concurring:

My colleagues hold that the California courts have jurisdiction, and the District of Columbia courts do not, because Ms. Rogers won the race to the courthouse door by one day. I agree that the PKPA so provides, but I believe that we should decide the issue on broader and less fortuitous grounds than that.

In interstate custody litigation, the determination of which court decides is often of paramount importance. In the present case, for example, Ms. Rogers lives in California and the Platts are residents of the District of Columbia. When the dispute broke out, at least one side was certain to be required to engage in protracted litigation three thousand miles from home.1 Where a party cannot afford to do this— and it appears that Ms. Rogers would not be able to afford litigation in the District *1042but for the willingness of counsel apparently to represent her pro bono,2 an opportunity not available to many comparably situated litigants — that party is likely to lose his or her claim, no matter how meritorious it may be. Accordingly, when we decide where the case is to be tried, we may well be preordaining its result on the merits, perhaps by default. In theory, the choice is simply which of two impartial judicial systems will decide the case. In the real world, especially for a non-affluent party, the opportunity to litigate the case meaningfully may be at stake.

Under these circumstances, and where the issue relates to a right as basic as a mother’s opportunity to be a parent to her child, I think it is the duty of courts to guard against attempts by parties to create jurisdictional facts through wrongful conduct and then to confront the court with a fait accompli. A party should not be permitted to use improper or unlawful means to create or enlarge the child’s connections with the party’s own state, and to reduce or destroy the child’s ties to the adversary’s state, and then be heard to claim that the jurisdiction of the wrongdoing party’s choice is the logical and appropriate one in which to litigate. To allow a contender for custody to do this would contravene the wise policy

that no man may take advantage of his own wrong. Deeply rooted in our jurisprudence, this principle has been applied in many diverse classes of cases by both law and equity courts.

Glus v. Brooklyn Eastern Terminal, 359 U.S. 231, 232-33, 79 S.Ct. 760, 762, 3 L.Ed.2d 770 (1959).

Significantly, one of the stated purposes of the PKPA is to “deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards.” PKPA § 7(c)(6), 94 Stat. 3566, 3569 (1980) (reprinted at 28 U.S.C. § 1738A note (1982)).3 Courts have long recognized the importance of discouraging

the resort to self-help which in the custody dispute is an irresponsible and barbaric remedy. Not only does self-help make the eventual placement of the children an arbitrary consequence, but it breeds reprisal in kind.

Application of Lang, 9 A.D.2d 401, 408-09, 193 N.Y.S.2d 763, 770 (1st Dept. 1959). A major goal of the PKPA was to provide protection for the left-behind parent. See Rogers v. Platt, 641 F.Supp. 381, 388 (D.D. C. 1986), rev’d on other grounds, 259 U.S. App.D.C. 154, 814 F.2d 683 (1987); 126 Cong.Rec. 22,807 (1980) (Senator Wallop). Under the UCCJA, too,

the days of spiriting children across state lines to litigate custody are over. After nearly fifty years of living with the practice and the untold misery it brought, the separate states have finally enacted a law with teeth.

Yacov Y. v. Margaret Y., 112 Misc.2d 623, 624, 447 N.Y.S.2d 644, 645 (1982). “Since the purpose of the [UCCJA] is to deter abductions and other unlawful conduct, it is held that a claimant cannot be permitted to rely on his or her wrongful conduct in order to establish jurisdiction in a foreign court.” Rogers v. Platt, 199 Cal.App.3d 1204, 245 Cal.Rptr. 532, 539 (1988) {Platt II). Both the PKPA and the UCCJA should be construed with these considerations in mind.

The foregoing principles apply even in a contest between two parents, each of whom has a colorable claim to custody of the child.4 The present case, however, *1043presents a situation in which the interdiction of self-help and “fails accomplis” takes on an even greater urgency. As the California Court of Appeal correctly stated, the Platts do not have even a colorable claim that they had the right to the custody of Ms. Rogers’ son. Platt II, supra, 199 Cal.App.3d at 1212-13, 245 Cal.Rptr. at 537. As Justice Sparks wrote for that court in a well-reasoned opinion, “there is simply no provision in law by which an unrelated person may unilaterally take custody of a child in derogation of the right to custody of the child’s natural parent.” Id. at 1213, 245 Cal.Rptr. at 537-38.

