I am the father of two children, ages 10 and 12. The mother of the children lives in West Virginia, where she moved after our divorce. The children were born and always have lived in North Carolina. The North Carolina order for custody allows the children to travel to West Virginia for 5 weeks in the summer. Last year the mother did not return the children when she was supposed to at the end of the summer, and the court here held mother in contempt. She filed for custody in West Virginia last summer claiming fictitious abuse of one child, but that case in West Virginia was dismissed. Then, I got them back. I heard that this might be kidnapping under some federal law. Can you explain kidnapping and whether I have any right with regard to kidnapping if this happens this summer?
– Frustrated and Looking for Options
With regard to parental kidnapping, I think you are referring to the federal law for Parental Kidnapping Prevention Act (PKPA), 28 USC section 1738A. The PKPA is frequently not well understood. The PKPA was enacted to resolve jurisdiction conflicts in child custody cases.
Clearly, North Carolina retains jurisdiction of your case and the mother should not have filed in West Virginia; that filing was frivolous. Essentially, under the PKPA, North Carolina is the “home state” of the children because of the existing custody order in North Carolina. Home state was established because the children lived here six months before the case began.
In addition to home state jurisdiction, the PKPA has three other types of jurisdiction: 1) significant connection; 2) emergency; and 3) more appropriate forum. Since there is a home state (North Carolina), significant connection and more appropriate forum absolutely do not apply under the PKPA. Thus, the only other jurisdiction to consider is emergency.
You state not facts that make me think that West Virginia could get custody jurisdiction under the PKPA for emergency reasons, and I have seen this tried in certain cases. In order to have emergency jurisdiction under the PKPA, the mother would have to allege that the children were 1) abandoned; 2) a child have been subjected to or threatened with mistreatment or abuse; or 3) a sibling or parent of the child had been subjected to or threatened with mistreatment or abuse. It is usually the false abuse allegation that creates the temporary problem in the other state (non-home state). This is what temporarily happened in your situation.
Please note that most interstate custody disputes are resolved under the Uniform Child-Custody Jurisdiction and Enforcement Act, which North Carolina has adopted, which is similar to the PKPA. The PKPA is there if you need it, however.
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