Lawyers Manual - Unified Court System

104 Liberty Aldrich and Lauren Shapiro
Parental Kidnapping Prevention Act of 1980
The Parental Kidnapping Prevention Act (PKPA) 22 is a federal law passed
in 1980 in response to the problem of parents who flee a state jurisdiction to
avoid custody disputes. It establishes a national system for locating the parents
and children and national standards for deciding these disputes. One of the
principle reasons for enacting the UCCJEA was to conform New York law more
closely to the PKPA. Specifically, the UCCJEA reinforces the PKPA’s handling
of emergency jurisdiction and continuing jurisdiction. Now that New York has
enacted the UCCJEA, state and federal law are largely consistent.
The PKPA remains useful in interstate custody cases principally to resolve
conflicts with the minority of states that have not yet adopted the UCCJEA. The
PKPA was amended by the Federal Violence Against Women Act (2000), which
explicitly extended full faith and credit of orders of protection, including
custody orders within orders of protection, issued by other states, ensuring that
courts could not relitigate domestic violence findings.
Criminal Charges/Kidnapping and Custodial Interference
Many abusers threaten to bring criminal charges against their victims, and
many victims of domestic violence are concerned about the criminal
consequences of fleeing with their children. While such charges are rare and the
threats on the part of the abuser may be part of a pattern of control, it is
important to know and advise clients of the possible criminal consequences of
leaving the jurisdiction.
It is extremely unlikely that your client would be charged with kidnapping.
A person is guilty of kidnapping in the second degree when he or she abducts
another person, 23 but it is an affirmative defense to kidnapping that “the
defendant was a relative of the person abducted, and his sole purpose was to
assume control of such person.” 24
The charge of custodial interference is designed to fill the gap created by
this affirmative defense. It is possible, therefore, that litigants in a custody case
could face a criminal charge of custodial interference. Custodial interference in
the second degree, a class A misdemeanor, is established by showing that a
relative of a child under 16 acted with intent to hold that child permanently or
for a protracted period and knowingly without right took the child from his or
her lawful custodian. 25 Custodial interference in the first degree, a class E
felony, includes all elements of the second-degree offense plus the added
elements that the perpetrator acted with intent to remove the child from the state
and removed the child from the state or exposed the child to risk of harm. 26