might be to forestall the possible application to this case of any amendment of the Child Custody Act.
The majority’s specific direction imposing time limits regarding the return of the child also reflects its apparent conclusion that the Schmidts are the aggrieved parties and the majority’s determination to see to it that nothing prevents righting the wrong done them by the DeBoers in prolonging this litigation and by the Washtenaw Circuit Court in deciding to hold a best interests hearing.
I recognize that this litigation must come to an *737end. But the judicial process has not run its course simply because this Court has announced its decision. The DeBoers may seek rehearing. They may seek a stay from this Court, which clearly will be refused; they may then seek a stay from a justice of the United States Supreme Court and apply for certiorari. They may even seek relief in Iowa. There may be other courses of legal action that resourceful counsel may recommend or undertake. It is unseemly for this Court to appear to be thwarting such efforts.
IX
Decisions of the United States Supreme Court103 concerning the rights of putative fathers to retain custody of a child where a family relationship has been established have been relied on to construe Iowa statutes to provide Daniel Schmidt with the opportunity to create a family relationship. Viewing the matter as a contest between adults, the Schmidts and the DeBoers, the majority sees the Schmidts as having a better claim to the child than the DeBoers. The majority rules that the DeBoers have no standing in this Court, and cannot have a hearing on the merits whether their claim is better than the Schmidts.
There is a third party, the child. She, too, is a person with a liberty interest under the constitution. But, says the majority, that interest cannot be asserted by the DeBoers because they have no standing. It also rules that the child’s next friend cannot assert her interest because there cannot be *738any infringement of her independent liberty interest unless Daniel Schmidt is unfit.104
I would avoid reaching the question whether a child has a separate claim under the constitution until it is necessary to grapple with that momentous issue. That issue can be avoided by recognizing the child’s statutory right under the Child Custody Act to have the court "declare the inherent rights”105 of the child and by holding that the Iowa decree cannot be enforced in Michigan without a best interests hearing in the child’s home state, Michigan.
Since the majority has decided that a best interests hearing is not required by the Child Custody Act or the pkpa, the Court should consider and decide whether the child’s interests in protecting her family relationship with the DeBoers is as constitutionally protected as a liberty interest as Daniel Schmidt’s asserted constitutionally protected liberty interest in having an opportunity to establish a family relationship with the child. The Court should also consider and decide how those interests can be reconciled, either by a hearing concerning the best interests of the child, or by another standard or other means.
If the danger confronting this child were physical injury, no one would question her right to invoke judicial process to protect herself against such injury. There is little difference, when viewed from the child’s frame of reference, between a physical assault and a psychological assault.
The law provides compensation for mental distress in countless situations, and has recognized that persons who suffer psychological injury are *739entitled to the protection of the law. It is only because this child cannot speak for herself that adults can avert their eyes from the pain that she will suffer.
Ante, p 655.
Ante, pp 692-693.
Lemley v Barr, 176 W Va 378, 381; 343 SE2d 101 (1986).
The media reports that the Schmidts have said that they may or will call the child Jessica Schmidt.
This Court granted leave to appeal limited to the issues of jurisdiction and standing (No. 96366), and failure to state a claim on which relief may be granted (Nos. 96441, 96531, 96532). The decision of the circuit judge that it was in the child’s best interests that she remain with the DeBoers is not at issue in this appeal (see ante, p 660, n 9; p 661, ns 11-12) and remains subject to appellate review.
See part f, pp 711-713, n 51 et seq.
2 Clark, Domestic Relations, 2d ed, § 20.1, p 479.
Id., § 20.6, pp 530 ff.
Id., p 529.
Id., pp 532-533.
