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Parental Kidnapping Prevention Act: Determining What State Can Decide Child Custody

In 1980, as a result of recurring disputes between parents, the federal government stepped in and passed the Parental Kidnapping Prevention Act. 28 USC 1738A. The PKPA was not concerned with when a state could make an initial child custody determination. Instead, the law operates by stating when another state must give full faith and credit (meaning the second state must recognize and enforce the first state’s order) to child custody determinations. The PKPA also limits when a state can modify a custody or visitation order previously entered in another state.

The provisions of the PKPA are actually fairly similar to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). However, while the UCCJEA is a state law passed by each state and determines when initial jurisdiction to make a child custody determination as well as modify or enforce custody, the PKPA trumps the UCCJEA. Therefore, the UCCJEA’s provisions mirror the federal provisions of the PKPA.

The PKPA states a state shall enforce and shall not modify a custody or visitation determination of another state that was made consistent with the PKPA. There are exceptions. A court in a second state can modify another state’s order if that state has jurisdiction under its own laws to make such a determination and the first state no longer has jurisdiction or declines jurisdiction. No state is to exercise jurisdiction over a custody or visitation case if another state is already exercising jurisdiction if the other state is exercising jurisdiction consistent with the PKPA.

A number of the provisions in the PKPA are based on the first state exercising jurisdiction consistent with the PKPA. There are several ways a state has jurisdiction to make a custody or visitation determination. The first is if the state has jurisdiction under its laws and the state was the home state of the child at the time of the proceeding or six months before the proceeding. The second allows a state to exercise jurisdiction if it appears no other state has jurisdiction, the child or the parents have a substantial connection to the state and there is substantial evidence in the state. A third basis would be the physical presence of the child in the state and an emergency making a determination necessary to protect the child because of a threat of mistreatment or abuse to the child, a sibling, or a parent. If no other state exercises jurisdiction or declines to exercise jurisdiction, then a state can still have jurisdiction.

The bottom line for most people is simple — You cannot avoid the jurisdiction of the child’s home state that is making or has already made a custody or visitation determination by going to another state. Any other state in the country is required under federal law to give full faith and credit to the first state’s determination.