Parental kidnapping is essentially when one parent relocates their child without the consent of the other parent. According to the United States Department of State, there are over 200 child abductions each year due to one parent trying to avoid, override or modify a current custody agreement. Parental kidnapping in New York is a serious offense that may result in jail time for the abductee. The Parental Kidnapping Prevention Act was enacted to deter the problem of parental kidnappings.
What Are the Grounds for Parental Kidnapping?
Parental kidnapping does not exist without a court ordered or recorded custody agreement. Any parent retains the right to go with their child where and whenever they want, as parents have equal rights when it comes to their children. Parental kidnapping happens when one parent removes the child to an unknown location in order to deny the other parent custody, visitation, or their legal rights. Essentially, parental kidnapping requires the malicious intent to secretly keep a child from the other parent.
What Laws Prevent Such Activity?
Before 1968, child abduction laws in New York did not exist. A father or mother could easily move their child out of state without any serious consequences. There was no uniformity from jurisdiction to jurisdiction. This contributed to forum shopping in order to seek a more favorable custody outcome, by choosing the jurisdiction that would likely favor the abductee parents’ choice. This problem was addressed through the creation of the Uniform Child Custody Jurisdiction Act (UCCJA) throughout the United States. The UCCJA presented the four grounds for a court to have jurisdiction in a child custody case:
- Home state — Where is the child’s state of residency?
- Significant connection — Does the state the parent is seeking jurisdiction in have significant connection/ties to the child?
- Emergency — Has the child been neglected? Is there any abuse?
- Vacuum — Is there any legitimate basis for jurisdiction in this state?
While the UCCJA’s reforms were effective for the most part, there was still much abuse of the system. One significant problem was whether “home state” and “significant connection” met the same thing. For example, Trevor may live in New York, but every weekend he goes to New Jersey to live with his dad. Which state has jurisdiction here? New York has jurisdiction because New York is Trevor’s home state, but New Jersey also has jurisdiction based on the significant connection grounds under UCCJA. The UCCJA had no clear answer to which state had primary jurisdiction over the matter.
To combat this issue, in 1980, the United States Congress passed the Parental Kidnapping Prevention Act (PKPA). The key issue PKPA addressed was the concern of home state vs. significant connection. Here, PKPA gave primary jurisdiction to the home state, instead of significant connection. PKPA states that a home state will be the only state, unless there is an emergency, that will have jurisdiction over a custody matter. Therefore, Trevor’s state of jurisdiction would remain in New York, because New York has primary significance over New Jersey. Absent on emergency, New York will be the only state that has jurisdiction with respect to child custody.
Will the Abductee Always Be Charged with Kidnapping?
While the PKPA will help to deter forum shopping in order to receive a more favorable custody agreement, which many times is the only reason for parental kidnapping, there are a wide array of questions a court will have to ask when determining if a parent will be charged with kidnapping. The court may ask:
- Does the custody agreement allow out-of-state travels?
- Did the parent conceal the travel?
- Are the parents married?
- Was the father’s paternity legally established?
- Is it a brief visit?
If you have a child custody agreement, but are thinking of relocating your child, be sure to consult with a New York family law attorney. The lawyers at Larry McCord & Associates, LLC have experience representing spouses in all aspects of matrimonial and family law litigation. The complexities in divorce and custody cases can be overwhelming and emotional. Contact Larry McCord and Associates, LLC at (631) 643-3084 to put an experienced Long Island divorce lawyer on your side.