The media regularly reports on cases of parental child-snatchings, many occurring post-divorce as parents unhappy with the custody provisions of a divorce decree flee with their children, taking the law into their own hands. According to the website Travel.State.gov, it happens more than 200 times every day. Parental kidnapping is a common issue during and even before divorce. For this reason, several federal laws have been enacted, including some that specifically prevent parents from moving to a new jurisdiction in order to establish new custody orders that favor them. One is the Parental Kidnapping Prevention Act, passed in 1980.
The Parental Kidnapping Prevention Act, PKPA, enforces jurisdiction in custody proceedings, including those involving divorce actions. As soon as you or your spouse file for divorce, the state where you do so establishes jurisdiction over your children. The PKPA doesn't dictate where you must file for divorce if you have children – the Uniform Child Custody Jurisdiction and Enforcement Act does that. After divorce litigation is started, however, the PKPA prohibits any other state from stepping in and issuing a ruling regarding the children involved. What this means is that if you file for divorce in one state and the court immediately enters a temporary custody order that you don't like, you can't take your children to a neighboring state and begin a new divorce suit – or even a custody action – there. The PKPA prevents the new state from making any ruling; it must give full faith and credit to the already-existing litigation. It must also enforce the other state's initial custody order.
Under the terms of both the PKPA and UCCJEA, your children's home state is the only one that can issue custody orders. If you happen to know that your state is particularly adverse to giving fathers custody and you're a father, you can't go to another state and file for divorce there until you establish the new jurisdiction as your children's home state. This means they must live there with you for at least six months before you file for divorce, or before you file for a custody order. Meanwhile, while you're establishing the new state's jurisdiction, your spouse can file for divorce in your old state. Under the terms of both federal acts, that location has home state jurisdiction over your children if they lived there for the six months immediately preceding the filing.
The PKPA makes an exception for certain dire situations, and a new state can establish jurisdiction over your case and your children in an emergency. This typically means you left your children's home state because either you or one of your children were in danger or physically harmed by the other parent. In this case, the new state can step in and issue an order to protect you or your children. The new state is the refuge state, not the home state, but it can still take action.
Another possibility is that if you leave with your children, the new state might be able to gain jurisdiction as a significant connection state. This means you and your children have some tie to the area, such as if you lived there for years before you moved to their home state. Significant connection states rarely have a part in divorce proceedings, however. They require that no other state has home state jurisdiction – and you can't file for divorce under the terms of the UCCJEA in any state other than the one where your children have lived the last six months, which is their home state. The PKPA does not require that states give full faith and credit to proceedings that are pending in other countries, or to custody orders or divorce decrees issued by foreign jurisdictions.
References & Resources
- University of Minnesota, Office on Violence Against Women: Interstate Child Custody – A Practitioner's Guide to the Parental Kidnapping Prevention Act (PDF)
- Michael R. Stetler: Parental Kidnapping Prevention Act – Determining What State Can Determine Child Custody
- U.S. Department of State, Bureau of Consular Affairs: Parental Child Snatching – An Overview
- Noel Hendrickson/Digital Vision/Getty Images