One of the most frightening things that can happen to a parent is to be faced with the abduction of a child. The fact that it was done by the other parent of the child does not make the situation much easier. In the U.S., various federal and state laws give redress for when a spouse abducts a child. There are also uniform laws which all of the states, except for Massachusetts and the territory of Puerto Rico, have adopted to create uniform procedures for child custody and abduction cases. Further, if the abduction is international, there is a whole different set of laws through the Hague Convention that govern the proceedings return to the U.S.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a uniform set of laws which provides a standard to determine which court has jurisdiction to decide a custody case. The UCCJEA was created to prevent conflicting decisions from different state courts in child abduction cases between related parties. The Act prioritizes the jurisdiction of the courts of the child’s home state, which is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months). If the child has not lived in any state for at least six months, then jurisdiction lies with a court in a state where the child and at least one parent have significant connections. Thus, if there is substantial evidence concerning the child’s care, protection, training, and personal relationships in a state, that will be considered the child’s home state. If more than one state meets the significant connections/substantial evidence test, the judges of the two states must communicate and determine which state has the most significant connections to the child. Where no state meets the test, the court where the action was filed retains jurisdiction.
In the event a parent abducts a child to another state, the contesting parent should file a petition for custody and a Writ of habeus corpus within six months in the original home state court of the child for his or her return. Once the Writ is signed by the judge, it should be brought to the sheriff in the county of the state where the child was taken. The sheriff will serve the Writ on the parent who abducted the child and may take the child at that time to deliver him or her to the other parent. Alternatively, the court may direct the abducting parent to produce the child at the next court appearance.
If a parent abducts the child to another country or refuses to return the child to the U.S. after a trip to another country, the first question is whether the country where the child has been abducted has adopted the Hague Convention on the Civil Aspects of International Child Abduction. This is a global treaty adopted by over 90 countries to provide a legal process for securing the prompt return of kidnapped children to their home countries. If the foreign country is a signatory, then the parent should be able to file an application for the return of the child in New York. The writ obtained in New York must still be served on the parent in the other country, which may be challenging and expensive. If the country where the child abducted to is not a signatory, trying to get the child returned will be more difficult. To that end, there are some countries that are signatories to the treaty yet create difficulties in getting the child returned to the legal custodial parent.
If you are concerned that your child is at risk of abduction or has been abducted, it is crucial to speak to an experienced family law attorney immediately to discuss how to proceed. For assistance with your matter, contact us for a consultation.