What is the relationship between the federal law (Parental Kidnapping Prevention Act) and the state laws (Uniform Child Custody Jurisdiction Act or Uniform Child Custody Jurisdiction and Enforcement Act) – does one trump the others? As federal law, the Parental Kidnapping Prevention Act (PKPA) applies across the country. As uniform state laws, the Uniform Child Custody Jurisdiction Act (UCCJA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) apply only in states that have enacted them. In general, the principles of federalism establish that federal laws trump inconsistent state laws. However, the relationship between the PKPA and state jurisdictional laws such as the UCCJA and the UCCJEA is complex and, arguably, there is no direct conflict between these state and federal laws.
The federal and state laws have different purposes. The UCCJA and the UCCJEA determine whether a state has the authority to issue a child custody order. In contrast, the PKPA is a full faith and credit law. It tells courts when to honor and enforce custody orders issued by courts in other states or tribes. Thus, the laws serve different functions.
In addition, the PKPA references state jurisdictional laws, requiring a custody order to have been issued in compliance with the issuing state’s jurisdictional law to be entitled to interstate enforcement. Specifically, the federal law states:
“A child custody or visitation determination made by a court of State is consistent with the provisions of this section only if such court has jurisdiction under the law of such State . . .” 28 U.S.C. 1738A(c)(1).
Therefore, if a state issued a custody order without adherence to its own jurisdictional statute,1 the order would not be entitled to enforcement under the federal PKPA.
May courts exercise emergency jurisdiction in domestic violence cases in states that have enacted the UCCJA when a child has not been abused? The UCCJA’s definition of emergency jurisdiction is more limited than the definition of emergency jurisdiction in subsequent laws such as the UCCJEA and the PKPA. The UCCJA states the following:
“a court may exercise emergency jurisdiction if the child is physically present in the state and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected.”
On its face, the UCCJA permits courts to exercise emergency jurisdiction only when a child has been mistreated or abused, not when another person, such the child’s parent, has been abused. However, in many states, when the UCCJA was the state’s law, courts interpreted emergency jurisdiction to cover domestic violence cases in which a parent was abused.2 This interpretation developed based on the knowledge that children who witness one parent abusing another parent suffer harm even if the children are not abused physically.3 Some state versions of the UCCJA extend the statutory definition of emergency jurisdiction explicitly to cover such cases,4 but in the majority of states, it is case law that defines emergency jurisdiction to include such domestic violence cases. As a result, careful statutory and case law research is required to determine the parameters of emergency jurisdiction.
Should a domestic violence survivor flee across state lines with children without obtaining a protection order first? There are a number of factors to consider prior to flight across state lines with children. First and foremost, a survivor will need to evaluate what will keep her and the children safe. If she believes that the perpetrator will kill her if she does not leave the state, and that no intervention by law enforcement officers, prosecutors, judges, advocates, or community members can prevent this, this expectation must guide her decision-making. Her decision also will be affected by the protections available in each state, such as family support, economic and employment opportunities, and the reliability of systemic responses to domestic violence. Understanding the laws related to jurisdiction, relocation, and flight across state or tribal lines is a critical part of assisting survivors to make decisions about their safety.
The following legal considerations should be taken into account.
What type of parental kidnapping, custodial interference, or child concealment law does the original state have? A survivor should understand how state law defines parental kidnapping or related crimes. In some states, as long as there is no court order in effect, either parent is entitled to take the child. In other states, even if there is no custody order in effect, removing the child and depriving the other parent of contact with the child is a criminal offense.
Is there any defense or exemption related to domestic violence that could protect the survivor from criminal charges if she flees across state lines with the children? There are a variety of state law exemptions or affirmative defenses to parental kidnapping charges. Some state laws specifically include flight from domestic violence as an exemption5 or as an affirmative defense.6 A few laws permit flight but require survivors to meet conditions such as making a report to a district attorney and commencing a custody case within a particular time frame.7 Others permit flight to protect the parent8 or the child from imminent harm.9 Still others have a general “good cause” defense10 or rely on the criminal defense of “necessity.”11 Prior to fleeing with children, survivors should know whether they may rely on any exemptions or defenses to protect them in criminal cases. Otherwise, they could end up in jail and lose their children. Of course, survivors are likely to require legal counsel to avail themselves of any available legal protections in court or in negotiations with prosecutors. What type of relocation statute does the state have? State civil laws also vary as to whether they permit a parent who has custody of the child to leave the state and under what circumstances.12 Depending on the state’s relocation law and the usual court rulings in the state, a survivor may wish to ask permission from the court prior to relocating. Careful statutory and case law research is necessary to understand the parameters of such laws.
Would the survivor be violating a court order by fleeing? Courts generally disfavor parties who violate existing court orders. In this context, where possible, survivors should ask a court to modify an existing custody or visitation order prior to flight. If no order exists, a survivor may not wish to obtain a protection order that would give visitation to the perpetrator since she then would need to “violate” the visitation schedule ordered by the court if she flees with the children.
Is a protection order against the perpetrator likely to be effective? If a survivor believes that the perpetrator would comply with a protection order and cease the violence, the order could be very helpful. In addition to deterring future violence, in most states, the court may award temporary custody to the survivor, establish a child support payment plan, and require ancillary relief, such as the relinquishment of firearms, to protect the survivor. Studies have found protection orders to be a useful deterrent to violence in most cases. In some cases, a perpetrator may view the filing of a protection order as a survivor’s attempt to separate, ending the perpetrator’s ability to control the survivor. Such perpetrators may commit “separation violence,” making this time period very dangerous for survivors. In addition, in cases where survivors have been in hiding, filing for a protection order may notify a perpetrator that the survivor lives in a particular area,13 endangering her safety.