To be sure, the Platts did not kidnap the child. I fully agree with the California court, however — indeed, the point seems to me unanswerable — that

defendants’ temporary physical custody was permissive, but their retention of the child became unlawful when they refused to return the child upon plaintiff’s request.

Id. at 1213, 245 Cal.Rptr. at 538. Although Judge Hess made no explicit finding that the Platts’ conduct was wrongful,5 his underlying evidentiary findings to the effect that Ms. Rogers promptly asked for the return of her son and that the Platts refused to comply establish beyond peradventure that there existed no plausible legal or moral6 basis for the retention of Ms. Rogers’ son in Washington, D.C. without her consent.7

Ms. Rogers filed her action in California a day before the Platts filed in the District. Moreover, in California, a case is deemed pending once filed. My colleagues conclude, correctly in my view, that on this state of facts the California court had jurisdiction, and that our trial court therefore had no authority under the PKPA to proceed with the case. Suppose, however, that the Platts had filed a day earlier in the District, or that under California law a case became “pending” only after the defendants had been served and the Platts had successfully evaded service. Should this court then say that because the child has been brought to the District, and because connections with this jurisdiction have been created for him, the case must be tried in the wrongdoers’ lair, three thousand miles from the home of the child’s mother? I find such a conclusion so inequitable as to be beyond endurance. In cases such as this, where the Platts’ basis for retaining control of the child after the mother demanded his return is completely spurious, equitable considerations require that California be viewed as having no less connection with the child, and the District as having no more, than would have been the case but for the Platts’ wrongful retention of custody.8

If the Platts had acted lawfully and returned Ms. Rogers’ son to her within a reasonable time after her demand, the boy would have spent almost no time in the District and almost all of his time in California. California would obviously have had jurisdiction and the District would not, no matter who filed first where, and irre*1044spective of what steps were needed to make a case “pending.”

To permit jurisdictional “facts” created by wrongful conduct to control or affect the determination where the case is to be tried would have unjust and oppressive consequences. If the Platts can create jurisdiction in the District by keeping the boy here without authorization, then why cannot a kidnapper do the same? Moreover, if persons in the position of the Platts are permitted to enhance their opportunity to try the case in the District (and potentially win by default because of the adversary’s limited means) by not returning the child to the mother when the mother makes a lawful demand that they do so, it becomes far more profitable for them (in terms of the opportunity to litigate here and, ultimately, to retain the child) to do wrong rather than right. The temptation to hold on, to delay, and to evade, in an attempt to convert wishful thinking into reality, may become well-nigh irresistible. Here the litigation has dragged on for four years, the child has been with the Platts, and ties have been forged. The potential trauma for the boy if he is returned to his mother is far greater now than it would have been if the Platts had done the right thing and returned him to her when he was only a few weeks old. I cannot believe that the PKPA and the UCCJA were intended to countenance a scenario under which, to quote Leo (“the Lip”) Durocher, “nice guys finish last."

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All of the members of the division agree that the decision as to who shall have custody of the child must be made by the courts of California. I do not envy them that responsibility. This is a case in which, as a result of the Platts’ wrongful acts, the best interests of this child may not coincide with the best interests of children generally. If courts countenance creation of 'a fait accompli through self-help, they encourage the unilateral snatching or retention of innocent children. When this occurs, it is those children who suffer most.

What is not in the interest of any child is to have incompatible decrees in two jurisdictions with respect to his or her custody. That was the situation for Ms. Rogers’ son prior to this decision. The California courts had decreed that Ms. Rogers is entitled to temporary custody. Our trial court ruled that the Platts could adopt him, even though the California courts had held that they had wrongfully withheld him from the mother.

