CHILD SNATCHING BY PARENTS - WHAT LEGAL REMEDIES FOR 'FLEE AND PLEA'?

• NCJ Number: 63846
• Journal: Chicago-Kent Law Review Volume: 55 Issue: 2 Dated: (1979) Pages: 308-317
• Author(s): C J FLECK
• Date Published: 1979
• Length: 15 pages
• Corporate Author: Illinois Institute of Technology
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE DECISIONAL TREND OF CUSTODY AWARDS OF CHILDREN FOLLOWING DIVORCE ACTIONS, RECOGNITION OF AWARDS IN OTHER STATES, AND NEW LEGAL TOOLS DESIGNED TO DETER EXTRALEGAL CHILD SNATCHING ARE DISCUSSED.

Abstract

UNSUCESSFUL PARENTS IN CHILD CUSTODY PROCEEDINGS ARE INCREASINGLY INITIATING SELF-HELP BY KIDNAPPING THEIR OWN CHILDREN. IN THE ABSENCE OF ADEQUATE LEGAL PROTECTION, THE PARENT GRANTED CUSTODY MUST RESORT TO THE SAME KIDNAPPING TACTICS. LEGAL RIGHTS BECOME FURTHER OBFUSCATED WHEN ONE PARENT OPENLY DEFIES A COURT ORDER, TAKES THE CHILD TO ANOTHER STATE, AND FILES A POSITION FOR CHANGE OF CUSTODY. IN EARLY COMMON LAW, 'CUSTODY' WAS CONSIDERED A 'PROPERTY RIGHT' AND SINCE THE WIFE'S PROPERTY BECAME HER HUSBAND'S, CHILDREN WERE AWARDED TO THE FATHER. IN THE 1849 ILLINOIS SUPREME COURT DECISION OF MINER V. MINER, THE 'TENDER YEARS' DOCTRINE ESTABLISHED ALMOST CERTAIN MATERNAL CUSTODY. RECENTLY, BECAUSE OF CHANGING SEXUAL ROLES, COURTS SEE THE 'TENDER YEARS' DOCTRINE AS CONTRAVENING THE BEST INTEREST PRINCIPLE. THE UNIFORM CHILD CUSTODY JURISDICTION ACT FOR 1968, NOW ADOPTED BY 26 STATES, ATTEMPTS TO RESOLVE JURISDICTIONAL DISPUTES BETWEEN THE STATES ON CHILD CUSTODY ISSUES, TO AVOID JURISDICTIONAL COMPETITION, TO PROMOTE INTERSTATE COOPERATION, AND TO DISCOURAGE CONTROVERSIES OVER CUSTODY. THE ACT LEAVES TO THE INDIVIDUAL STATES DETERMINATION OF WHAT CONSTITUTES THE BEST INTERESTS OF THE CHILD. THE ACT IS A SOLID PROPOSAL BUT IS LIMITED TO ONLY THOSE CASES IN WHICH A PARENT ACTUALLY FILES FOR A CHANGE OF CUSTODY. OFTEN, THE PARENT WHO HAS KIDNAPPED HIS CHILD DOES NOT FILE FOR A CHANGE BUT SEEKS ANONYMITY IN A NEW COMMUNITY. ALTHOUGH HISTORICALLY, PARENTS WERE EXCLUDED FROM KIDNAPPING STATUTES, RECENT CHILD ABDUCTIONS HAVE CAUSED SOME STATES, SUCH AS CALIFORNIA, TO EXPAND STATUTES TO INCLUDE PARENTS. IN AADDITION, WRITS OF NE EXEAT ARE NOW WIDELY USED IN DIVORCE ACTIONS TO RESTRAIN A PARTY THREATENING TO FLEE THE JURISDICTION. THE ONLY COMPLETE SOLUTION TO THE PROBLEM IS CONCERTED ACTION AMONG THE STATES. FOOTNOTES ARE INCLUDED IN THE ARTICLE. (LWM)