Is a protection order likely to be helpful in proving a history of violence in the future? If the issuing court understands domestic violence, a protection order could be very helpful to the survivor if she needs to document the history of abuse. For example, if she is charged with parental kidnapping when she flees across state lines, the existence of a protection order from the original state can help prove that she fled to escape abuse, not to abscond with the children. A protection order that includes findings of abuse also may be helpful in states where courts must consider domestic violence in making custody determinations.
How have courts in each of the states handled interstate custody cases involving domestic violence previously? It may be useful to know whether courts in the original state tend to penalize survivors of domestic violence in custody cases for flight across state lines.
Do the states have different child custody jurisdictional statutes? Because the UCCJEA contains more protections for domestic violence survivors than the UCCJA, a survivor may want to know which jurisdictional law has been enacted in the original state and in the refuge state. A court in a refuge state that has enacted the UCCJEA, for example, may be more willing to exercise emergency jurisdiction in a domestic violence case, which could help a survivor who has fled across state lines with no custody or protection order.
Do the states have different custody laws related to domestic violence? Custody laws vary, and one state may consider domestic violence to a greater degree in custody decisions. This legal standard could be important for a survivor to know prior to flight.
Do the states have different laws protecting the confidentiality of information about domestic violence survivors? If a domestic violence survivor needs to have identifying information (such as her address or telephone number) kept confidential for safety reasons, she should be aware of what the different states’ laws require with respect to confidentiality.
Do the states have different forms of economic relief available to survivors? Survivors may wish to consider whether one state provides greater access to economic relief than another. For instance, one state may have transitional housing programs for survivors, more generous public assistance eligibility rules, or better insurance or employment laws with respect to domestic violence.
Is legal assistance more accessible in a particular state? Survivors may need to know whether pro bono or sliding scale legal representation is more available or more effective in a particular state, since they may need assistance with a range of legal needs. Similarly, legal services organizations or domestic violence programs may have more generous eligibility standards in certain states.
When can a court modify a custody or visitation order issued by a court in another state? The PKPA gives continuing jurisdiction to the state that issued an initial custody determination consistent with the PKPA.14 The issuing state retains jurisdiction as long as it has jurisdiction under state law and at least one parent or the child continues to live there. A court may modify a custody or visitation order from another state only if 1) it has jurisdiction to do so, and 2) the court of the initial state no longer has jurisdiction or has declined to exercise it.
For example, assume that a court in Texas issued a custody order consistent with the PKPA, and then the father moved to California and asked a court to modify the Texas order. The California court may not modify the Texas order if the mother or children continue to live in Texas. However, if a Texas court declines to exercise jurisdiction, and if California has a basis for jurisdiction, such as a significant connection with the child, then a California court may be able to exercise jurisdiction and modify the Texas order.
1 The PKPA does not define “jurisdiction under the law of such State.” It is likely that when the PKPA was enacted in 1980, this provision referred to the UCCJA, and that it now includes the UCCJEA. Some advocates have argued, however, that “jurisdiction under the law of such State” could refer to a state’s protection order statute. Courts have not ruled yet on such an argument.
2 See, e.g., Dean v. Crane, 702 N.Y.S.2d 544 (2000) (holding that where Colorado was the home state, New York was entitled to exercise emergency jurisdiction because the child had been exposed repeatedly to acts of serious domestic violence visited upon the mother); Cole v. Super. Ct., 28 Cal. Rptr. 905 (Cal. Ct. App. 1985) (finding that emergency jurisdiction could be exercised where father abused other and one child, even when the children who were the subject of the custody case had not been abused); Farrell v. Farrell, 351 N.W.2d 219 (Mich. Ct. App. 1984) (finding that court could exercise emergency jurisdiction where perpetrator abused victim).
3 See, e.g., Bonnie E. Carlson, Children of Battered Women, in Albert R. Roberts, Ed., Helping Battered Women: New Perspectives and Remedies (1996).
4 See, e.g., Nev. rev. Stat. § 125A.050, 1(c)(2)(II).
5 See, e.g., Fla. Stat. Ch. 787.03(6)(a)(b)(2002).
6 See, e.g., 720 Ill. Comp. Stat. 5/10-5(c)(3)(2001).
7 See, e.g., Cal. Pen. Code § 278.7(c)(2003).
8 See, e.g., Idaho Code § 18-4506(2)(b)(2002).
9 See, e.g., Idaho Code § 18-4506(2)(a)(2002).
10 See, e.g., Haw. Rev. Stat. § 707-726(2)(2001).
11 See, e.g., Gerlach v. State, 699 P.2d 358 (Alaska Ct. App. 1985) (defining necessity defense).
12 See Janet M. Bowermaster, Relocation Custody Disputes Involving Domestic Violence, 46 Kan. L. Rev. 433 (1998).
13 This can happen because protection orders require the respondent to be served and provided with an opportunity to be heard.
14 Note that the UCCJEA is consistent with the PKPA’s rule regarding exclusive, continuing jurisdiction, while the UCCJA is less clear and has been interpreted differently in various states.
Other tools in this series include case law summaries and concise summaries of the relevant statutes. For copies of these tools or for technical assistance, please call (800) 256-5883, ext. 2 or (202) 265-0967, ext. 2.