Sometimes in child custody disputes, feelings of anger or desperation lead a parent to run away with the children, in violation of a child custody order. Under both state and federal law, it is illegal to remove a child from his/her custodial parent or legal guardian. Under California's penal code, for example, child abduction is considered a crime against the custodial parent.
This article discusses federal and international laws that come into play in child abduction cases.
Interstate Child Abduction
In a situation of parental kidnapping – yes, a parent can be charged with kidnapping their own child – law enforcement is often the best remedy available. Parents are also free to hire their own private investigator.
States have their own kidnapping laws, which may cover parental child abduction. In 2003, President George W. Bush signed the PROTECT Act into law, establishing the AMBER Alert system. Every state participates in the AMBER Alert system. It notifies law enforcement and the public when a child has been abducted.
To use the AMBER Alert system, the child must be 17 or younger and there must be a serious risk to the child of injury or death. Not every parental abduction case would qualify.
Legislatively, there are a number of federal laws that deter parental abduction of children. Before the Uniform Child Custody Jurisdiction Act (UCCJA) of 1968, parents could simply take their child to another state if they thought they had a better chance of getting custody in court. The UCCJA provides an interstate solution to remove that legal incentive for parental child abduction.
In 1980, the Parental Kidnapping Prevention Act (28 U.S.C. § 1738A) was passed to resolve jurisdictional conflicts in child custody cases. The PKPA promotes cooperation between states to make it easier to secure the return of abducted children.
PKPA is a federal law, so it trumps state law when there is a conflict between states. The Act tells state courts that they must enforce the child custody determination pending or already in place in the child's home state/tribal court. The home state court has “preferred jurisdiction."
The child's home state is where the child lived for at least 6 months before a custody action was filed. That state court retains jurisdiction of the child custody case as long as at least one parent or the child lives there. That court can order the return of the child to the custodial parent.
If the child did not have a home state, a court in a state where the child and at least one parent have a significant connection can take jurisdiction. If a child is in danger or has been abandoned, the local court may take emergency jurisdiction. If a parent fleeing domestic violence has taken the children across state lines, that would trigger emergency jurisdiction in the receiving state. If no court has jurisdiction, the nearest court can take jurisdiction as “the most appropriate forum."
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been adopted by 49 states. It ensures interstate enforceability of child custody orders. It resolved conflicts between the PKPA and the UCCJA. It added protection for domestic violence victims who fled to another state for safe haven.
Parental Child Abduction: International Disputes
The International Parental Kidnapping Crime Act (IPKCA) made international kidnapping a criminal offense in 1993. A parent cannot remove or attempt to remove a child from the U.S. in order to obstruct another person's custodial rights. The FBI investigates such cases.
There are two legal remedies that apply to international child abduction cases. The International Child Abduction Remedies Act (ICARA) and the Hague Convention on the Civil Aspects of International Child Abduction. ICARA established procedures to implement the Hague Convention. The Hague Convention works to return the child to their state of residence if they have been wrongly removed. It doesn't settle child custody disputes. It seeks to return the situation to the status quo before the child abduction occurred.
If the parent had fled to a country that has agreed to cooperate with the U.S. as part of an international treaty, a combination of legal and political pressure can be applied. A parent can petition a U.S. court to initiate judicial proceedings under the Convention for the return of their child.
Outside of those countries, legal remedies vary greatly. The U.S. State Department's Bureau of Consular Affairs can provide certain limited resources. Talk to a lawyer who is experienced in international child custody.
Child Custody Modification
Once your child is located and returned home, you'll want to prevent a future recurrence. Parental child abduction is a very serious offense. It will damage the abducting parent's standing in family law court. If you previously had joint custody, that parent could temporarily or permanently lose their custody rights. Of course, this will vary by state, judge, and family circumstances.
Enforcing Child Custody Orders
Every case of child abduction case is a violation of a child custody order. The penalties that apply for a violation of a child custody order may also apply here. Penalties include large fines, jail time, loss of custody, or loss of visitation rights.
Learn More About Legal Remedies When a Parent Abducts a Child: Call a Lawyer
If you are worried about the safety of your children, or your spouse has violated your court order and taken your child out of state, talk to an experienced local family law attorney.