WHAT IF YOUR CHILD IS ABDUCTED?

The abduction of children by the parent who loses the custody contest -- or fears she will lose, and so strikes first -- is a definite danger and a sad fact of modern life. The laws have done a lot to discourage and remedy parental child snatching, but it still goes on. Parents who will do this to a child often do not know about the law, and just as often don't care. They think they can hide out from the law, or hire counsel and successfully subvert the law.

The laws of all states now provide criminal liability for snatching a child or retaining a child in violation of a court order. Interstate and international child snatching are controlled by special laws which are designed to keep parents from profiting strategically by taking the child across state lines and national boundaries. They are less than perfect as a means of getting the child back immediately. Yet they do serve, in most cases, to keep the guilty parent from suing to legitimize the abduction under the law of another state. The laws impose major restrictions on what a court in the new state can lawfully do.

These Acts (also called laws, or statutes) don't operate automatically. They have to be applied by judges. It will often be necessary for the victim parent to file something in the courts of one state or another, or even both.

The Uniform Child Custody Jurisdiction Act (UCCJA)

This is a uniform act, which all 50 states have adopted. Thus you can be sure that (except for some minor variations) the law of interstate child custody jurisdiction (not substance or even procedure) in your state and a distant state will be the same. It has been partly superseded by a federal statute (the PKPA, below), which is an improved version of the UCCJA, but covers only part of its subject matter. At points where they overlap, and differ, the PKPA prevails.

INTERNATIONAL CASES

Are there orders that are not entitled to enforcement under the PKPA, but are enforceable under the UCCJA? Yes. The only custody orders in this category are foreign-country orders. The Uniform Child Custody Jurisdiction Act, by its own terms states, in Section 23, extends its policies "to the international area". It describes as enforceable those orders issued by court systems that operate on basic principles similar to ours.

FEDERAL LAW: The Parental Kidnapping Prevention Act (The PKPA)

By this 1980 statute, 28 USC §1738A, Congress required the courts of all the states to give full faith and credit to custody orders of other states. It says that a judge in a new state (often called Forum 2, or F2) is prohibited from exercising jurisdiction to modify an existing order from a state that still has jurisdiction over this case. That is, the new state's court has no power to act at all in a custody case if some other state has once made a custody order and at least one party remains in that original decree state. Section (a) of the PKPA declares that a second forum must enforce, according to its terms, and not modify, another state's custody order -- unless that first court has lost jurisdiction over the child and the case.

There is a possible exception for emergency. The continuing jurisdiction of another state is supposed to be exclusive, but what if a second forum claims jurisdiction over the custody of the child by virtue of "emergency?" Emergency jurisdiction is recognized under both the UCCJA (Section 3) and the PKPA. Most courts have held that emergency jurisdiction does not constitute jurisdiction to modify.

In cases where there has never been a custody decree, the PKPA says only the "home state" can have jurisdiction. This is, basically, where the child has lived for the last six months. Another state can decide custody only there is no home state, or the home state has voluntarily waived its right.

The fact that F1 has continuing jurisdiction does not mean it must keep it. Like a home state, the continuing jurisdiction state can voluntarily defer its exclusive exercise privilege to the new state. This is discussed below.

Also, a judge in a second forum is absolutely prohibited from exercising jurisdiction when the case is pending elsewhere. The judge can exercise jurisdiction only after the first forum (i.e., the place of first filing -- which may be the wrong forum under the Parental Kidnapping Prevention Act) stops exercising jurisdiction (declines and defers, or stays the proceedings). The PKPA is quite explicit that custody cases cannot legitimately be pending in two states at once. See Subsection (g) of 28 USC §1738A. The first-state pendency must, however, be legitimate, i.e., consistent with the PKPA & UCCJA.

The judge, when the case is already pending elsewhere, is required to communicate with his or her counterpart in the other state. However, the judicial communication is a wild card in this otherwise orderly business. Anything might happen, and it is a process usually not controlled or even witnessed by counsel.

