There are arguably no situations more pressing or serious than those involving the custody of your children. In the context of divorce, determining child custody is often the most contentious aspect of the entire lawsuit, and despite issues of property division and alimony often becoming hotly contested issues in their own right, both parents often find themselves fighting with their greatest vigor to protect their right to control the upbringing and development of their children after the bonds of legal matrimony are finally dissolved. If the parents never married, disputes over child custody can become the sole contested issue in a legal dispute. Under Tennessee law, child custody can become an issue in a myriad of different family law proceedings.
Nevertheless, while many parents may think that custody disputes are something that always get resolved at the local courthouse, legal disputes over child custody can often traverse several states or even several countries. To make matters even more complicated and pressing, one parent may take physical custody of the children without the knowledge or consent of the other parent, and it may not even be clear where the children are located or who is with them at the time a parent wants to file a legal action for custody in such exigent circumstances.
For example, imagine a situation in which you have been married to your spouse for approximately fifteen years and you have two minor children, ages twelve and fourteen. One day, after working long hours, you come home to find a note from your spouse saying, “I just can’t take this anymore. I’m leaving and I’m taking the kids with me. I think we may eventually stay with my parents but I’m not sure when. Don’t try to follow us.” After reading the note several times over, you frantically search the house only to find that both of your children are gone, many of their clothes are missing from their closets, and neither the children’s passports nor suitcases are anywhere to be found. In what seems like the blink of an eye, your children are gone, and you don’t know when – if ever – you may see your children again. What can you do?
Although this terrifying scenario may seem beyond imagination, the above situation is unfortunately something that can happen to parents far too often and easily, both in Tennessee as well as the rest of the country and the world. If your spouse or partner decided to take your children and travel to another state or even another country with them, what are your options? What are your options to protect your children and see them again?
In a child custody emergency such as the situation described above, you must first ascertain what your legal rights are and where you may be able to exercise them. Depending on the specific circumstances of your case, you may need to seek relief in a state court encompassing the residence of your children prior to their sudden removal or abduction. However, depending on how long your children resided in the state of your current residence, and further depending on where (if known) the children have been taken and other specific factual circumstances, it may be necessary to seek relief from a court in a different jurisdiction. It is very important to speak with a Nashville family law attorney knowledgeable about interstate and international custody disputes as quickly as an emergency arises to take prompt and effective action to attempt to regain custody of your children. Time is of the essence in such matters, and your ability to respond quickly and effectively may make the difference between preserving your parental rights or effectively losing them for months or even years.
There are primarily three different sets of laws that apply to interstate and international custody disputes: (1) the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”), (2) the federal Parental Kidnapping Prevention Act of 1980 (the “PKPA”), and (3) the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).
A version of the UCCJEA has been implemented and is currently in force in every state. The UCCJEA is intended to provide uniformity and the reduction of uncertainty as it relates to interstate child custody determinations. The PKPA – a federal law that extends the requirements of the Full Faith and Credit Clause of Article IV, Section 1 of the United States Constitution to state-level custody determinations – is binding on the states. Essentially, the PKPA provides a rule of decision in interstate custody disputes by forcing one State to enforce a child custody determination entered by a court of a different State, so long as the court of the first State entering a child custody determination did so consistently with the provisions of the PKPA.
Simply put, the UCCJEA governs state-level interstate child custody determinations, the PKPA mandates that other states enforce valid child custody determinations made by previous states in accordance with the PKPA, and the two laws work together to determine and enforce child custody determinations throughout the United States.
Under Tennessee’s version of the UCCJEA, a court will first determine if it has jurisdiction to make an initial custody determination. If an initial custody determination has already been made and is in effect from the court of another state, the Tennessee court will analyze whether it has jurisdiction to modify the custody determination of the state making the prior custody determination, or if the initial or prior custody determination should be enforced pursuant to the PKPA.
In undertaking the analysis of whether another state’s custody determination complies with the PKPA, the Tennessee court must determine if the state court that issued the prior custody determination (1) exercised jurisdiction in accordance with its own law, and (2) exercised jurisdiction in accordance with the jurisdictional provisions of the PKPA. As the United States Supreme Court has explained, “Once a State exercises jurisdiction consistently with the provisions of the PKPA, no other State may exercise concurrent jurisdiction over the custody dispute and all States must accord full faith and credit to the first State’s ensuing custody decree.” Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513 (1988).
Importantly, the Hague Convention (beyond the scope of this article) largely governs international custody disputes and can add another degree of complexity as it relates to the law surrounding child custody determinations. Indeed, even this article barely scratches the surface of the law pertaining to the UCCJEA and PKPA. Given the importance of the issues involved in interstate and international child custody disputes, and the risks of irreparable harm and possibly never seeing your children again should you lose, it is extremely important that you engage the services of an attorney familiar with the law of the UCCJEA, PKPA, and Hague Convention in such situations. While not all of these laws will always apply in every case, and different action(s) may be needed depending on the specific facts of your case, the importance of immediately taking effective legal action in a court of competent jurisdiction can often make the difference between thwarting a parental kidnapping or losing your children for months or years.
Cole Law Group focuses on rapid legal responses in emergency custody disputes. If you find yourself in need of legal assistance and in the midst of an interstate or international custody dispute, Cole Law Group’s Nashville family law attorneys focus on providing rapid legal responses in emergency custody disputes and would be happy to help. Give us a call at (615) 490-6020 to schedule a consultation.