Parental Kidnapping

PARENTAL KIDNAPING (ARCHIVED--08/25/82) I S S U E B R I E F NUMBER IB77117 AUTHOR: McCoy, M e r e d i t h A m e r i c a n Law D i v i s i o n T H E L I B R A R Y OF C O N G R E S S CONGRESSIONAL RESEARCH SERVICE MAJOR I S S U E S S Y S T E M D A T E O R I G I N A T E D 11/14/77 D A T E U P D A T E D 08/25/82 F O R A D D I T I O N A L I N F O R M A T I O N C A L L 287-5700 0128 CRS- 1 ISSUE DEFINITION Parental kidnaping may be defined as the act of one parent taking, stealing, abducting, kidnaping, decoying, detaining, or enticing a child away from the other parent or guardian who has lawful custody, or control over the child. This act may occur either prior to a custody determination in a sther spouse. The eivorce a c t ~ o n9r after custody has been awardee to t n e spouse who either has lost custody already, or fears that such loss of custody is imminent, simply transports the child to another jurisdiction. There is no question that the Child caught i n the middle of such a protracted struggle can suffer deleterious consequences. Child-snatching cases are increasing rapidly in the United States to perhaps 25,000 to 100,000 a year, Sut presently there are no Federal remedies available. BACKGROUND AND POLICY ANALYSIS Federal Statute The Federal Kidnaping Act, 1 8 U.S.C. 1201, explicitly exempts parents from it3 sanctions. This Act, also known as the Lindbergh Act, was adopted originally by Congress i n 1932, and made it an offense to knowingly transport i n interstate or foreign commerce a person who had been kidnaped for ransom or reward, and was amended in 1934 to extend its application to the transport of persons kidnaped for any reason, not just for ransom or reward. At the same time, Congress provided for the parent exemption. The sparse legislative history on this issue shows that the parent exemption was inserted very deliberately. The original 1 9 3 2 law made it a n offense to transport in interstate or foreign commerce any person who had been Unlawfully seized, kidnaped, etc., by any means and held for ransom, reward, or any other unlawful purpose. Rep. L.C. Dyer proposed to amend the bill to delete the words "or any other unlawful purpose" for the reason that unless the w o r d s a w e r e deleted, parental kidnaping would be included, and "there is not anybody who would want to send a parent to the penitentiary for taking possession of his or her own Child, even though the order of the court was violated and it was a technical kidnaping." (See entry in Congressional Record, June 1 7 , 1932, i n REPORTS.) In 1934 the Lindbergh Act was amended by an Act of May 1 8 , 1 9 3 4 , to apply to the knowing transport of persons kidnaped not only for reward or ransom, but for any reason except, specifically, parental kidnaping. The committee report on the bill, as amended (H.Rept. 1457, 73d Congress, 2d session (1934)), did not explain the purpose o f the parental kidnaping provision, merely stating that "this amendment will extend Federal jurisdiction under the act to persons who have been kidnaped and held, not only for reward, but for any other reason, except that a kidnaping by a parent of his child is specifically exempted." The foregoing is an encapsulation of the legislative history of the Federal Kidnaping Act, particularly as it pertains to the parent exemption provided by the 1934 amendment. The history, such as it i s , reflects the desire of Congress to explicitly exclude parents from the criminal sanctions of the law. This exemption was recognized in Miller v. United States, 123 F.2d 715, 716 (8th Cir. 1941), aff'd. 1 3 8 F.2d 258 (8th Cir. 1943), where the CRS- 2 1877117 U P D A T E - O ~ / ~ ~ / ~ C o u r t o f A p p e a l s s t a t e d I' t h e r e c o r d s o f the domestic r e l a t i o n s courts throughout t h e Nation a r e r e p l e t e with i n s t a n c e s where, when domestic d i f f i c u l t y a r i s e s , p a r e n t s , because of a f f e c t i o n f o r t h e i r C h i l d r e n , i n v e i g l e o r s p i r i t them away. I n absence of t h e e x c e p t i o n , such person might s u f f e r I t may t h e c o n d e m n a t i o n o f t h e s t a t u t e if i n t e r s t a t e commerce w e r e