The proper state's "declining to exercise jurisdiction" and "deferring" to another state is a distinct possibility. Judges are often eager to send any custody case away to another court. If the child has been gone from the first state for a long time, the judge will probably feel that the second state is where all the evidence is. There is a list of criteria set forth in Section 7 of the UCCJA for this discretionary decision. Examples are that other state is or recently was the child's home state; that another state has a closer connection with the child and his family; that substantial evidence is more readily available in another state; and that deciding the case here would violate the principles and purposes of the UCCJA.

WHAT CUSTODY ORDERS CAN BE ENFORCED UNDER THE PKPA?

The short answer is, all custody orders. The PKPA and UCCJA are meant to apply to all custody orders, permanent or temporary. The only ones that do not have to be enforced under the PKPA are (A) international orders; (B) those that are not actually custody orders, and (C) those that are invalid under the PKPA's own set of rules.

Invalid first-state orders that courts construing the PKPA have felt not bound to honor have fallen into various predictable classes, such as: (1) no notice or inadequate notice; (2) other due process deprivations (no reasonable opportunity to be heard); (3) F1 ignored simultaneous pendency; (4) no initial-determination jurisdiction. That is, a first-state order may be defective under the PKPA because the court making it simply lacked first-time jurisdiction of the case under the standards listed in the PKPA. To have valid jurisdiction in an initial determination a court must either be the home state, (where child has lived for six months), or be eligible by other tests (significant connections, etc.) in a situation where there is no home state. When the state that made the determination does not fit somehow within the permissible PKPA categories, its prior determination can be ignored. Other fatal defects include:

(5) No continuing jurisdiction. (A court which had jurisdiction may have lost it . Even under the PKPA, once all parties and the child have left the state, it has no remaining authority. ) (6) Other state had continuing jurisdiction. (A second state that ignores the continuing jurisdiction of F1 does so at its peril. When it does that, its F2 decision can lawfully be ignored and overridden by a contrary decision of F1 or some third state.) (7) Invalid emergency exercise. (There may have been an emergency, but the court may have exceeded the authority that the emergency gave rise to, and ordered a change of custody. It has been held that emergency jurisdiction confers authority only to make temporary orders and not to make a custody modification. Or the court of the other state may second-guess the first court as to whether an emergency actually existed. If there was no true emergency, there was no emergency jurisdiction.)

WHAT KINDS OF LITIGATION SHOULD BE USED TO ENFORCE A CUSTODY ORDER?

The PKPA is not a procedural statute. In fact neither the PKPA nor the UCCJA tries to dictate matters of state procedural or substantive custody law. One procedure that the UCCJA does provide is registration. Under Section 15, anyone has an absolute right to register a foreign custody decision in any court having custody-deciding authority. The statute does not speak of petitioning to register, or asking for permission to register: one simply registers. The court can demand three certified copies. (Registration is additional and not mandatory: courts must enforce the foreign decree whether it is registered or not.) And, in virtually every state you can file a motion to dismiss another party's custody petition. If the petition seeks a custody modification from a state that should only be enforcing, not modifying, or seeks a first-time order from a state without first-time jurisdiction, it should be dismissed. Also, there is nothing wrong with filing a pleading entitled "Petition to Enforce a Foreign Custody Order under PKPA."

THE ROLE OF POLICE AND OTHER AUTHORITIES IN THESE CASES

The PKPA and UCCJA do not talk about anyone but the courts. Going directly to prosecutors, police, schools and welfare departments where you know or suspect your child was taken may well not work. The main reason is that there is no law directly telling such authorities what they must do. However, in many cases it should be tried. The reason is that laws and practices in this area are changing. Some states do require the police, etc., to give some cooperation. In other states and communities, no law requires it, but the police and schools are very helpful anyway. And often this helpful attitude extends to going out and picking up the child, and holding that child till the arrival of a parent with a valid custody order. Filing a missing-persons report with local police is an important first step.