Professor Clark continues:
The most difficult cases are those in which a parent places his child temporarily in the custody of another person, perhaps with the understanding that the parent will resume custody when he is able to, or in which a parent places the child with prospective adoptive parents. The problems arise when the parent seeks to reclaim the child or to revoke his consent to adoption and the non-parent refuses to restore the child to the custody of the parent. In the temporary placement cases, if the child is not returned to the parent, the parent’s expectations will be frustrated thereby deepening the parent’s heartache and bitterness. And in the adoption cases the parent may have consented to the adoption under the stress of circumstances and may have tried to change her mind relatively soon after giving the consent. Due to these factors, the parent’s interest should perhaps be given greater weight than in the stepparent cases, and the child retained in the custody of the non-parent only where his welfare clearly dictates that result. Even in these circumstances, however, it should not be necessary to prove the parent unñt as a condition of awarding custody to the non-parent. If the child has been in the non-parent’s care for a substantial period of time, taking into account that time may have a different signiñcance for a child, and if the child is strongly attached to the non-parent emotionally and psychologically, so that the child will suffer serious harm by being shiñed *697to another’s custody, then the non-parent should be awarded custody. It should not matter for this purpose that delays in the process of litigation account for much of the time during which the child remains with the non-parent, since the effect on the child is the same regardless of the source of the delay. It must be conceded that some of the cases would strongly disagree with an award of custody to the non-parent in these circumstances, absent proof of unfitness, thereby exhibiting a startling lack of concern for the interests of the children. [Id., pp 534-535.]
The majority relies on Smith v Organization of Foster Families, 431 US 816, 843-844; 97 S Ct 2094; 53 L Ed 2d 14 (1977). In that case, the United States Supreme Court held that in a contest between foster parents and biological parents, that procedures enacted by New York respecting the removal of children from foster care were constitutional.
I see no need to decide whether the DeBoers, as prospective adoptive persons, have a constitutionally protected "liberty” interest in preservation of their family relationship with the child.
Rather, I would hold that Congress did not, in enacting the pkpa, designating the "home state” of the child as the state where a custody determination, enforceable under the pkpa, shall be made, intend to require the home state of the child, in this case Michigan, to enforce an Iowa decree made without consideration of, and other than on the basis of, the best interests of the child. •
The state laws, the Uniform Child Custody Jurisdiction Act, 9 ULA, part I, p 115 et seq.; MCL 600.651; MSA 27A.651, and the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq., were enacted to serve the same purpose.
Ante, p 656, ns 3-4 and accompanying text; ante, pp 692-693, following n 49.
And also the legislative history of the uccja on which the pkpa was modeled.
Ante, p 675, n 31.
Ante, p 675, n 31.
Ante, p 675, n 31.
Lemley did not consider the pkpa, but since the pkpa is modeled on the uccja, and the relevant language is identical, the analysis of the West Virginia Supreme Court is not to be faulted simply because it did not consider the pkpa separately from the uccja.
Thompson v Thompson, 484 US 174, 187; 108 S Ct 513; 98 L Ed 2d 512 (1988). The Court said: "ultimate review remains available in this Court for truly intractable jurisdictional deadlocks.”
The majority states:
For the first time at oral argument, the DeBoers asserted that the order was not made consistently with the pkpa. As they contended regarding the uccja, they think an order is not made consistently with the statute if a best interests of the child test is not used. [Ante, p 676.]
In stating that the DeBoers made that assertion for the first time at oral argument, the majority fails to mention that while there was some passing mention of the pkpa in the briefs, neither the DeBoers nor the Schmidts relied in their briefs on the pkpa. They relied, rather, on the uccja. It was this Court that has moved the focus from the uccja to the pkpa during questioning in oral argument.
Professor Clark states that some commentators still express concern regarding the constitutionality of the pkpa and the uccja in light of May v Anderson, 345 US 528; 73 S Ct 840; 97 L Ed 1121 (1953), but that the case law "now overwhelmingly assumes or proclaims the constitutionality of the uccja,” and that he is of the opinion that there is "increased likelihood, but not yet assurance, that the uccjá and the federal act may withstand constitutional attack.” Id., pocket part, § 15.41, p 63, adding insert for p 524 of the original text.
I Clark, Domestic Relations, § 13.5, p 825.
Ante, p 668, n 23 and accompanying text.