i n v o l v e d . c a s e s when the b e t h a t C o n g r e s s was p r i m a - r i l y c o n c e r n e d w i t h t h i s c l a s s o f e x c e p t i o n was f r a m e d . " T.?e I s s u e Secause of the potential Parental kidnaping i s a problem, but not j u s t psychological s c a r r i n g of t h e people ~ n v o l v e d . In t h e p a s t , t h e S t a t e courts c o u l d n o t c o p e W i t h t h e d e m a n d s f o r r e d r e s s b y t h e ? a r e n t f r o m whom t h e c h i l d i s t a k e n f o r s e v e r a l r e a s o n s : (1) many S t a t e s d i d n o t h a v e l a w s o n t h e b o o k s a v a i i a b l s t o c o v e r t h e s i t u a t i o n ; ( 2 ) t h e S t a t e w h e r e t h e c h i l d was t a k e n d i d n o r h a v e t o r e c o g n i z e t h e c u s t o d y d e c r s e of :he f i r s = Stace and could award i t s own c u s t o d y d e c r e e a s i t saw f i t ; a n d ( 3 ) the laws that existed then Often proved unenforceable. P r e s e n t l y , t h e F e d e r a l c o u r t s o f f e r no h e l p to the b e r e f t parent because t h e Federal Kidnaping Act contains a specific exemption f o r p a r e n t a l kidnaping. Many S t a t e s , however, a r e now e q u i p p e d w i t h a n e n t i r e Spectrum of r a n g i n g from t h e s t a t u t e s , a p p l i c a b l e o r i n a p p l i c a b l e , a s t h e c a s e may b e , b a s i c k i d n a p i n g s t a t u t e , which sometimes i n c o r p o r a t e s t h e o f f e n s e i n t o t h e d e f i n i t i o n a l s e c t i o n of " r e s t r a i n t , " t o p r o h i b i t i o n s a g a i n s t c h i l d stealing, t o s t a t u t e s providing f o r t h e imposition of c r i m i n a l p e n a l t i e s f o r v i o l a t i o n of o r i n t e r f e r e n c e w i t h l a w f u l custody o r d e r s . A s u b s t a n t i a l number of S t a t e s have enacted l e g i s l a t i o n t o d e a l with t h i s problem, t h e most common Although there approach being t h e use of a custodial interference s t a t u t e . i s o f t e n no v i o l a t i o n of a c u s t o d i a l i n t e r f e r e n c e s t a t u t e where a p a r e n t absconds with t h e c h i l d i n a n t i c i p a t i o n of an adverse custody decree, s t a t u t o r y p r o v i s i o n s p r o h i b i t i n g r e l a t e d o f f e n s e s s u c h as c h i l d s n a t c h i n g , f a l s e i m p r i s o n m e n t o r u n l a w f u l r e s t r a i n t may a p p l y . I n a few jurisdictions, parents are specifically exempted from t h e a p p l i c a t i o n of the statutes prohibiting kidnaping o r related offenses. Where t h e r e i s n o a p p l i c a b l e s t a t u t e a t a l l r t h e S t a t e s , t h e C o U r t ~ ,a n d t h e p a r e n t s a r e l e f t w i t h o u t a l e g a l remedy. i s a l s o one of t h e problems The f a c t t h a t S t a t e laws v a r y s o w i d e l y s u r r o u n d i n g t h i s i s s u e , e x a c e r b a t e d by t h e f a c t t h a t e v e n w h e r e two S t a t e s a p p r o a c h t h e s i t u a t i o n i n a s i m i l a r f a s h i o n , t h e p e n a l t i e s may d i f f e r . For e x a m p l e , c u s t o d i a l i n t e r f e r e n c e may b e a " C l a s s D l t o r " C l a s s E w f e l o n y i n o n e S t a t e and a g r o s s misdemeanor i n a n o t h e r S t a t e . The i m p o r t a n c e o f this d i s t i n c t i o n l i e s i n t h e u s e of the various statutes t o invoke Federal extradition and Federal f u g i t i v e felon provisions. For example, both the U n i f o r m C r i m i n a l E x t r a d i t i o n A c t ( S e c t i o n 2 ) a n d F e d e r a l l a w , 1 8 U.S.C. 3 1 8 2 , speak i n terms of " t r e a s o n , f e l o n y o r o t h e r crimew a s p r o v i d i n g grounds f o r extradition. A l t h o u g h t h e c a s e s s u g g e s t t h a t m i s d e m e a n o r c h a r g e s may f o r m t h e basis f o r e x t r a d i t i o n , s e e e . g . , G l o v e r v. State, 257 Ark. 241, 515 S.W.2d 6 4 1 ( 1 9 7 4 ) ; a n d G r a h a m v . S t a t e , 2 3 1 G a . 8 2 0 , 2 0 4 S . ~ . 