Currently there was a huge media case involving a child that was abducted by his biological mother to her native country of Brazil and the biological father, in New Jersey, spent several years and several hundred thousand dollars to get his son back.  Several laws came into play, despite the fact that the child was the biological child of the the U.S. citizen and the biological mother died. I want to take a brief look at what typically happens in a case like this one, where the state, the country and the foreign country stand in their respective roles with regards to the laws.

All fifty states have adopted the International Child Custody Jurisdiction Enforcement Act, and some including New York has adopted the revised Uniform Child Custody Jurisdiction Enforcement Act, (”UCCJEA“) in 1999.  This Act makes the initial state or the child’s “home state” or “residing state” the state that has initial and exclusive jurisdiction to determine child custody, even in international cases.

The International Parental Kidnapping Crime Act (”IPKCA“), makes it a crime for the removal or retention of a child from the U.S. with intent to obstruct lawful exercise of parental rights.  While the Parental Kidnapping Prevention Act (”PKPA“) states that other states are to give “full faith and credit” to the initial state’s child custody order and thus they are to enforce and not to modify that state’s order.  The difference is that the PKPA does not apply to international child custody cases.

The Hague Convention on the Civil Aspects of International Child Abduction (”Hague Abduction Convention“), adopted by member countries, offers an expeditious remedy of return of the child to the country of habitual residence so that authorities in that State may adjudicate the custody dispute between the parties.  International Child Abduction Remedies Act (”ICARA“) is the statute that implements the Convention, allowing a Hague case to be brought in the state or federal court where the child is located.  Unlike the other statutes, the Hague does not provide for jurisdiction to hear custody matters. If return of the child to another Contracting State is not required by the Hague, then power to hear custody case will be determined under that state’s own jurisdictional rules. As of May 2007, the Hague Convention is in effect between the United States and: Argentina, Australia, Austria, Bahamas, Belgium, Belize, Bosnia & Herzegovina, Brazil, Bulgaria, Burkino Faso, Canada, Chile, China (Hong Kong Special Admin. Region 1) Macau, Colombia, Croatia, Czech Republic, Cyprus, Denmark. Dominican Republic, Ecuador, El Salvador, Estonia, Finland, France, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Former Yugoslav Republic Of Macedonia, Malta, Mauritius, Mexico, Monaco, Netherlands, New Zealand, Norway, Panama, Peru, Poland, Portugal, Romania, Serbia, Slovak Republic, Slovenia, South Africa, Spain, St. Kitts and Nevis, Sweden, Switzerland, Turkey, United Kingdom, Bermuda, Cayman Islands, Falkland Islands, Isle of Man, Montserrat, Uruguay, Venezuela, Yugoslavia, and the Federal Republic of Zimbabwe.  (There is currently Congressional efforts being made to get Japan to join since they are of the few countries that awards only “sole” custody and that is typically to the mother.)

So what does this all mean, in short?   If there is a child custody order issued from Supreme Court (as part of a divorce) or Family Court and the non-custodial parent kidnaps the child to another state then the UCCJA and the PKPA may both apply.  The UCCJA is superseded by the PKPA in some instances, i.e. where “emergency” situations exist which requires the state where the child is currently located to exercise jurisdiction in some instances.  Conversely, there are cases where the UCCJA applies and the PKPA does not, where the child custody order was issued by a foreign country.  If there was no child custody order issued by any state  then the PKPA is invoked and states that only the “home state” has jurisdiction. Or if there is a child custody case pending in another state, the court in the current state cannot have jurisdiction unless the initial court stays the proceedings, declines or in some way stops exercising jurisdiction.   However, if there is a child custody order the PKPA may still apply, the difference is that under the PKPA  international orders, orders that are not actually custody orders, and orders that are invalid under the PKPA’s own set of rules do not have to be enforced under the PKPA. Neither of these statutes actually give any court to determine custody, procedurally or substantively.  The Hague would only be invoked when the abduction is to another country, whether or not there is a child custody order.  The Hague applies even the parent that did the abducting has an order for custody from the new country.

In New York, one would petition the Family Court for enforcement or modification of a child custody order under the UCCJA based on it being the child’s “home state” or based on temporary or “emergency”jurisdiction.  A case under Hague would require a petition be filed in federal court.

A full analysis of the international, national and state laws with regards to child custody, abduction and/or kidnapping requires a lengthy discussion.  If you need additional information please feel free to contact my office directly.