The "general purposes” of the pkpa are stated as follows:
(1) promote cooperation between State courts to the end that a determination of custody and visitation is rendered in the State which can best decide the case in the interest of the child;
(2) promote and expand the exchange of information and other forms of mutual assistance between States which are concerned with the same child;
(3) facilitate the enforcement of custody and visitation decrees of sister States;
(4) discourage continuing interstate controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
(5) avoid jurisdictional competition and conflict between State courts in matters of child custody and visitation which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being; and
*703(6) deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards. [Parental Kidnapping Prevention Act of 1980; PL 96-611, § 7(c), 94 Stat 3568. Emphasis added.]
The Congress finds that—
(4) among the results of those conditions and activities are the failure of the courts of such jurisdictions to give full faith and credit to the judicial proceedings of the other jurisdictions, the deprivation of rights of liberty and property without due process of law, burdens on commerce among such jurisdictions and with foreign nations, and harm to the welfare of children and their parents and other custodians. [Id., § 7(a). Emphasis added.]
PL 96-611, § 7(c)(4), 94 Stat 3568.
Id., § 7(C)(1).
Section (c) of the pkpa provides:
(c) 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; and
(2) one of the following conditions is met
(A) such State (i) is the home State of the child on the date of *704the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships .... [28 USC 1738A(c).]
28 USC 1738A(b)(4).
The term "person acting as a parent” is defined in the pkpa as meaning: "a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody.” "Physical custody” is there defined as meaning: "actual possession and control of a child.” 28 USC 1738A(b)(6), (7).
The DeBoers have had "actual possession and control” of the child since February 1991; they were "awarded custody by a court” and also qualify as persons acting as parents because they "claim a right *705to custody.” They are persons acting as parents within the meaning of the pkpa.
The prefatory note to the uccja, on which the pkpa was based, states that it "limits custody jurisdiction to the state where the child has his home or where there are other strong contacts with the child and his family. See Section 3.” 9 ULA 118. (Emphasis added.)
The commentary to § 3 states that the uccja establishes "two major bases for jurisdiction. In the first place, a court in the child’s home state has jurisdiction, and secondly, if there is no home state or the child and his family have equal or stronger ties with another state, a court in that state has jurisdiction.” 9 ULA 144.
The commentary continues that a "6-month period has been selected in order to have a definite and certain test which is at the same time based on a reasonable assumption of fact. [Citation omitted.] 'Most American children are integrated into an American community after living there six months; consequently this period of residence would seem to provide a reasonable criterion for identifying the established home.’ ” Id. (Emphasis added.)
28 USC 1738A(c)(2)(B). See n 28 for text.
The child has not been "physically present” in Iowa since February 1991. The child and the DeBoers, who are contestants — defined by the pkpa to mean a "person, including a parent, who claims a right to custody or visitation of a child” (28 USC 1738A[b][2]) — are physically present in Michigan and "have a significant connection” with Michigan "other than mere physical presence” in Michigan, and there is available in Michigan “substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.”
The significant connection test shows why Congress selected as the *706state where the child has resided with a parent or a person acting as a parent for more than six months — the home state — as the state that has jurisdiction with priority before any other state. The home state would ordinarily meet all the criteria of a state qualifying under the alternative; the child and a parent, or the child and a contestant, would necessarily have a significant connection, other than mere physical presence, with the home state, and there would there be available substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.
In contrast with a state qualifying under the alternative, it is presumed that it is in the best interests of the child for the home state to assume jurisdiction. Under the alternative, that presumption appears to be rebuttable because, under the alternative, there must be a finding that it is in the best interests of the child that the court of that state assume jurisdiction.
Ante, p 671.
Ante, p 671 (emphasis added); 28 USC 1738A(c).
At the time of commencement of both the termination and adoption proceedings, Iowa unquestionably had jurisdiction under its own laws and Iowa was unquestionably the home state of the child. Thus, the child custody determination made by the Iowa court was made consistently with the provisions of the pkpa. [Ante, p 671. Emphasis added.]
Ns 28-31 and accompanying text.
The Iowa proceedings commenced as adoption proceedings, and were transformed into parental rights termination proceedings after Daniel Schmidt intervened in the adoption proceedings. See part n.
