Custody, Visitation and Parental Kidnapping

California State Family Court, divorce attorneys and law enforcement authorities know, in parental kidnapping cases, a parent’s motive and malice count very little, because the definition of parental kidnapping depends almost entirely on geography. A parental kidnapping takes place when one parent deprives the other of custody and visitation by moving outside the jurisdiction of the Family Court in which agreements were filed. Some states draw a distinction between kidnapping and abduction, making abduction the more serious offense by attaching recklessness and endangerment to the act of transporting a child across state lines. Both definitions assume that one parent deliberately chose to deprive the other parent of his or her legal rights.

Standard Custody and Visitation Arrangements

Most California custody and visitation agreements grant “joint legal custody” to parents so that they can discuss and resolve issues related to the children’s well-being. Most agreements stipulate that parents must agree on the children’s healthcare, education, sports and activities; they usually stipulate that parents will share exceptional medical and educational expenses. Standard agreements award “physical custody” to one parent—in the vernacular, he or she is “the custodial parent.” The non-custodial parent has “reasonable” rights to visitation, and some agreements establish strict visitation schedules. Child support typically is proportional to the time the child spends with each parent. Both parents are entitled to the court’s protection when one willfully violates the terms of their agreement.

Naturally, one parent cannot block the other parent’s relocation for job reassignment, promotion or other legitimate employment purposes; in general, parents cannot interfere with one another’s choice of residence as long as both provide for the children’s well-being and meet the visitation requirements. When a parent relocates, however, both parents should protect their custody and visitation rights by renegotiating their agreement.  When parents travel, a little common sense can prevent a great deal of heartache. Non-custodial parents should eliminate suspicion and detention when they travel, especially when they travel internationally, by carrying notarized permission letters from the custodial parent. The letters must specify terms and conditions consistent with the traveler’s itinerary; all-purpose permission letters have very little force.

Statutes and Treaties

The federal Parental Kidnapping Prevention Act limits parents’ ability to move from one state to another for the sake of evading legally binding custody and visitation agreements. The act deals extensively with jurisdictional issues, and it does very little to define or determine when a criminal or tortuous act has taken place. In its simplest interpretations, the PKPA says that one state may not interfere with enforcement of another state’s “custody determinations.” In practical terms, the statute prevents parental kidnapping by establishing that custody and visitation orders cross state lines with children and their parents.

The Uniform Child-Custody Jurisdiction and Enforcement Act supplements and reinforces the federal Parental Kidnapping Prevention Act. According to The Federal Office of Juvenile Justice and Delinquency Prevention, “The UCCJEA is designed to deter interstate parental kidnapping and to promote uniform jurisdiction and enforcement provisions in interstate child-custody and visitation cases.” Forty-nine states, the District of Columbia, Guam and the U.S. Virgin Islands have adopted the Act which “requires State courts to enforce valid child-custody and visitation determinations made by sister State courts.” The Act does establish two alternate criteria for jurisdiction over custody cases: (1) If a child has resided for more than six months in a state, its courts may establish jurisdiction, or (2) if a child has not resided in a state for more than six months since issue of the original “custody determinations,” the court with closest connection to the child may assert jurisdiction.

The Hague Convention Treaty establishes similar reciprocity between nations that have ratified it. The much-publicized 2012 Kelly Rutherford custody dispute clearly indicates, however, reciprocity cannot take precedence over citizenship issues. A New York judge granted temporary “residential” custody of the couple’s two children to their father because the United States refuses to reinstate Daniel Giersch’s visa. Therefore, Giersche cannot honor the terms of the couple’s agreement. Giersch’s visa issues have nothing to do with the quality of his parenting; the judge in the case declared both Rutherford and Giersch “are good parents.” Still, in order to satisfy the terms of the couple’s visitation agreement, Rutherford must see her children in France.

Effective Response to Parental Kidnapping or Abduction

When your ex-partner takes your children in violation of a court order or without your permission, you immediately should contact law enforcement officials and your divorce attorney. Especially if you feel your children’s safety and health are endangered by your ex’s action, pursue every remedy the law allows. If your children are young, law enforcement officials may issue an “Amber Alert,” and they may charge your ex with multiple felonies when they apprehend him. In general, do everything the law allows to return your children home safely.