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Kevin O'Flaherty

In this article, we explain parental kidnapping law in Illinois as well as the federal Parental Kidnapping Prevention Act.  We answer the following questions: what is parental kidnapping?, what is the Parental Kidnapping Prevention Act?, what is the purpose of the parental kidnapping prevention act?, what resources does the Parental Kidnapping Prevention Act offer?, what are the exceptions to the Parental Kidnapping Prevention Act?, and when do emergency grounds for jurisdiction apply under the Parental Kidnapping Prevention Act?

What is Parental Kidnapping?

Parental kidnapping or parental abduction is the concealment, taking, or retention of a child by his parent in violation of the rights of the child’s other parent or another family member. When one parent decides to violate a custody agreement or refuses to return a child to the custodial parent, the Parental Kidnapping Prevention Act comes into play.  

What is the Parental Kidnapping Prevention Act?

The Parental Kidnapping Prevention Act is a United States federal law, enacted on December 28, 1980, that establishes national standards for the assertion of child custody jurisdiction. The Act was created to reduce interstate conflicts over jurisdiction and discourage parents who are dissatisfied with an existing or pending custody order from “forum shopping” around for a better custody agreement in other states.

Under the Parental Kidnapping Prevention Act, only the home state of the child has jurisdiction to establish custody and visitation agreements. All other state courts are required defer to the home state handle custody and visitation privileges. The PKPA says that one state cannot modify the child custody decree of another state. To learn more about jurisdiction in child custody cases, check out our article: Illinois Child Custody Jurisdiction Explained.

The Act also prohibits parents from taking a child across state lines in order to retain a child, obtain custody of a child, or deprive access to a child in violation of an existing court order or pending custody issue. Anyone who violates the court’s custody order by taking a child across state lines may be charged with a felony under the Fugitive Felon Act. When it comes to children of a legally married same-sex couple, a state that does not recognize same-sex marriage is required by the PKPA to enforce child custody orders originating in a state that does.

How to to determine which state has jurisdiction in a child custody case

When it comes to child custody issues, priority is given to the court that first issued custody orders. In the absence of existing orders, priority is given to the court of the state where the child has lived in the last six months prior to the filing of any legal proceedings. If there is no such court, the next priority is for the court in the state with the most significant connection to the child.

What is the purpose of the Parental Kidnapping Prevention Act?

The Parental Kidnapping Prevention Act is a federal law, created to prevent parents and other custodial figures from going to courts in various states in order to acquire conflicting orders of custody and visitation. Prior to the PKPA, jurisdiction was granted to the “home state” – the state where the child has lived in the last six months prior to the filing of any legal proceedings – or the “significant connection” state – the state where the child had the most significant connections. If the “home state” and the “significant connection” state were two different states, it created an ambiguity in the law. The PKPA established the jurisdictional primacy of the “home state” in matters pertaining to child custody.

What resources does the Parental Kidnapping Prevention Act offer?

Under the PKPA, the Federal Parent Locator Service is available to both state and local agencies to help locate any kidnapped children. If a parent or legal guardian kidnaps a child, the State police force is the first line of defense. They can search for the child through the Parent Locator Service, which provides access to a large number of federal databases, such as Social Security records, Internal Revenue tax returns, and Veterans benefits to try and help locate the latest address or phone number of the suspected kidnapper. If the child is in imminent danger of injury or death, an Amber Alert may be issued to allow the public to help track down the child.

What are the exceptions to the Parental Kidnapping Prevention Act?

There are a few defenses to a charge under the Parent Kidnapping Prevention Act, including:

  • that the person was acting in accordance with a valid court order,
  • that concealing or not returning the child was necessary to avoid an attack against the child, or
  • that circumstances beyond control of the person, such as weather or a broken vehicle, prevented the child’s return.

In addition, a foreign state’s decree does not need to be followed if:

  • the state does not have jurisdiction,
  • the state custody decree was entered into without notice or the opportunity to be heard, or
  • a custody action was entered as another was pending in another jurisdiction.

When do “emergency” grounds for jurisdiction apply?

If there is evidence of abuse or danger to the child, “emergency” grounds for jurisdiction apply. The PKPA does make exceptions in dire situations, and a new state can establish jurisdiction in the case of an emergency. Some examples of emergency situations could include a parent or child being in immediate danger or physically harmed by the other parent. In this scenario, the new state would be acting as a “refuge” state, not the home state.

Ultimately, working with the family court system to resolve custody issues is the best avenue for ensuring the safety of all parents and children involved.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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