Interstate and international child abduction cases present some of the most difficult and technically complicated forms of domestic relations litigation. When a child is kidnapped across state lines or across international frontiers, an entire new set of laws immediately goes into effect. Indeed, there may be genuine issues as to which state, or which country has jurisdiction over the child, over the parents and over the dispute. There may be unlawful breaches of passport protocols, immigration laws, and local child custody orders.
The major treaties and statutes governing child abduction include:
- The Hague Convention. Technically known as “Hague Convention on the Civil Aspects of International Child Abduction,” this international treaty, signed in 1980, provides for the return of children to their habitual residence. It is designed to prevent the wrongful removal or retention of children, and to provide a procedure for returning those children to the country where they originated. The Hague Convention, however, applies only to children under the age of 16.
- The International Child Abduction Remedies Act (ICARA). This federal statute implements the Hague Convention in the United States, and sets up the U.S. Department of State as the central authority for returning children back to the United States or back to the country which is their habitual residence. The Act sets up an Office of Children’s Issues to be staffed within the Department of State.
- International Parental Kidnapping Crime Act (IPKCA). This federal statutes makes it a federal crime to remove a child from the United States or to retain a child outside the United States with the intent to obstruct a parent’s custody rights. It is punishable by up to three years in prison. However, it is not a crime to remove a child if the parent is fleeing domestic violence or is otherwise authorized to take the child under another law.
- The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This law is actually a state law adopted by virtually all of the U.S. states and territories. It is a “uniform” state law because it reads the same (or nearly the same) throughout the country. The purpose of the UCCJEA is to determine which state maintains exclusive continuing jurisdiction of child custody cases, an important determination when parents living in two different states are fighting over the same child.
- Parental Kidnapping Prevention Act (PKPA). This federal statute, enacted in 1980, is not a criminal law and does not contain any provisions to punish abductors. Rather, it functions like the Uniform Child Custody Jurisdiction and Enforcement Act, by establishing the grounds for jurisdiction over a child custody matter. The Act gives preference to the “home state” in which the child in which the child resided within the past six months before the filing of a custody action. It further provides that a state cannot modify a child custody decree of another state without complying with the terms of the PKPA.
- The European Convention. This international treaty is formally known as the “European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children.” It is the original treaty that creates reciprocal recognition and enforcement procedures between European states with respect to child custody orders issued by their respective judicial systems.
- Brussels II Regulation. The revised Brussels II Regulation is an administrative law of the European Union which addresses jurisdictional questions in cases involving child custody, parental responsibility and access to the child.
- The Parental Responsibility Convention. More than two dozen in the European Union have signed this treaty which is officially known as the ‘Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children.” This treaty sets forth uniform rules to determine which country is most competent to protect the interest of children, and how that country’s rules and laws are to be applied.
When a child has been “abducted” by one of the parents, or by a third party, it is important to know whether state law, federal law or international law may apply to the situation. Navigating the maze of child custody laws, statutes and treaties can be very intimidating to those who are not familiar with the process. Attorney Mark S. Guralnick has spent more than 30 years handling child abduction cases. He is licensed to practice law in nine states and four countries, and is actively involved in the International Bar Association. He is the author of the book Interstate Child Custody Litigation. If you have any questions concerning a child abduction case, please do not hesitate to call the Law Offices of Mark S. Guralnick.