The home state of a child less than six months old is the state in which the child "lived from birth” with a parent or a person acting as a parent. 28 USC 1738A(b)(4). The child in the instant case did not live from birth with either a parent or a person acting as a parent. See text following n 29.
Ante, p 676.
Comment to § 3, UCCJA, 9 ULA, part I, pp 144-145.
Id.
See n 37.
9 ULA, part I, p 145, quoted in text preceding n 40.
Commentary, 9 ULA, part I, p 145.
Uniform Child Custody Jurisdiction Act (1968 act), § 1(2), (3); commentary, 9 ULA, part I, pp 124, 143-144; MCL 600.651(l)(b), (c); MSA 27A.651(l)(b), (c). See ns 24 and 28 for pkpa text.
28 USC 1738A(c)(2)(B). See n 28 for text.
See n 24 for text.
94 Stat 3569, § 7(c)(5).
The pkpa and uccja were directed primarily to custody determinations that resolve disputes between parents, following divorce or separation. The well-established standard is the best interests of the child. See n 7.
Those acts are being relied on in custody disputes between parents and third parties, e.g., grandparents and prospective adoptive parents. The underlying criteria and theses of the pkpa must be given force and effect in these disputes, namely, that to be enforceable under the pkpa, a child custody determination must have been made in the child’s home state or alternatively in the state where the child has significant connections.
If the pkpa does not apply to adoption proceedings, then the majority errs in ruling that the pkpa requires enforcement of the Iowa decree.
2 Clark, Domestic Relations, 2d ed, § 21.3, p 596.
Id., p 598.
Id., p 595. (Emphasis added.)
Id., §21.3, p 596.
Id.
When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. [1 Restatement Judgments, 2d, § 27, p 250. Emphasis added.]
If the Iowa Supreme Court had granted the DeBoers’ petition seeking a rehearing and a determination of the child’s best interests, and Iowa courts had decided that the best interests of the child required that custody of the child be transferred to the Schmidts, such a determination would have been res judicata, and the Iowa decree would have been a judgment to which Michigan must accord full faith and credit. See Wright, Federal Courts, 4th ed, § 16, pp 84 if.
There was, however, no hearing in Iowa adjudicating the best interests of the child. That issue is not precluded under the doctrine of res judicata.
The pkpa modification provision reads as follows:
A court of a State may modify a determination of 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 USC 1738A(f).]
This section provides two bases for modification: if Iowa no longer has jurisdiction or if Iowa has declined to exercise jurisdiction.
Ante, pp 671-673.
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 USC 1738A(d).]
1738A(g).
1738A(f)(2).
The natural parents signed consent to adoption forms three days after the birth of their daughter in October 1978. The mother appeared one week after signing the forms at the Ohio welfare department and orally revoked her surrender of the child. The department did not inform the Ohio juvenile court of the revocation, and the court approved the surrender and transfer of custody to the adoptive parents. Approximately two months later, in December 1978, the mother commenced a habeas corpus proceeding to obtain custody of her child.
After litigation in the lower courts of Ohio completed its course, the matter was taken up by the Ohio Supreme Court. That court concluded that the natural mother had timely revoked her surrender of the child. The adoptive parents filed a motion for rehearing, asserting that the court should have required a best interests hearing — as the adoptive parents had requested in the lower courts in Ohio — before deciding whether to order the child returned to the biological mother. The Ohio Supreme Court denied the motion.
The adoptive parents, who had moved to New Jersey during the course of the proceedings in Ohio, commenced a custody action in New Jersey on September 29, 1980. The New Jersey court assumed jurisdiction, conducted a best interests hearing, and ruled that it was in the child’s best interests to remain with her adoptive parents. The biological mother appealed.
The New Jersey Supreme Court held:
To the extent jurisdiction continued in Ohio, if at all, the Ohio courts declined to exercise it by refusing to hold a best interest hearing. Because the child and adoptive parents resided in New Jersey for almost a year before commencing the New Jersey action, New Jersey was both the home state and the state with the most significant contacts to the controversy. Thus, under both the pkpa and uccja, New Jersey could modify the Ohio writ. [EEB, supra, p 611.]