2 d 6 3 0 (1974), s o m e S t a t e s may b e m o r e i n c l i n e d t o u t i l i z e extradition in felony cases. Most o f t h e c h i l d s t e a l i n g s t a t u t e s a p p l y o n l y t o c h i l d r e n under a c e r t a i n age, r e s u l t i n g i n a l e g a l gap i f t h e abducted c h i l d i s an older adolescent. A n o t h e r c o m p l i c a t i n g f a c t o r i s t h e h e s i t a n c y of t h e Supreme C o u r t t o a p p l y t h e F u l l F a i t h and Credit Clause t o custody decrees. The F u l l ~ a i t h a n d provides Credit Clause, found i n A r t i c l e I V , Section 1 of t h e Constitution, CRS- 3 IB77117 ~~D~~~-08/25/ in part that "Full faith and credit shall b e given in each state to the public acts, records and judicial proceedings of every other state." However, this clause has been construed to require a State to recognize only final orders of the courts of other States, and custody orders are not considered final orders, being nearly always subject to modification in the interest of the child's welfare. The few Supreme Court decisions even touching on the subject of parental kidnaping turn on the full faith and credit issue. In Halvey v. Halvey, 3 3 0 U.S. 510 (1947), which involved a cnstoey baztle over the abduction of a Justice child by the father from Florida to New York, he Court, through Mr. Douglas, "declared to do as little as possible," and held that since the decree was modifiable in Florida, it also couid be modified i n New York, stating that "a judgment has no constitutional claims to a more conclusive or final effect in the state of the former than it has in the state where May v. (i958).) In rendered." (See also Kovacs v. Brewer, 356 U.S. 6 0 4 Anderson, 345 U.S. 528 (1353), t h e Court aealt with the extent of recognition required to be given a custody decree rendered by another State without personal jurisdiction over the defendant mother. The majority opinion, sidestepping the full faith and credit issue, held that parental custody was a personal right that could not be taken without personam jurisdiction over the parent. The Supreme Court's most recent effort was Ford v. Ford, 371 U.S. 1 8 7 (1962), in which a Virginia dismissal of a custody case pursuant to a parental agreement was held not binding on a South Carolina court, where one of the parents sought to modify the agreement. There are a number of proposed solutions to the problem of parental kidnaping, but they are all limited or inadequate in some way, either legally or practicably. One method, involving neither the passage of new legislation nor movement by the Federal Government into an area traditionally left to the States, i s for the State courts to apply the "clean handsw doctrine to any person appearing before them seeking to obtain custody over a child. This common law doctrine would preclude anyone from obtaining a custody decree from a court if that person has gained control of the child in violation of a custody order issued in another State. The obvious limitation to this method is its unenforceability. As long a s it is i n the judge's discretion whether to grant jurisdiction, there will be some use of that discretion, resulting in the denial of certain protection for the custodial parent. A second means of combating the problem i s for States to give full faith and credit to sister States' custody decrees. Although Congress has enacted a law requiring such recognition in certain circumstances, basic policy questions a r e still left unresolved, such as the desirability of non-modifiable custody decrees, which would conflict with the doctrine t h e Supreme Court in the aforementioned cases that asserted by non-modifiability may not be in the best interests of the child because there is always a possibility of changed circumstances. This law also represents further Federal intrusion upon matters traditionally left to the States. A third solution, already enacted in 4 7 States, is adoption of the Uniform Child Custody Jurisdiction Act. (Texas has passed an equivalent statute; however, it is not identical to the UCCJA.) This uniform law, adopted by over four-fifths of the States, provides under Section 8 of the Act, that one who has abducted a child from another State or has indulged in other reprehensible conduct is precluded from obtaining an order modifying the extant custody order