What you need to know about the federal parental kidnapping law.

Posted July 25th, 2016.

Categories: Custody Tips, Family Law.

kidnapping mark guralnick

You may be familiar with the Parental Kidnapping Prevention Act (PKPA), a federal law that turns 36 years old this year. You might think that because the PKPA is a “kidnap prevention” act, it can prevent a parent from abducting a child in violation of a court order. You might also think that the law is routinely enforced in the federal courts since it is, after all, a federal law. You might think that interstate violations of this kidnapping law would involve the FBI or other federal agencies. In fact, you might logically conclude that a parent who violates the PKPA would be committing a crime and would face possible jail, fines or other penalties.

And you’d be wrong if you thought any of these things. The Parental Kidnapping Prevention Act is our most misnamed and misleading law. It is not a criminal law. It does not prevent kidnapping. It does not impose fines, incarceration or other sanctions, and the FBI has little, if any, interest in it. The PKPA does not normally involve the federal courts, although it is possible to invoke the jurisdiction of the United States District Court in a proper case.

The PKPA is a jurisdictional statute. It helps state judges in local family courts determine which court has jurisdiction of a case. The Act largely follows the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which sets for the different ways you can get a local court to take jurisdiction over a multi-state case. Here’s an example: Assume that two children are living with their mother in Indiana. They visit their father (who divorced their mother) and who now lives in West Virginia. The children have been continuously living with their mother in Indiana for two years since the divorce took effect, but the divorce settlement allows the father to have periodic visits with the children at his home in West Virginia. While the kids are visiting their father, he decides to file a petition in a West Virginia family court asking the judge there to transfer custody of the children to him. Under the PKPA and the UCCJEA, the judge in West Virginia would probably dismiss the father’s petition and deny him any relief. Why? Because in this case, Indiana has exclusive jurisdiction of the case. Under the PKPA, Indiana is the “home state” of the children — meaning Indiana is where they have lived with at least one parent for at least six months before the matter was raised in court. So, in this case, when the father attempts to get a local judge in West Virginia to change custody, the federal PKPA will be available to the mother’s lawyers, who will undoubtedly respond to the father’s petition by asking the West Virginia judge to throw him out of court. Mother’s lawyers will contend that only Indiana has home state jurisdiction under the PKPA, and exclusive continuing jurisdiction under the UCCJEA.

So despite the fact that the PKPA sounds like a kidnapping preventing law, it really functions as a jurisdictional settlement law — a statute that helps parents and courts determine which judge in which state should be making the custody decisions.

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