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Custody determinations traditionally have comprised a subcategory of litigation under the Pennoyer v. Neff exception for proceedings relating to status. Of course, states have the power to decide the status of their domiciliaries. It was natural, therefore, for the courts and scholars of the nineteenth and early twentieth centuries to consider domicile the sole basis of jurisdiction in custody matters. Gradually, judges and scholars began to challenge the notion that domicile was the sole basis and courts began to apply other bases, such as the child's presence in the state or personal jurisdiction over both parents. One commentator suggests that the “true rule” with regard to jurisdiction “is the court's discretion exclusively governed by the child's welfare.”

In 1953, the United States Supreme Court announced that a court was required by the Constitution to have personal jurisdiction over the defendant in a custody action. Until 1953, state courts were virtually free of federal limits to their power to set their own jurisdictional standards in custody cases. Since that date, the Supreme Court has not deigned to stir again the muddy waters of child custody jurisdiction, to impose jurisdictional limitations or to consider whether or not the Full Faith and Credit Clause applies to custody cases.

In this atmosphere of virtually no jurisdictional limitations, state courts were aggressive in asserting initial jurisdiction in custody cases without the presence of domicile. Courts commonly asserted jurisdiction in cases in which it was clear that courts in other jurisdictions potentially had jurisdiction and an interest in asserting it. Some even asserted jurisdiction in those cases in which a court in another state had already asserted its jurisdiction. In addition, courts that issued custody decrees invariably retained jurisdiction over the subject matter in order to be able to modify the decree if circumstances changed and so required. The Full Faith and Credit Clause has been held to require only the same deference and same effect to a judgment of a sister state that a state gives to its own decrees or judgments. Courts of states which had not rendered the initial custody judgment thus felt justified in asserting jurisdiction in order to modify a sister state's custody decree. In 1947, the United States Supreme Court affirmed the notion that a custody judgment from a sister state is not due any more final or conclusive effect than it has in the law of the sister state; it is modifiable for changed circumstances. Inconsistencies were the inevitable result of courts' attempts to struggle with staid notions of jurisdiction in an era of tremendous mobility in the face of the important need to protect children.

A child's role in the custody adjudication process is significantly different from the role of a party to the lawsuit. Generally, the child plays a passive role, in contrast to the active role played by each of the adversaries. Nevertheless, the child always has a great interest in the outcome of the custody litigation, given the child's peculiar vulnerability and the fact that his or her fate is ultimately connected with the fortunes of the litigants. Because of the child's vulnerable role in a custody dispute, and because of his or her lack of freedom of choice or movement, the rules traditionally applicable to jurisdiction in other cases are not appropriate in custody cases. Difficult cases are, of course, likely, whatever system is adopted.

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35 Emory L.J. 291 (1986).