WHAT ABOUT SELF-HELP?

There are parents who have taken a certified copy of the valid custody order, gone to another community and picked up the child, and lived happily ever after. However, lawyers advise against it nowadays because of all the known and unknown dangers that complicate these cases. If the abducting parent has obtained a custody order in the new state, the re-abducting parent probably won't get very far. The police cooperation that you couldn't get may just be available to the other parent -- particularly if she is on her home turf and you are not. And since courts do make mistakes, what if that bad order is later held to be the valid one? Also, there can be criminal liability for the re-abducting parent, and that can be an extremely serious matter.

FOUNDATION-FUNDED CENTERS

A number of national associations run programs for the benefit of children abducted by parents. They are funded by charitable donations and often by grants of government money. By all means contact these centers for what help they can offer in locating your child and giving advice. However, they often have strong partisan political agendas, and are driven by concerns that may not be the same as yours. If you are not considered politically acceptable or if your case does not fit the kind of statistical picture they are trying to build for purposes of further fund-raising, you may encounter hostility and receive very limited help.

FINDING A LAWYER

You will probably need a lawyer in one state, if not two. The best way of finding legal counsel skilled in interstate custody matters is to use the recommendation of a lawyer you trust. If that attorney says his or her own firm does family law and is equal to the task, do not hesitate to ask some pointed questions about knowledge and experience in this specialized field before agreeing. Some will have that knowledge and experience; most will gladly recommend another firm, or help you search for one. Usually a family ("domestic relations") lawyer will contact a member of a select group such as the American Academy of Matrimonial Lawyers and ask who is really good at this in the place where counsel is needed. If there is no trusted lawyer to begin with, the best way is to use any kind of personal recommendation you can get -- even the lawyer of a friend of a friend of a relative, etc. The worst is to use the yellow pages, or TV advertising. The local bar association's referral list is usually a bad idea as well. A national lawyers' directory, such as Martindale-Hubbell, found in public libraries, tells you things about a lawyer that you need to know, and thus is more useful.

INTERNATIONAL CASES --The Hague Convention

If the abduction is to another country, the practical obstacles you face can be enormous, but the legal picture may be more encouraging. That is because of a world-wide treaty that the U.S. has signed with 45 other countries, which requires that the government immediately send an abducted child back. This treaty is not about jurisdiction of the courts to decide custody cases. It is an acceptance by all these countries of the idea that any custody dispute there might be will be handled much better by the courts of the place where the child lives.

If there has been a "wrongful removal or retention" of the child abroad, and the child was taken from a parent who was properly "exercising custody rights," the child must be returned immediately to the country of his "habitual residence." It does not matter whether there is a custody order or not. However, if the abductor contests one of these important elements, or raises one of the few defenses allowed (like '''grave harm to the child if returned"), there will probably be a court case in the other country. If your child has been taken out of the U.S., contact the U.S. State Department, Office of Children's Issues (202-736-7000, FAX 202-647-2835), and request the form for demanding return of a child from abroad.

WHAT IF THE Hague Convention DOES NOT APPLY?

Not all countries have signed this treaty. When its quick remedy is not available, the State Department can still help. While it cannot intervene or litigate, it will supply "welfare and whereabouts" information on an American child. If the child has not yet crossed the border, and the removal violates a custody order, they can sometimes "flag the passport," so as to stop the border crossing or international flight. (Call 202-955-0377.) Also, foreign countries frequently give recognition to American custody orders even without a treaty, by the international rule of "comity." Finally, there is a new federal criminal statute, 18 U.S. Code Section 1204, that makes it a felony to remove a child from the U.S. "in violation of custody rights." This can mean that a call to the U.S. Attorney will produce a federal felony arrest warrant, a revocation of passport, and the forced return of the offender to this country.

© Richard E. Crouch, 1997. Used by permission.
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