As noted earlier, while most divorce and family law litigation is contentious and a stressful and difficult time for families, rarely does it result in one parent taking or actually kidnapping1 a child from the other parent. However, in those rare circumstances, there is a federal law, the Parental Kidnapping Prevention Act (PKPA)2 to help return children to their custodial parent, in addition to state family law3 and criminal law provisions.
Again, the State police force is the first line of defense. They can search for the child and work with agencies to try to safely and quickly return the child to the parent. If the child is in imminent danger of injury or death, an Amber Alert may be issued to allow the public to help track down the child.
However, if these avenues are unsuccessful, the federal PKPA law can help deter a parent from obtaining a contrary custody order in another state, thereby having two different parents with two different custody arrangements in two different states.
Here is an example to show the dangers and problems of multiple states with multiple custody orders. Mother and Father divorce and have one child in Indiana. Father is granted sole physical custody, with Mother ordered to have parenting time one evening a week and every other weekend.
Then, Mother takes the child past her parenting time out of state to Illinois. Mother files a custody action in Illinois, and is granted sole physical custody of the child. Who has custody of the child then? Mother has taken the child when it is past her parenting time and created a new custody order. PKPA was enacted to avoid these interstate custody disputes and allows filing in federal courts.
PKPA was enacted by Congress in 1980. PKPA, as federal law, takes precedence over state laws under the Supremacy Clause of the United States Constitution. However, PKPA only preempts state law if there is an existing custody order/decree. Under PKPA, only a child’s home state can make an initial custody determination, unless no other state would have jurisdiction and another state must make an emergency determination.
The benefit of PKPA is that it requires a foreign state to abide by a home state’s custody decree. Therefore, in the above example, an Illinois court would have no authority to make a new custody determination because Indiana, the child’s home state, already made such a determination in the other parent. Further, a federal court can make such an order and provide a remedy.
The PKPA does have three (3) exceptions. A foreign state’s decree does not need to be followed if a) the state did not have jurisdiction, b) the state custody decree was entered into without notice or the opportunity to be heard, or c) a custody action was entered as another was pending in another jurisdiction.
Therefore, with the other legal remedies, there are many ways to help return a child to his/her home. The PKPA is a useful tool to avoid multiple, conflicting custody decrees in the case where a parent has taken a child from the custodial parent and out of state. By not allowing numerous custody decrees, the original order stands in all states, and prevents the kidnapping parent from obtaining the same rights to the child out of state.
There are safeguards to prevent parents from kidnapping their children after a custody dispute and order. The PKPA federal law is one avenue to have a kidnapped child returned home. Stayed tuned for future blogs involving other means to address children taken away from their homes. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.
- As defined by criminal laws.
- 28 U.S.C. §1738A
- The Uniform Child Custody Jurisdiction Act will be addressed in a subsequent blog post in this series.