Such a situation is completely untenable. For one thing, it would as a practical matter frustrate any prospect that the child, if awarded to the Platts, could visit with Ms. Rogers in California. As I once wrote in an earlier judicial incarnation, in refusing to exercise jurisdiction where a mother had asked me to award her custody of her two children in contravention of an Indiana decree in favor of the father:

One need only consider the probable consequences to the Davis children if this Court had purported to award custody to the mother. If the mother had prevailed in the District of Columbia, then the courts of the two jurisdictions would have been in direct conflict as to which parent is entitled to custody of the children. The mother would then have confronted a situation in which, if she allowed the children to visit Indiana, the courts of that state would not recognize her custody and would not require the father to return the children to her. Accordingly, there would be a compelling incentive for the mother to prevent the children from ever going to Indiana or seeing the father. If, despite that inhibition, the children ever were permitted to visit the father in Indiana, then he would have every reason to prevent them from returning to Washington, for the courts of this jurisdiction would not recognize his right to custody. The prospects of the children retaining contacts with both parents — and such contacts are in almost all cases in the best interest of the children — would be bleak indeed.

Hamanaka v. Davis, 111 Daily Wash. L. Rptr. 9, 13 (D.C.Super.Ct. 1982).9

*1045In this case, the California courts have jurisdiction. The only authority which devolves upon the Superior Court of the District of Columbia relates to the enforcement of the California decree, as prayed for in Ms. Rogers’ counterclaim. See 28 U.S.C. § 1788A(a), (f) (1988 Supp.); D.C. Code § 16-4513 (1989). I hope that this will be addressed forthwith, before new realities can be created to make the achievement of justice even more difficult.

The issue in this case is whether the courts of the District of Columbia or of California are to determine the future of a four-year-old boy born of a mother in California but who has resided since he was two days old with a married couple in the District, despite the California mother’s repeated calls for his return to her. Couched in the language of the law, the issue we must decide is whether the District of Columbia courts have jurisdiction under a federal statute, the Parental Kidnapping Prevention Act of 1980 (the “PKPA” or the “Act”), 28 U.S.C. § 1738A (1982), to entertain a petition for adoption of a child in the physical custody of a D.C. couple when the natural mother has previously sought return of the child by initiating a proceeding for a custody determination in the courts of California. We hold that California has exclusive jurisdiction under the PKPA and accordingly reverse the trial court’s grant of adoption.

I

The largely undisputed facts in this case have been set forth in no fewer than four published opinions.1 As pertinent to our disposition here, they may be summarized as follows. On June 14, 1985, Marita Rogers, a resident of California, gave birth to a boy at Sutter Memorial Hospital in Sacramento, California. She had previously spoken to her obstetrician about the possibility of placing the child for adoption, since she already had one child who was mentally retarded and required much attention. The obstetrician had thereupon been in contact with Alan and Kathy Platt, residents of the District. Within hours of delivery, Ms. Rogers signed a “release,” in which she agreed to allow the hospital to release her child to the Platts, while expressly retaining all parental, rights.2 The Platts arrived *1035in California on June 15. Mr. Platt added his signature to the release form that Ms. Rogers had signed, acknowledging his understanding of its terms.3 Furthermore, Ms. Rogers’ obstetrician and a hospital social worker carefully explained the terms of the release to the Platts. That day, the hospital released the child to them and the next day the Platts and the child flew back to the District, where they have lived together ever since.

On June 18, 1985, Ms. Rogers informed her obstetrician that she had changed her mind and now wanted her child back. The obstetrician then telephoned thé Platts and told them that Ms. Rogers wanted her child back. Ms. Rogers also told the hospital social worker that she had changed her mind and successfully prevailed on a lawyer with whom she had had dealings to telephone the Platts to communicate the same information to them. The Platts did not comply with Ms. Rogers’ attempts to have her child returned.4

On November 21, 1985, Ms. Rogers commenced a proceeding in the Superior Court of California in Sacramento to obtain custody of her child.5 The Platts followed suit the next day by filing a petition for appointment of a guardian in the Superior Court of the District of Columbia.6

On March 21, 1986, the D.C. Superior Court concluded that the District of Columbia was the child’s “home State” for purposes of the federal Parental Kidnapping Prevention Act and that the D.C. Superior Court therefore had exclusive jurisdiction to entertain the Platts’ petition. Platt I, supra note 1, 114 W.L.R. at 808. On May 22, 1986, the California Superior Court concluded that California, not the District of Columbia, was the child’s “home State” and that exclusive jurisdiction under the PKPA was therefore in the California courts. The California court awarded temporary custody to appellant on May 22, 1986. Although adopting different reason*1036ing,7 the California Court of Appeal affirmed the custody decision on March 29, 1988. Platt II, supra note 1. Meanwhile, appellant had filed a counterclaim on November 10, 1987 to enforce the California decree in the D.C. Superior Court, as well as a counterclaim for custody and a petition for a writ of habeas corpus.

