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Parental Kidnapping Prevention Act

Parental Kidnapping Prevention Act

In 1980 Congress enacted the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.S. § 1738A, to close existing gaps and to bring greater uniformity to interstate child-custody practice. The PKPA requires state courts to enforce and to not modify custody and visitation determinations made by sister states unless the original state either no longer has jurisdiction or declined to exercise jurisdiction.

PKPA Similar to UCCJA

The PKPA provisions regarding bases for jurisdiction, restrictions on modifications, preclusion of simultaneous proceedings, and notice requirements are similar to those in the Uniform Child Custody Jurisdiction Act (UCCJA). However, there are some significant differences. Under the UCCJA, there are four interchangeable bases of initial jurisdiction. The PKPA prioritizes the home state jurisdiction by requiring that full faith and credit cannot be given to a state that exercises initial jurisdiction as a significant connection state when there is a home state. In addition, the PKPA authorizes continuing exclusive jurisdiction in the decree state so long as one parent or the child remains in that jurisdiction. The UCCJA did not directly address that issue.

Relief Under PKPA

If a party refuses to return a child, relief may be sought under the PKPA. Local law enforcement is bound by law to enforce the PKPA, and it is not up to them to selectively enforce it or to decide the merits of any specific case or situation where the PKPA is applicable.

Home State Priority

The PKPA gives priority to home state jurisdiction. This priority is intended to limit jurisdiction in initial custody cases to one state, the child’s home state. The PKPA’s home state priority is designed to prevent a significant connection state from exercising jurisdiction over a matter when the child who is the subject of the proceeding has a home state. The home state is defined as the place where the child lived within 6 months of departure to another state or the filing of visitation/custody proceedings. However, one parent must still continue to live in that first state, even though the child is living in another state.

Exclusive, Continuing Jurisdiction

Exclusive, continuing jurisdiction under the PKPA protects an original decree state’s jurisdiction to modify its own order. This protection addresses an ambiguity in the UCCJA’s modification section that some courts have interpreted as allowing a child’s new home state to exercise modification jurisdiction even when the decree state, which is the child’s former home state, could still exercise jurisdiction on significant connection grounds. Under the PKPA, the original home state has exclusive, continuing jurisdiction to modify its own order to the exclusion of all other states, including the child’s new home state, assuming that the original home state has jurisdiction under state law and that at least one parent or the child continues to live there. Additionally, every state, including a significant connection state, must grant full faith and credit to the home state’s order.

Reasonable Notice and Opportunity to be Heard

Contestants, any parent whose parental rights have not been terminated, and any person who has physical custody of the child must be provided reasonable notice and an opportunity to be heard.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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