Custody Extradition Laws

By Heather Frances J.D.

Divorcing parents often fight over custody, and sometimes the custody disputes get so heated that one parent runs to another state with the children. While the parent who takes the children cannot necessarily be “extradited”-- because extradition refers to criminal cases -- he could be forced to return the children to their home state for custody proceedings.

Uniform Child Custody Jurisdiction and Enforcement Act

Nearly every U.S. state has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, which governs a court’s authority, or jurisdiction, over a child. This act does not set standards for how custody is awarded or what types of punishment a parent faces when he violates a court’s custody order; state law governs such matters since states determine custody arrangements. For example, a state’s laws may allow a court to issue temporary custody orders while a couple’s divorce is pending. These orders, rather than the UCCJEA, govern the family’s custody arrangements.

Home State Jurisdiction

One of the UCCJEA’s most important provisions is the method state courts must use to determine whether they have authority, or jurisdiction, over a child. Under the UCCJEA, a child must have a close affiliation with a state before that state’s courts can exercise jurisdiction, and without jurisdiction over a child, a court cannot issue any custody orders involving that child. The UCCJEA gives jurisdiction to the child’s home state, which is the state where the child has lived for at least six months prior to the filing of the custody action. Thus, if a parent takes a child to another state and immediately files for custody there, the court in the new state may refuse to issue an order because the previous state has “home state” jurisdiction. In contrast, the parent remaining in the home state can file a custody action in that state, even though the child is not physically located there.

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Emergencies

Because “home state” jurisdiction does not work well for every situation, the UCCJEA also provides jurisdiction in emergency situations or when the child has other significant connections with a particular state that does not qualify as his home state. Courts can issue temporary orders because of an emergency situation, such as when a child has been abandoned or if he, or his sibling or parent, is the victim of mistreatment or abuse. For example, a parent who is being physically abused by her spouse could take their child, flee to another state and request temporary custody orders from that new state. Under the UCCJEA, the new state can grant such a temporary order because of the emergency situation.

Parental Kidnapping Prevention Act

The Parental Kidnapping Prevention Act is a federal law that sometimes applies to a parent who takes her child across state lines while a divorce is pending. This act requires state courts to enforce orders from other states, so a custody order in one state is effective in another state. Its provisions are similar to the UCCJEA when it comes to respecting another state’s jurisdiction, but it applies mainly when there are existing custody orders. The state that issued the original order retains authority to issue modifications and new orders as long as state law permits and at least one parent or the child lives in the state. Thus, the court in the original state can order the child to be returned to that state and other states must follow that order.

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Can One Parent Take a Child Out of State Prior to Divorce Filing?
 

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