Ask Me Help Desk - Can the secondary custodian take child out of state without primary consent?

Quote:

Originally Posted by califdadof3

No he does not have the right to go where he pleases with the child other then in state without permission from the other parent. Without permission and crosing a state line with the child would be a violation of federal law.

You have referred to the Parental Kidnapping Prevention Act as well as certain crimes you refer to as First and Second Degree Custodial Interference. You appear to be confusing apples and oranges, however. The PKPA, 28 USC 1738A, merely specifies under what conditions a state court does or does not have to give full faith and credit to a custody decree from a court in a sister state. It doesn't create a crime, as you suggest.

I am sure you will correct me if I am wrong, but I have looked at Title 18 of the U.S. Code, and there doesn't appear to be a federal crime called "custodial interference". Many states have such a crime, but their definition is different in each.

The closest thing Georga has to what you describe is this:

"...(2) A person also commits the offense of interstate interference with custody when the person removes a minor or committed person from this state in the lawful exercise of a visitation right and, upon the expiration of the period of lawful visitation, intentionally retains possession of the minor or committed person in another state for the purpose of keeping the minor or committed person away from the individual having lawful custody of the minor or committed person. The offense is deemed to be committed in the county to which the minor or committed person was to have been returned upon expiration of the period of lawful visitation."

That would not prohibit the father from taking the child to another state, provided that he return him upon the expiration of his visitation.

Quote:

Originally Posted by AK lawyer

You have referred to the Parental Kidnapping Prevention Act as well as certain crimes you refer to as First and Second Degree Custodial Interference. You appear to be confusing apples and oranges, however. The PKPA, 28 USC 1738A, merely specifies under what conditions a state court does or does not have to give full faith and credit to a custody decree from a court in a sister state. It doesn't create a crime, as you suggest.

I am sure you will correct me if I am wrong, but I have looked at Title 18 of the U.S. Code, and there doesn't appear to be a federal crime called "custodial interference". Many states have such a crime, but their definition is different in each.

The closest thing Georga has to what you describe is this:

"...(2) A person also commits the offense of interstate interference with custody when the person removes a minor or committed person from this state in the lawful exercise of a visitation right and, upon the expiration of the period of lawful visitation, intentionally retains possession of the minor or committed person in another state for the purpose of keeping the minor or committed person away from the individual having lawful custody of the minor or committed person. The offense is deemed to be committed in the county to which the minor or committed person was to have been returned upon expiration of the period of lawful visitation."

That would not prohibit the father from taking the child to another state, provided that he return him upon the expiration of his visitation.

Where it becomes key is in 16-5-45 (b)

(B) Knowingly harbors any child or committed person who has absconded; provided, however, that this subparagraph shall not apply to a service provider that notifies the child's parent, guardian, or legal custodian of the child's location and general state of well being as soon as possible but not later than 72 hours after the child's acceptance of services; provided, further, that such notification shall not be required if:

The Key here is absconded. Taking without permision. Leaving the state (removing from jurisdiction) without informing the other party.

http://law.justia.com/codes/georgia/...cle-3/16-5-45/

Quote:

Originally Posted by califdadof3

...
The Key here is absconded. Taking without permision. Leaving the state (removing from jurisdiction) without informing the other party.

§ 16-5-45 - Interference with custody :: 2010 Georgia Code :: US Codes and Statutes :: US Law :: Justia

At the risk of our our becoming obsessive here, I would point out that the clause you quote pertains to a child who runs away, etc. not to his parent.

The word is not defined in the statute. So, using a dictionary, I find that "absconded" is defined as: "Simple past tense and past participle of abscond", which in turn means:
"...
To withdraw from, to leave from; to hide from".

In short, the Georgia statutory provision to which you refer does not apply.

OK, guys, I think we are nit-picking here and not helping the OP.

Bottom line here is that the only way I see of preventing the father from getting on a plane with their son would be a TSA watch list or the son's refusal to board. Various laws and their penalties might act as a deterrent to the father, but would not prevent anything if he chooses to ignore them.

On the other hand, I think the law is firmly on the OP's side if the father does take the child out of state without her permission and especially if he does not return the child in a timely fashion. I also believe the law would be on her side, if the father does move out of state and wants to continue with the current visitation schedule.