Sometimes, in child custody disputes, parents run away with their children. This violates their child custody order. Parental kidnapping can also be the retention of a child beyond the scope of a custody agreement or court order. Under state and federal law, removing a child from their custodial parent or legal guardian is illegal. For example, in California, child abduction is a crime against the custodial parent.
This article discusses laws that come into play in child abduction cases.
Interstate Child Abduction
A parent can be charged with kidnapping their own child. This is called parental kidnapping. Law enforcement is usually the best remedy available. Parents are also free to hire their own private investigators. Parent locator services can assist in parental kidnapping cases by helping authorities locate the missing child and the parent who abducted them.
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 someone has abducted a child. To use the AMBER Alert system, the child must be 17 or younger. There must also be a serious risk to the child of injury or death. Not every parental abduction case qualifies.
Legislatively, several laws 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 a solution to remove that legal incentive for parental kidnapping.
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 return abducted children between state lines. PKPA is a federal law, so it trumps state law when there is a conflict between states. The Act tells state courts to 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 six 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 does 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 abandoned, the local court may take emergency jurisdiction.
Let's say a parent fled a domestic violence situation and took the child across state lines. This would trigger emergency jurisdiction in the receiving state. If no court has jurisdiction, the nearest court can take jurisdiction as “the most appropriate forum."
Forty-nine states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). It ensures the interstate enforceability of child custody orders. It resolved conflicts between the PKPA and the UCCJA. It added protections 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. to obstruct another person's custodial rights. The FBI investigates such cases.
Two legal remedies 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 give the prompt return of the child to their state of residence. It doesn't settle child custody disputes. Rather, the Convention seeks to return the situation to the status quo before the child abduction occurred.
If the parent fled to a country that has agreed to cooperate with the U.S. as part of an international treaty, 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. In these cases, the respondent is typically the parent who has taken the child without legal justification. One parent's disclaimer of parental rights does not absolve them of the legal consequences of parental kidnapping.
Child Custody Modification
Once your child is located and returned home, you'll want to prevent a recurrence. Parental child abduction is a very serious offense. It will damage the abducting parent's standing in a family law court. If you previously had joint custody, that parent could lose custody rights. Of course, this will vary by state, judge, and family circumstances.
Child custody modifications can occur when circumstances have changed since the original issuance of the order. Examples of such changes may include allegations of child abuse, a change in a parent's financial situation affecting child support, or a relocation of the child's habitual residence. In any case, modifications to child custody arrangements require court approval.
Enforcing Child Custody Orders
Enforcing child custody orders is the responsibility of the parents and the legal system. If a family member violates a custody order, the other parent can seek enforcement through the court system. The Department of State may become involved if a parent takes a child to a foreign country in violation of a custody order.
The Department of Justice can also become involved if the violation of a custody order is deemed a criminal offense. Consular affairs can become involved in parental kidnapping cases when a parent takes a child across international borders.
The court can issue penalties and sanctions against the offending party under criminal law. Penalties include large fines, jail time, loss of custody, or loss of visitation rights. Keep in mind that every child abduction case is a violation of a child custody order.
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 a court order, you should consider talking to an attorney.
An experienced family law attorney can give you legal advice about your parental rights. They will know your local laws and represent you in family court. They will help guide you through your legal issues regarding the custody of the child.
Talk to an experienced local family law attorney today.