The biological mother voided her consent to an adoption. After the Ohio Supreme Court affirmed the lower court orders voiding the adoption, the biological mother brought an action in a West Virginia circuit court to compel the adoptive parents to turn the child over to her. The West Virginia Supreme Court ultimately ordered the West Virginia circuit court to enforce the Ohio decision.
On petition for rehearing brought by the adoptive parents, the West Virginia Supreme Court reaffirmed its earlier decision to accord full faith and credit to the Ohio judgment setting aside the adoption, but concluded "[w]e are not convinced, however, that it is in the best interests of Ryan Barr that his physical custody be changed at this time.” The court remanded for proceedings in the circuit court to determine the child’s best interests. Lemley, supra, p 382. No Ohio court had conducted a best interest hearing.
The court noted that the adoptive parents had "used all possible legal stratagems to avoid an unfavorable ruling in the Ohio courts, but at no time did they resort to self-help by fleeing or by refusing to follow a lawful court order.” Id., p 385.
Lemley differs from EEB in that the parents in Lemley did not ask the Ohio courts to conduct a best interests hearing.
Id.
183 W Va 113; 394 SE2d 515 (1990). A Florida court had previously terminated the mother’s rights.
The child was born in July 1982. The parents separated in September 1983, and, after 1985, the father had virtually no communication with the child until he was contacted by the state regarding the termination proceedings brought against the mother in September 1987.
A Florida court gave the maternal grandmother temporary physical custody. The Florida court subsequently ruled in December 1988 that the father was a fit custodian and awarded him legal and physical custody. This decision, the Brandon LE court noted, was reached although the father had shown little interest in the child. 183 W Va 115.
The grandmother, who by that time had moved to West Virginia, refused to recognize the Florida custody decree and filed for a writ of habeas corpus in a West Virginia circuit court.
The West Virginia Supreme Court held that it had jurisdiction to *722modify the Florida custody decree and remanded to the circuit court to determine whether the child’s best interests required that the maternal grandmother retain custody.
Id., p 121.
See also Application of Felix, 116 Misc 2d 300; 455 NYS2d 234 (1982).
See Van Houten v Van Houten, 156 AD2d 694; 549 NYS2d 452 (1989). A Florida court had awarded custody of the parties’ two-year-old daughter to the mother in July, 1981. Shortly after the decree, the father snatched the child. For the next eight years, the mother attempted unsuccessfully to find her daughter. Upon tracking her down in New York, the mother filed a petition in New York, seeking enforcement of the Florida decree. The father petitioned for modification of the Florida decree, claiming that it was in the best interests of his daughter, who had been living with him for eight years, that custody be awarded to him.
The court wrote that even though state law forbids modification of a custody decree in child snatching cases: "We conclude that this is one of those rare instances where this imperative must be subordinated to the best interests of the child, and that the courts of this State should assume jurisdiction over the dispute.”
*723In Owens, by and through, Mosley v Huffman, 481 So 2d 231 (Miss, 1985), the maternal grandmother challenged Mississippi’s jurisdiction over a custody dispute. The grandmother had snatched the child, Christeen, from the child’s mother, Huffman. The grandmother procured a custody decision in her favor in Texas.
The mother tracked the grandmother down after three years, but then stipulated to the grandmother’s custody in an Arizona court, apparently because the mother’s attorneys had misinformed her that if she contested custody she would never see her child again. When her daughter came to visit her in Mississippi, pursuant to the Arizona custody agreement, the mother filed for custody in Mississippi.
The Mississippi court assumed jurisdiction despite the Texas and Arizona decrees. The Mississippi court said:
We are not concerned with whether Mrs. Huffman as an individual might be precluded from relief, but whether her child is barred from any relief by a Mississippi court. Considerations of fairness and equity would impel us to say that the Chancery Court of Clay County should be able to proceed, because in the entire pathetic history of this child, the first opportunity she has ever had for a full-blown hearing for her own best interest is in that court. [Id., p 238.]
Ante, p 670.
Ante, p 670, n 24.
28 use 1738A(c). See n 28 for text.
See n 20.