from another State, thus embodying the "clean handsw CRS- 4 doctrine. The operational difficulty of this provision i s that the c o u r t may decline to exercise jurisdiction only if it is "just and proper under the circumstances," and therefore, the court is still permitted a wide r a n g e of discretion under a vague and ambiguous standard. Although such discretion may be necessary due to the nature of the interest involved, vagueness and ambiguity d o not serve the purpose of uniform application of the Act. Section 1 3 of the Act makes mandatory the recognition and enforcement by a sister State of .a custody decree of a foreign court which had assumed jurisdiction under the provisions of the Act or has issued it under standards similar thereto, in effect, declaring that full faith and credit will be given to a valid out-of-srate decree a s long a s the requirements of notice and opportunity to be heard are met. This Act particularly speeded up. Latitude and and contains goes a long way towards achieving a workable solution, since its acceptance and recognition rate by the States has However, i t contains provisions allowing for a great d e a l of flexiSility, thus, at times making it less than fully effective n o criminal sanctions to be applied to the parents. A fourth possible solution i s to amend the Federal Kidnaping Act by either eliminating the exemption that now exists for parents or inserting a provision making parental kidnaping a separate offense. The consitutionality of the existing statute i s well established a s coming under the power of Congress to regulate interstate commerce. T h e statute creates a presumption o f transporting in interstate or foreign commerce where 24 hours after he the abductor fails to release the kidnap victim within shall have been unlawfully seized, confined, inveigled, decoyed, k i d n a p e d , abducted, o r carried away (18 U.S.C. 1201(b)). Any legislation that merely repeals the parental exemption may lead to anomalous results. If the child i s taken from a parent with judicially awarded custody, the abducting parent might still be a b l e to gain lawful custody i n a non-UCCJA State through a modification of the a w a r d , while being charged with the Federal criminal offense of kidnaping. If there has been no court-awarded custody, application of the Lindbergh Act completely contravenes the general rule that in absence of a custody decree, such takings a r e not considered kidn'apings. Perkins, Criminal L a w , p. 1 8 1 (26 ed. 1969). Amending the Act to make parental kidnaping a separate offense d o e s not leave the statute open-ended, and allows the framers to define the offense a s narrowly or broadly a s desired, according to the prevailing policy. Although a number of conflicting policies surrounded the enactment of Federal legislation a widespread belief existed that the issue n e e d e d . t o b e addressed by the country's lawmakers because of the potential damage to the mental and emotional well-being of anyone involved i n a kidnaping incident. Parental kidnaping interferes with the custodial rights of the parents, infringes upon the personal liberty of the child, and obstructs the administration by the courts of lawfully ordered custody decrees. Abduction by a parent inflicts emotional trauma on the other parent a s does kidnaping by a third party, and t h e gravity of the offense i s reflected i n those State statutes prohibiting child -stealing and interference with custody. In most instances violation of either type of statute is a felony, unless there are extenuating circumstances, such as returning the child or never leaving the State. An excellent example of a State law governing child-snatching is North Carolina General Statutes Sec. 14-320-1. This section specifically CRS- 5 1 ~ 7 7 1 1 7 UPDATE-08/25/82 states that anyone who transports, or causes to be transported, a child under the age of sixteen outside the boundaries of North Carolina with the intent to violate a custody order issued by a North Carolina court shall be guilty of a felony. Such crime is punishable by imprisonment for not more than three years. The statute also stipulates that keeping a child outside of North C a r o l i n a - i n violation of a custody order for an excess of 72 hours is prima facie evidence of an intent to violate that order. On Dec. 1 3 , 1980, in the final hours of the 96th Congress, the House of 3406, a S i l l to Representatives concurrad iz '3e S + n a t e t s amendnents to 3 . 