Parental Kidnapping

[Davy]

I adamantly agree with every word from Gemini.

Based on the OP, it certainly appeared matters were progressing even though it had drugged out for 7 months.  I had
hoped the OP would respond to what he had been advised as to the return of the children which is the only thing that matters - not the extradiction.

In the matter cited by Gemini, like the OP, the existing custody order carries with it "full faith and credit" meaning it is valid and executable in any jurisdiction which is the reason the father was able to act responsibly with dignity for the children.  Fortunately, the authorities in the foreign jurisdiction were sophisticated enough to respect the custody order and that does not always happen. 

What should happen (and they took an oath to protect the family) is for the home state authorities to arrest and detain the mother with coordination for the children to be graciously returned to the father ... far more rational and civil.

It is the abscounding non-compliant parent that is causing great harm ro the children.

[mdegol]

Don't worry about a new status quo. She is doing something criminal (custodial interference) and no judge will reward that behavior! If you don't know the address and have no way to contact the mother or children, that is kidnapping, and you should contact the center. Same as if on a visit a parent never came back with kids. They should put out a missing children poster with the pictures of mother also and date that they disappeared, I have seen posters many times where non-custodial parent took off with a child. If that is not kidnapping, I don't know what is. Somebody has to get the ball rolling here.

If you know her address, I don't see why you can't call the police in her area and see if they will cooperate with you to get your children. It will save you the trip if they won't and tell you that over the phone, but it would be the fastest (although perhaps traumatic, but I don't think you can do anything about that). Plus they might point you in the right direction. As far as residency, they aren't establishing residency because they are being unlawfully detained "against their will" (your will really, but you are the custodian so you determine their will).

But...different states have different procedures for enforcement of child custody agreements from across state lines. It may be worth it to look up her states procedures. Your state seems to use contempt hearings, but the other state may use a writ of habeas corpus, which I have heard is faster...I think. There is a new interstate child custody law that makes enforcement of a custody order across state lines much clearer (and it uses a writ), but it has only been adopted in three states. If she lives in one of those (MA, VT or NH 2010) things might be faster...in any case, some states have better procedures than others. Under the current law, enforcement is vague, thus why you are getting a lot of different advice. Depending on the local authorities, state procedures (maybe even the particular officer that you get on the phone) ect, will determine which of the advice would work the best in your situation. I would take the comment you heard about her DA with a grain of salt, because it might just depend on his mood that day, and he might just help you out too. Where are you and where are they?

[gemini3]

different states have different procedures for enforcement of child custody agreements from across state lines. It may be worth it to look up her states procedures. Your state seems to use contempt hearings, but the other state may use a writ of habeas corpus, which I have heard is faster...I think. There is a new interstate child custody law that makes enforcement of a custody order across state lines much clearer (and it uses a writ), but it has only been adopted in three states. If she lives in one of those (MA, VT or NH 2010) things might be faster...in any case, some states have better procedures than others.

I think you may have mis-read an old article regarding the UCCJA.  The "new" law that you're referring to is the UCCJEA, which was enacted in 1997.  Since it's enactment, all states except MA and VT have adopted it, and they are expected to do so in 2010.

The UCCJEA would be of consequence if the BM had filed for a change of custody in the state where she resides.  She has not.  She is merely concealing the children in defiance of a signed custody order.  Therefore her behavior, and the enforcement of the custody determination falls under the provisions of the PKPA - a federal law that was enacted in 1980.

He has every right to go and get the kids.  Unless the BM files in her state for a modification, and her state decides to challenge his states jurisdiction, he does not have to answer to her state at all.  If she were to file in her state, then he will have to hire a lawyer in her state to challenge jurisdiction under UCCJEA.  As it stands, this is not an issue of jurisdiction, it is an issue of enforcement.

[mdegol]

Ah, perhaps I have...I live in MA and I knew it was a mess here , so that actually makes more sense... A lawyer's website totally explained it wrong, and I should have expected that since it was a MA lawyer...I have noticed here if you talk to 3 different lawyers you get 3 completely different answers....

[Davy]

For sake of clarity.  The standard foundation UCCJA is a "uniformed" act initiated in 1968 to be enacted in ALL states.  As state legislatures implemented they dropped sentences, "or" "and" etc that defeated it's uniformity but overall the purpose remained intact.  Attorneys love to argue points, cause confusion, and the like to make more money and along with "the power of the state" to control people ..... gave rise to the overriding federal PKPA (1980)came into being to stop all the BS.

The UCCJA provides for the home state to have jurisdiction over all parties...both parents and all children.  Enforcement of custody orders prevail including the ability to arrest/return the abscounded parent.  I haven't studied the UCCJEA that was intended to maintain the UCCJA but had provisions to justify false accusations ... promoted by WAVA.

Bottom line, the left-behind parent should not have to leave home and argue jurisdictional issues (the statue is clear) in a foreign state or hope LE in the foreign state will enforce the out-of-state custody order when they usually won't enforce a local "visitation" order if daddy lives accross the street.

The lives of many children have been impacted substantially, been depleted or destroyed when attorney/courts do not use the full intent of the law to protect them.  The financial costs are overwhelming in both the short term and long term ... money that would otherwise be used for the children's benefit.  And studies have shown in many cases there is another party (ie grandparent) interfering in the family unit.

The judicial system is broken. We must do everything to correct it. 
I've been on both sides of the issue including arrest (in both states) and always found not guilty while the real kidnapper has never been under oath.   

[MrCustodyCoach]

While still inadvisable, he absolutely has the right to go to that state, pick-up the children, and return to their home state with them.  It's only inadvisable because of the potential drama involved, but he would be doing nothing illegal by going to retrieve them.

[Davy]

Mr Custody (or anybody) - As reflected (and agreed) in other posts it is  "inadvisable because of the potential drama involved, but he would be doing nothing illegal by going to retrieve them".

In addition, depending on the environment, the out-of-state parent could be at-risk of being detained or jailed on false accusations or give cause to further escalate possible legal proceedings in the foreign state.   In a practical and civil sense, assistance of authorities would be necessary to retrieve the children and that may not be provided.

My question.  Do you have another possible remedy or suggestion ? It is not unusual for total non-compliance of any court order (often multiple) by the abscounding parent and the home state court refuses substantial action to return the children to their home ??

This is often what a left-behind parent, like this OP, is faced with.