441 Mich 23; 490 NW2d 568 (1992).
Ante, pp 675-682.
Ante, p 669, n 23.
The UCCJA, §§2(5) and 3(a)(1), (2), contains these same tests. 9 ULA, part I, pp 124,143-144.
28 USC 1738A(b)(4).
28 USC 1738A(b)(6).
28 USC 1738A(c)(2)(B)(ii).
28 USC 1738A(b)(2).
Ante, p 683.
MCL 722.21 et seq.; MSA 25.312(1) et seq.
Ante, p 669, n 23.
Bowie, supra, p 45.
Ante, p 678.
The Child Custody Act provides:
When the dispute is between the parents, between agencies or between third persons the best interests of the child shall control. When the dispute is between the parent or parents and an agency or a third person, it is presumed that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence. [Child Custody Act, MCL 722.25; MSA 25.312(5).]
The Adoption Code provides:
In an adoption proceeding, the court shall direct a full investigation by an employee or agent of the court, a child placing agency, or the department. The following shall be considered in the investigation:
(a) The best interests of the adoptee. [MCL 710.46(l)(a); MSA 27.3178(555.46)(l)(a).]
The Probate Code provides that in foster care permanency planning decisions:
If the court determines at a permanency planning hearing that the child should not be returned to his or her parent, the agency shall initiate proceedings to terminate parental rights to the child not later than 42 days after the permanency planning hearing, unless the agency demonstrates to the court that initiating the termination of parental rights to the child is clearly not in the child’s best interests. [MCL 712A.19a(5); MSA 27.3178(598.19a)(5).]
MCL 710.39; MSA 27.3178(555.39).
1974 PA 296, MCL 710.21 et seq.; MSA 27.3178(555.21) et seq.
This concept was in the 1974 act. The language was modified by subsequent legislation, but the meaning is essentially the same. Subsequent legislation also added a definition of "best interests”:
*730(b) "Best interests of the adoptee” or "best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court to be applied to give the adoptee permanence at the earliest possible date:
(i) The love, affection, and other emotional ties existing between the adopting person or persons or the putative father, and the adoptee.
(ii) The capacity and disposition of the adopting person or persons or the putative father to give the adoptee love, affecr tion, and guidance, and to educate and create a milieu that fosters the religion, racial identity, and culture of the adoptee.
(iii) The capacity and disposition of the adopting person or persons or the putative father to provide the adoptee with food, clothing, education, permanence, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(iv) The length of time the adoptee has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(v) The permanence as a family unit of the proposed adoptive home, or the home of the putative father.
(vi) The moral fitness of the adopting person or persons or of the putative father.
(vii) The mental and physical health of the adopting person or persons or of the putative father, and of the adoptee.
(viii) The home, school, and community record of the adoptee.
(ix) The reasonable preference of the adoptee, if the adoptee is 14 years of age or less and if the court deems the adoptee to be of sufficient age to express a preference.
(x) The ability and willingness of the adopting person or persons to adopt the adoptee’s siblings.
(xi) Any other factor considered by the court to be relevant to a particular adoption proceeding, or to a putative father’s request for child custody. [MCL 710.22; MSA 27.3178(555.22).]
The majority’s comment (ante, pp 677-678) on subsection (2) ignores the difference between a decision recognizing parental rights and a decision awarding custody.
The Iowa Supreme Court said:
Daniel has had a poor performance record as a parent. He fathered two children prior to this child, a son, age fourteen, and a daughter born out of wedlock, now age twelve. The record shows that Daniel has largely failed to support these children financially and has failed to maintain meaningful contact with either of them.
His opinion was as follows:
I respectfully dissent.
The evidence is sufficient to show abandonment of the baby by Daniel. The record shows he has previously failed to raise or support his other two children. He quit supporting his son, born in 1976, after two years. From 1978 to 1990 he saw him three times. He has another daughter whom he has never seen and has failed to support. He stated he just never took any interest in her. In every meaningful way, he abandoned them.