8 . provide for Medicare coverage of pneumococcal vaccine. One of these amendments, attached as sections 6 to 1 0 of the bill, was the "Parent Kidnaping Prevention Act of 1980." This legislation, introduced earlier as S. 105 by Senator Wallop, mandates that full faith and credit be given to prior custody orders havlng jurisdiction under provisions of the Uniform Child Custody Jurisdiction Act. Enacted as P.L. 96-611, it also authorizes a State Court that meets speczfled condiclons t 3 modlfy a custody d e t e r m i n a t ~ c n of another State court Which no longer has, or has declined to exercise, jurisdiction. In addition, the Act amends title I V (Child Support and Establishment of Paternity) of the Social Security Act to include as a function of the Parent Locator Service the provision of information to authorized persons about any absent parent or child for the enforcement of a child custody determination or with regard to parental kidnaping. Finally, the Act expressly declares the congressional intent that 1 8 U.S.C. 1073 (The Fugitive Felon Act) apply to cases involving parental kidnaping and interstate or international flight to avoid prosecution under applicable State felony statutes. This section will have the effect of allowing the FBI to help apprehend parental abductors by giving Federal l a w enforcement authorities the power to investigate child stealing cases. For example, where a child has been taken from one State to another, the first State may apply to a United States attorney's office for a Federal fugitive felon warrant. The Act took effect on July 1 , 1981. With respect to applying the Fugitive Felon Act to state felony parental kidnaping cases, a question has been raised a s to whether the Department of Justice is properly complying with the expression of c o n g r e s s i ~ n a l intent. Under Justice Department guidelines, "independent credible information establishing that the child is in physical danger or is being seriously abused or seriously neglectedff i s required before intervention will be authorized in parental kidnaping cases. On Oct. 2 1 , 1981, Senator Wallop introduced S. 1759, which would require elimination of any such guidelines and would prohibit otherwise limiting the application of 1 8 U.S.C. 1073 to State felony parental kidnaping cases in a manner that might frustrate congressional intent as expresses in the Parental Kidnaping Prevention Act of 1980. With respect to proposed criminal sanctions, the conventional justifications for maintenance of the status quo in the Federal area appear to dominate, since the criminal sanctions of the original bill, S. 1 0 5 , were not adopted a s part of P.L. 96-611. S. 105 would have amended 1 8 U.S.C. 1201 to make interstate child snatching by parents and others a Federal criminal offense. This provision was not enacted on the theory that Federal criminal sanctions may not act a s a deterrent to a determined parent anymore than a comparable state statute. ~ r o m the perspective of law enforcement authorities, the maintenance of familial peace through enforcement of CRS- 6 c r i m i n a l p r o h i b i t i o n s may b e b e s t l e f t t o t h e S t a t e s , w h i c h h a v e g r e a t e r more i m m e d i a t e a c c e s s t o t h e n e e d e d f a c t s . and LEGISLATION S. 1759 (Cranston and Wallop) 1980 (P.L. 96-611) by Amends t h e P a r e n t a l K i d n a p p i n g P r e v e n t i o n A c t o f 1 0 7 3 , t h e F u g i t i v e F e l o n Act, a p p l i e s to a d d i n g a d e c l a r a t i o n t h a t 1 8 U.S.2. a l l S t a t e f e l o n y p a r e n t a l k i d n a p i n g c a s e s w i t h o u t r e s t r i c t i o n a n d i n c h e same manner a s t o a l l o t h e r s t a t e f e l o n y c a s e s . In addition, the Justice Department s h a l l e l i m i n a t e a l l g u i d e l i n e s t h a t r e q u i r e i n f o r m a t i o n that the c h i l d i s i n physical danger o r i s neglected, corroboration o r p r i o r approval, o r o t h e r w i s e l i m i t t h e a p p l i c a t i o n of s e c t i o n 1073 i n S t a t e felony parental kidnapping cases. H.R. 5019 (Hughes) Comparable t o S. 1759. HEARINGS U.S. Congress. House. C o m m i t t e e on t h e J u d i c i a r y . Subcommittee H e a r i n g s , 9 3 6 C o n g r e s s , 26 s e s s i o n , o n H.R. 4191 and H.R. 8722, amendments t o t h e F e d e r a l k i d n a p p i n g statute. W a s h i n g t o n , U.S. Govt. P r i n t . O f f . , 1974. 