After a delay caused by abortive litigation in the federal courts here,8 the Platts’ adoption petition went on to trial in the D.C. Superior Court on April 6-12, 1988. The court granted the Platts’ adoption petition and denied enforcement of Ms. Rogers’ counterclaims. The court pretermitted the question of whether the Platts had wrongfully retained custody of the child, reasoning that although Ms. Rogers had sought return of her child and the Platts’ right to custody was limited from the start by the clear language of the release form, it was now in the child’s best interests to remain with his new family, the Platts.9 It is from this order that the current appeal is taken. II

The controlling statute here is the Parental Kidnapping Prevention Act,10 enacted by Congress in 1980 to deal with the recurring problem of interstate controversies over child custody decisions. The Act establishes criteria to determine which state shall have jurisdiction over custody disputes where more than one state can assert an interest in the matter. Thus, the Act establishes the conditions under which one state must give full faith and credit to *1037the custody decrees of another state.11 In addition, the Act establishes the conditions under which a state must refrain from entertaining a custody proceeding when a proceeding in the same matter is pending in another state:

A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.

28 U.S.C. § 1738A(g) (1982) (hereinafter, “subsection (g)” or “subs, (g)”).12 It is this subsection that controls the dispute before us. If at the time the first proceeding was filed here in the District, there was already pending in California a proceeding where the court was “exercising jurisdiction consistently with the provisions of this section,” then the District was precluded from proceeding with any action here.13

A court exercises jurisdiction “consistently with the provisions” of the Act if the court has jurisdiction under the law of the state in which it sits, id. § 1738A(c)(l), and if one of several conditions is met:

(A) such State (i) is the home State of the child on the date of the 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 subpara-graph (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 other than mere physical presence in 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....

Id. § 1738A(c)(2).

The Act defines “home State” as:

[Clause 1:] the 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 [Clause 2:] 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. Periods of temporary absence of any of such persons are counted as part of the six-month or other period[.]

Id. § 1738A(b)(4).

Thus, under the structure of the Act, if any state qualifies as the “home State,” that state has exclusive jurisdiction over custody matters. Otherwise, a state that *1038meets the qualifications of subsection (B)— in particular, the “significant connection” requirement — has exclusive jurisdiction as long as the litigation before it commenced prior to litigation in any other state also meeting the requirements of subsection (B).

We do not think14 the District of Columbia could be found to be the child’s “home State” in November 1985, when the actions were commenced in California and D.C.15 The plain language of the definition of “home State” does not allow for this conclusion. The child did not “live from birth” in the District. He lived in the District only from two days after birth. Hence, the District of Columbia cannot be seen as the “home State.” 16 Whether California was the “home State” is more problematic. Indeed, the California Court of Appeal found that California was not the “home State.” Platt II, supra note 1, 199 Cal.App.3d at 1214, 245 Cal.Rptr. at 538. We need not reach that issue, however, since we conclude, as did the California Court of Appeal, that in any event California met the requirements of subsection (B), to which we now turn.

The PKPA contemplates the possibility that a child may have no “home State,” subs. (c)(2)(B)(i),17 and provides in this situation for an alternative basis on which a court may assert jurisdiction. Subsection (c)(2)(B)(ii) allows for an assertion of jurisdiction when a court has jurisdiction under its state’s law and when such an exercise of jurisdiction is

in the best interest of the child because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in 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[18]

