When A Parent “Abducts” Their Own Child
Can a biological parent abduct his or her own child? Does child abduction only occur when there is a custody dispute or divorce? The answer is “yes” a biological parent can abduct his or her own child and, “no”, a custody dispute or divorce is not a necessary precursor.
What is Child Abduction?
Child Abduction is the wrongful taking or removing, retaining or concealing a child. It is the taking away a person by persuasion, by fraud, or by open force or violence. There are two types of child abduction:
— parental child abduction and
— abduction by a stranger.
This article discusses abduction by a parent from another parent who has custody of that child.
Understanding Parental Abduction Laws
All the states have adopted the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA), which became effective on January 1, 2004. Besides the UCCJEA, there are other laws that may be involved in international or interstate custody jurisdiction disputes. These include the Hague Convention, 22 U.S.C.A. 9001 et seq. and the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. 1738A et seq. The PKPA provides that states must give full faith and credit to valid child custody determinations of sister states, however, no independent cause of action exists under the PKPA.
What Is The Hague Convention?
The Hague Convention is used when a child is taken or retained out of the country without the consent of his parent. When deciding if your child may leave the United States and travel to another country, you should know if that other country has adopted the Hague Convention or not. In the case of an abduction, a country who has adopted the Hague Convention will ensure that a child is brought back to their original jurisdiction. They will not allow litigation to commence anew in another country when there is already a custody order in the child’s home country. Counties that have not adopted the Hague Convention can essentially do what they want, regardless of whether there is a custody order already in place. For that reason, you should never let the other parent of the child travel to a location that has not adopted the Hague Convention.
What Is The Parental Kidnapping Prevention Act?
The Parental Kidnapping Prevention Act (PKPA) is a federal law that was enacted in 1980 to resolve child custody disputes between states. It keeps a parent from removing a child from one state and bringing the child to another state and commencing a custody determination when there is already an order in another state. It is designed to discourage interstate conflicts, deter interstate child abductions, and promote cooperation between states about interstate child custody matters.
Essentially, the PKPA is a full faith and credit law. By way of example, a young mother leaves the state of Texas and moves to Illinois, bringing her child with her. In Illinois, she files for protection against the father and seeks to keep the child in Illinois. If there is already an order in Texas, the Illinois court is bound to honor that order. That is what “full faith and credit law” means. Illinois should not attempt to relitigate what Texas has already ordered, and under the PKPA, Illinois should only enforce the Texas order. Since it is a federal law, it trumps the decisions in state courts.
What Should You Do If a Parent Abducts a Child?
The most important thing to do is act right away.
I recently had a case where the father complained to me that his wife abducted their two children and moved to Illinois with them. He wanted help in getting them back. I asked him when she had left, and he told me two years ago. That is a problem. Once children reside in a state for six months, that state becomes the child’s “home state.” The father’s failure to timely act on the “abduction,” especially when there was no order of custody in his state, makes his case unwinnable. Surely the mother would argue that she left with her husband’s consent and his wait in bringing any type of action in the last two years are harmful to his case.
Work With an Experienced Child Custody Attorney
Cases that deal with parental child abduction, whether to another state or overseas, require you and your attorney to act quickly. This is not a time to hire a custody and child relocation attorney who is learning about the Hague Convention for the first time. Question your attorney to make sure that this type of case has been handled before and ask how many cases your attorney has actually handled involving abduction and child relocation. It is extremely important to locate counsel with knowledge and experience in Hague proceedings and act right away.
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