In a small percentage of cases where the parties’ relationship is breaking down, one spouse leaves with the children, goes to another state, files a divorce or similar action, and obtains or tries to obtain a protective order or something similar against the other spouse to keep the case in this new state (referred to as forum shopping). Most family law attorneys have handled, or been on the other side of, such a case. The allegations in the new state may be founded in fact, but this is typically legally insufficient to maintain the case in the new state, particularly if there are remedies in the original state.
Parental kidnapping is a crime if a valid custody order is in place; civil parental abduction occurs if no custody order is in place. To mitigate these actions, the various states have uniform child custody jurisdiction laws to determine which state should handle and hear a case. The latest version of uniform child custody laws is the Uniform Child Custody Jurisdiction and Enforcement Act (known by the acronym “UCCJEA”) and the federal law also has the Parental Kidnapping and Prevention Act (known by the acronym “PKPA”), which applies to provide remedy. The PKPA is not as commonly used as a remedy.
The key of the PKPA is the promise of full faith and credit under the United States Constitution to induce state courts to comply with its jurisdiction terms. This eliminates the possibility of two states exercising jurisdiction under the UCCJEA at the same time and under different legal bases, such as the “home state” or “significant connections” grounds. In addition, the PKPA prohibits a court from exercising jurisdiction when another state court is properly doing so under the PKPA.
Under the more utilized UCCJEA (or earlier variants of this uniform law, i.e., UCCLA and the UCCJA), the child’s “home state” is where the child has lived for the last six months, unless they are under six months of age and then where the child has lived since birth. The child’s home state is where all child custody litigation should take place, and will generally remain the place where child custody litigation takes place, even if a parent or the child moves to another state, unless and until neither parent and/or the child live in the original “home state.”
Nevertheless, trial courts are very focused on, and sensitive to, ensuring a child’s best interests, having jurisdiction and it not being in question, so it is generally advisable to have an attorney familiar with parental child abduction and/or parental kidnapping laws. Trial courts sometimes resist declining jurisdiction for fear it will cause the child harm and because there is an open and debatable legal issue as to jurisdiction. Jurisdictional arguments are very technical and require tools and actions very different from other areas of domestic law.
As a general course of practice, a parental abduction attorney will obtain counsel in the other state (where the children were taken) and seek an order that the child be returned under these uniform laws (which may be in a federal court action under the PKPA), with the aid of law enforcement, if necessary. Also, in most cases, the parental abduction attorney will file an action or reactivate a prior divorce or paternity case and seek an order for the child’s home state judge to communicate with the foreign state’s judge and seek an order to return the child home.
In some cases, the children are taken into protective custody and/or a police officer is sent to accompany them to return to the state, as determined and ordered under the PKPA or UCCJEA, to the parent who will have custody while the matter is sorted out in that state’s court system.
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