1 1 7 p. H e a r i n g s h e l d Feb. 27 a n d Apr. 1 0 , 1 9 7 4 . on Crime. ----U.S. Parental kidnaping. H e a r i n g s , 9 6 t h C o n g r e s s , 2d s e s s i o n , 1290. J u n e 24, 1980. W a s h i n g t o n , U.S. Govt. P r i n t . on H . R . Off., 1980. Congress. Senate. Committee on t h e J u d i c i a r y . Subcommittee o n L a b o r a n d Human R e s o u r c e s . S u b c o m m i t t e e on C h i l d a n d . H u m a n D e v e l o p m e n t . Joint hearings, 9 6 t h C o n g r e s s , 26 s e s s i o n , on t h e P a r e n t a l K i d n a p p i n g P r e v e n t i o n A c t o f 1 9 7 9 , S. 1 0 5 . W a s h i n g t o n , U.S. G o v t . P r i n t . O f f . , 1 9 8 0 . Hearings held Jan. 30, 1979. on Criminal Justice./Committee U.S. Congress. Senate. C o m m i t t e e o n L a b o r a n d Human R e s o u r c e s . S u b c o m m i t t e e o n C h i l d a n d Human D e v e l o p m e n t . Hearings, 96th C o n g r e s s , 1st s e s s i o n , o n e x a m i n a t i o n of t h e p r o b l e m of "child snatching." W a s h i n g t o n , U.S. G o v t . P r i n t . O f f . , 1 9 7 9 . H e a r i n g s h e l d Apr. 1 7 , 1 9 7 9 . REPORTS A N D CONGRESSIONAL DOCUMENTS F e d e r a l K i d n a p i n g A c t amendment. Congressional record, v. 75, U.S. I n Remarks o f L.C.Dyer. p a r t 1 2 , June 17, 1932: 13296. Congress. House. Conference Committee, 1980. Domestic Violence Prevention and Services A c t . W a s h i n g t o n , U.S. Govt. P r i n t . O f f . , 1980. ( 9 6 t h C o n g r e s s , 2d s e s s i o n . House. R e p o r t n o . 9 6 - 1 4 0 1 ) S e e t i t l e 111. CRS- 7 U.S. IB77117 U P D A T E - O ~ / ~ ~ / Congress. House. Committee on the Judiciary. To amend the Kidnaping Act; report to accompany S. 2252. House. Report no. (73d Congress, 2d session 1934 1457, 73d Congress) . U.S. Congress. Senate. Committee on the Judiciary. To amend the Act forbidding the transportation of kidnapped persons in interstate commerce; report to accompany S. 2252. (73d Congress, 2d session 1934 . Senate. Beport 20. 534, 73d Congress! ADDITIONAL REFERENCE SOURCES Bodenheimer, Brigitte M., Jurisdiction Over Child Custody and Adopclon After Shaffer and Kulko, 12 University of Californ-a at Davls Law 4eview 229 (1979). ----- Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, 1 4 Family Law Quarterly (1981). Kutun, Barry; and Roberta Fox, Closing the Custody Floodgate: Florida Adopts the Uniform chiid Custody Jurisdiction Act, 6 Florida State University Law Review 409 (1978): Martin, Kerri L., Federal Habeas Corpus in Child Custody Cases, 67 Virginia Law Review 1423 (1981). Moran, J., The Uniform Child Custody Jurisdiction Act: an analysis of its history, a prediction of its future. 84 Western Virginia Law Review 135 (1981). Note, Jurisdiction Guidelines in Matters of Child Custody: Kansas Adopts the Uniform Child Custody Jurisdiction Act, 27 Kansas Law Review 469 (1979). - Note, Parental Kidnapping Prevention Act of 1980 An Idea Whose Time Has Come, 2 Children's Legal Rights Journal 10 (1981). Note, Stemming the Proliferation of Parental Kidnapping: New York's Adoption of the Uniform child Custody Jurisdiction Act, 4 5 Brooklyn Law Review 8 9 (1979). Note, The Parental Kidnapping Prevention Act of 1 9 8 0 - An End to Child Snatching, 8 Journal of Legislation 357 (1981). Pettenati, Jeanne K., The Effect of the Parental Kidnapping Prevention Act of 1980 On Child Snatching, 1 7 New England Law Review 499 (1981). Shutter, Steven G., Parental Kidnapping Prevention Act - Panacea or Toothless Tiger? 5 5 Florida Bar Journal (1981). Young, W., Parental Child-Snatching Out of a No-man's of Law, 3 St. Mary's Law Journal 337 (1981). Land