Daniel knew that Cara was pregnant in December 1990. He saw her in the building where they worked for the same employer. The child was born in February 1991. Having knowledge of the facts that support the likelihood that he was the biological father, nevertheless, he did nothing to protect his rights. The mother, Cara, who knew better than anyone who the father was, named Scott as the father. The legal proceedings logically and reasonably were based on these representations. The termination of parental rights as known to exist at the time were legally completed and an adoption process was commenced.
Daniel’s sudden desire to assume parental responsibilities is a late claim to assumed rights that he forfeited by his indifferent conduct to the fate of Cara and her child. The specter of newly named genetic fathers, upsetting adoptions, perhaps years later, is an unconscionable result. Such a consequence is not driven by the language of our statutes, due process concerns or the facts of this case.
I would remand for termination of Daniel’s parental rights *733based on abandonment and denial of Cara’s motions. The intervention petition of Daniel in the adoption case should be dismissed on remand and the adoption proceed.
Ante, pp 692-693.
Ante, pp 655-656.
This was not decided on remand. Instead of deciding that question, it was decided on remand from the Iowa Supreme Court that Cara Schmidt’s parental rights should be restored because Daniel Schmidt’s rights had been recognized and they had married.
Recording statutes require persons claiming an interest in real property to provide notice of their interest — by a proper recording — or take subject to the interest of third persons who purchase in good faith and without notice of the prior interest. Similarly, the Uniform Commercial Code, e.g., §§ 9-301, 9-302, in cases involving personal property, requires secured creditors to give proper notice or to take subject to the rights of bona fide purchasers.
The law thus requires a person claiming an interest in property to assert it in a way that is plain and simple for the rest of the world to ascertain.
The DeBoers were misled by Cara Schmidt’s fraudulent warranty. She identified to the DeBoers as the father of the child a person whom she knew was not the father. She allowed the DeBoers to take custody of the child knowing that the DeBoers, relying on her misrepresentation, had obtained a waiver of parental rights from the wrong person.
Daniel Schmidt, the real father — and thus the true owner for ' purposes of this property law analysis — enabled Cara Schmidt to perpetrate her fraud.
Under another property law analysis, estoppel, the law again places the loss on the least cost risk avoider, that is, the person who was in the best position to avoid the loss in the first place.
Under the doctrine of voidable title (see, e.g., UCC § 2-403), the true owner enables another to appear to be the true owner with the result that the rights of the true owner are subordinated to those of a bona fide purchaser who takes without actual notice of the prior interest. Daniel Schmidt enabled Cara Schmidt to appear to be the true owner of the child because he took no steps to assert his rights. He gave Cara Schmidt a voidable title, which, in the hands of an innocent purchaser, ripens into full title good against the world including the true owner.
The Court reversed an award of temporary custody to the child’s grandparents, despite a finding that this would be in the child’s best interests. The Court held that the circuit court lacks authority to enter an order granting custody to a third party over the parents’ objection where the child is living with the parents, no divorce or separate maintenance proceedings have been instituted, and there has been no finding of parental unfitness.
The Court held that third parties do not have standing to petition for custody on the basis that the child resides or has resided with the third party, unless they are guardians or limited guardians or have a substantive right to custody.
Senate substitute for HB 4064, passed Senate June 10, 1993.
See, e.g., In re Ryman, 394 Mich 637; 232 NW2d 178 (1975); In re Seitz, 441 Mich 590; 495 NW2d 559 (1993).
Michael H v Gerald D, 491 US 110; 109 S Ct 2333; 105 L Ed 2d 91 (1989); Stanley v Illinois, 405 US 645; 92 S Ct 1208; 31 L Ed 2d 551 (1972); Quilloin v Walcott, 434 US 246; 98 S Ct 549; 54 L Ed 2d 511 (1978); Caban v Mohammed, 441 US 380; 99 S Ct 1760; 60 L Ed 2d 297 (1979); Lehr v Robertson, 463 US 248; 103 S Ct 2985; 77 L Ed 2d 614 (1983).
Cf. Reno v Flores, 507 US —; 113 S Ct 1439; 123 L Ed 2d 1 (1993).
Ante, p 657.
MCL 722.24; MSA 25.312(4).