California met the requirements of this provision on the relevant date of November 21, 198519 Subsection *1039(c)(2)(B)(ii)(I) requires that on the date when Ms. Rogers commenced her action in the California court, “the child and his parents, or the child and at least one contestant, have a significant connection with” California. In this case, there is no question that the child’s mother, Ms. Rogers, had a significant connection with California since she was then and remains now a resident of that state. The only real issue is whether the child had such a connection.20 The child was born in California, in a California hospital. He remained there for the first two days of his life. The child thereafter remained significantly connected with California since it was in California that his mother and the Platts signed a contractual agreement, governed by California law, establishing the terms of his removal to and continued presence in the District. The rights of the Platts to bring him to the District initially and to continue to hold him here, if legitimate at all, were founded on that agreement. The terms of the agreement made clear that the child’s legal custody remained with his mother, a California resident. See supra note 2. The agreement also provided that adoption proceedings should be filed within 30 days, presumably in California, or the California Department of Social Services would make an investigation. Supra note 2. The child remained yet further connected to California by virtue of the presence there of a sibling. We conclude21 that even assuming no one of these ties to California would by itself suffice, taken as a whole22 they constitute a “significant connection.”23

*1040We reject the argument made by appel-lee at oral argument and implicitly accepted by the trial court as well that for purposes of “significant connection” analysis the relevant time for measuring the connection is that of our present review or some time other than that of appellant’s initial filing. Jurisdiction is an initial and key element to be determined in any judicial proceeding and to make it a shifting, chameleon-like issue would be counter not only to normal legal principles but also to the structure of the Act. Thus, in subsection (A), “home State” status is determined as of the “commencement of the proceeding,” see supra note 15 and accompanying text, and we see no reason why the same should not apply to subsection (B). Furthermore, we cannot believe that the Act contemplates an approach that would enable a contesting party, particularly where wrongdoing is involved, to build up connection time in his or her state, thereby frustrating one of Congress’ purposes in enacting the PKPA — to “deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards.” 28 U.S.C. § 1738A note § 7(c)(6) (1982) (“Congressional Findings and Declaration of Purposes for Parental Kidnapping Prevention Act of 1980”).

In sum, California met the requirements of 28 U.S.C. § 1738A(c)(2)(B) on November 21, 1985, when a proceeding24 was commenced in its courts. Consequently, subsection (g) required that the D.C. Superior Court refrain from entertaining the Platts’ petitions, the first of which was filed on November 22, 1985,25 a day after Ms. Rog*1041ers had filed her petition in California.26

We are not for a moment unmindful of the key figure in this woeful drama, the child himself. But it must be remembered that the decision before us is not what is to be the fate of this child but rather which court in our federal system is to have the ultimate responsibility for making that determination. The decree of the California court awarded only temporary custody based on a state of facts now over three and one-half years stale. We cannot and do not predict what the courts of that state will do in light of present realities. We simply hold that it is for them to rule.

The order granting the adoption is reversed and the case remanded to the trial court for further proceedings consistent with this opinion.27

So ordered.

concurring:

I join Judge Steadman’s opinion for the court, which properly analyzes and applies a statute designed to prevent just the sort of jurisdictional stalemate that has marked this case until now. The issue of permanent custody must be decided by the California courts. Like Judge Schwelb, I do not envy them that task; the wisdom of ten Solomons will not yield the “right” decision as to who shall parent this 4 ¥2 year old child into adulthood. I write separately only to express my hope that the further proceedings will not be influenced by the fact that “the best interests of this child may not coincide with the best interests of children generally.” Supra at 1044 (Schwelb, J., concurring). That is, whatever wrongdoing the Platts have engaged in by holding fast to a child originally entrusted to them lawfully has been accounted for by our jurisdictional decision interpreting the statute consistently with its terms and its deterrent purpose.* I believe that on the issue of permanent custody, the best interests of this child should be the exclusive focus; it is unnecessary to jeopardize the child’s future in order to teach the Platts (and others similarly tempted) a further lesson. For me, the dominant fact is no longer the behavior of the Platts, inexcusable as that may have been, but the evidence credited by Judge Hess that removing this child from the only parents it has known may have a devastating effect on its emotional development. Indeed, the one heroic moment in this litigation has been the recognition of this possibility by the natural mother and her consequent admission in the hearing below that if it were truly in the child’s best interests to remain where he is, she would not oppose adoption. The character revealed by that admission only confirms the insolubility of the custody decision.