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The Missing Children Act (1982) requires law enforcement to enter

By Juan Bennett,2014-04-20 19:35
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The Missing Children Act (1982) requires law enforcement to enter

    U.S. Missing Child Legislation

; The Missing Children Act (1982) requires law enforcement to enter a missing child

    into NCIC even if the abductor has not been charged with a crime. [Missing Children

    Act, Title 28, Ch 33 U.S Code ? 534 (1982).]

    ; The National Child Search Assistance Act (1990) eliminates waiting periods, requiring

    law enforcement agents to immediately enter a Missing Person File and to liaise with

    NCMEC. [National Child Search Assistance Act, Title 42 U.S.C. ?? 5779, 5780

    (1990).]

    ; The Adam Walsh Child Protection and Safety Act (2006) ensures that no law

    enforcement agency removes a missing person entry from NCIC or its State law

    enforcement database based solely on the age of the missing person, and requires that

    any relevant information be entered within two hours of receipt. [The Adam Walsh

    Child Protection and Safety Act (2006) amends 42 U.S.C. ?? 5779, 5772, the Crime

    Control Act of 1990.]

; The U.S. Constitution requires that states show full faith and credit to other states’

    judicial decrees. The Uniform Child Custody Jurisdiction and Enforcement Act

    (UCCJEA) has improved comity at both the domestic and international levels. The

    UCCJEA requires that state family courts recognize and enforce custody/visitation

    determinations made by sister-state courts under factual circumstances that

    substantially conform to the UCCJEA's jurisdictional standards, and defer to foreign

    countries’ family courts as if they were U.S. state courts. Left-behind parents who

    succeed in obtaining a valid custody order in their state or country may be able to

    domesticate (register) and enforce the certified, translated, foreign order in the taking-1parent’s destination state under the UCCJEA. The court may decline to domesticate

    and enforce a foreign custody order upon finding that the order was not made in

    substantial conformity with the UCCJEA’s jurisdictional standards; the foreign family

    court did not guarantee due process (notice and opportunity to be heard); the foreign

    country’s custody laws violate fundamental principles of human rights; or where there

    exists a high risk that the child’s safety or human rights will be violated if returned.

    The UCCJEA authorizes law enforcement officers to take “any lawful action

    reasonably necessary to locate a child and assist an appropriate public official to

    enforce a child custody order.” The officer may act upon a reasonable belief that (1) a

    criminal statute has been violated; (2) a child has been wrongfully removed or retained

    in violation of the Hague Convention; (3) there is an existing custody order; or (4)

    upon a court’s request that the officer act. [Model Uniform Child Custody Jurisdiction

    and Enforcement Act, ? 315(a) (1997). Almost every U.S. state has enacted a version

     1 Language derived from the Hague Convention of 25 October 1980 on the Civil Aspects of International Child

    Abduction, opened for signature Oct. 25, 1980, art. 20, T.I.A.S. 11670, 1343 U.N.T.S. 89 (entered into force 1

    December 1983). 51 Fed. Reg. 10510 (1986). See also Text and Legal Analysis by the Department of State

    (Public Notice 957). See also The Parental Kidnapping Prevention Act, Title 28 U.S Code ? 1738A (1980) and

    The Uniform Child Abduction Prevention Act (2006) at

    http://www.law.upenn.edu/bll/ulc/ucapa/2006_finalact.htm.

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    U.S. Missing Child Legislation

    of the UCCJEA; those states that have not enacted the UCCJEA have enacted an

    earlier version, the UCCJA.]

    ; Every U.S. state and the District of Columbia have criminalized interference with

    custody, and approximately twenty-three states presently have laws on the books

    criminalizing interference with court-ordered visitation. [See

    http://www.ndaa.org/pdf/parental_kidnapping.pdf]

    ; Both the International Child Abduction Remedies Act (the U.S. Hague treaty

    implementing legislation) and the UCCJEA allow for provisional remedies, such as a

    writ of habeus corpus (pick-up order) to locate abductors and missing children, or to

    prevent further flight (re-abduction) by either party pending adjudication. [ICARA, 42

    U.S.C. ? 11603(2)(A), (1988).]

    ; U.S. law enforcement officials typically utilize two criminal warrant types to recover

    parental abductors, the Unlawful Flight to Avoid Prosecution (UFAP) warrant and the 2International Parental Kidnapping Crime Act (IPKCA) warrant.

    The principal U.S. criminal warrant utilized to seek extradition of a fugitive abductor

    that crosses state or national boundaries is the UFAP warrant. UFAP provides for a

    fine, imprisonment for up to five years, or both for a parent who:

    moves or travels in interstate or foreign commerce with intent either (1) to

    avoid prosecution, or custody or confinement after conviction, under the laws

    of the place from which he flees, for a crime, or an attempt to commit a crime,

    punishable by death or which is a felony under the laws of the place from

    which the fugitive flees, or (2) to avoid giving testimony in any criminal

    proceedings in such place in which the commission of an offense punishable

    by death or which is a felony under the laws of such place, is charged, or (3) to

    avoid service of, or contempt proceedings for alleged disobedience of, lawful

    process requiring attendance and the giving of testimony or the production of

    documentary evidence before an agency of a state empowered by the law of 3such state to conduct investigations of alleged criminal activities…

    UFAP is a federal tool that enables state authorities to recover the fugitive subject of a

    state criminal charge the unlawful flight itself is not prosecuted, only the underlying

    state charge is prosecuted. If the child’s home state has not criminalized interference

    with visitation, a non-custodial parent has no remedy under UFAP.

     2 Alternatively, a taking parent could be prosecuted under the laws of the destination jurisdiction. Military laws may act to extend application of domestic parental-kidnapping laws to parents serving on foreign territory. Maritime law may apply to cases that take place in international waters. For example, in one case the abducted children were recovered on their abductor/father’s yacht afloat in the Caribbean. For example, the U.S.’ Military Extraterritorial Jurisdiction Act of 2000 applies to cases involving active duty parents stationed abroad or U.S. government-affiliated civilians with a nexus to the military mission. Other states have similar military codes. 3 Unlawful Flight to Avoid Prosecution (UFAP), 18 U.S.C. ? 1073, is part of the Fugitive Felon Act; the Parental Kidnapping Prevention Act (PKPA) clarified that the Fugitive Felon Act applies to interstate and international

    abduction cases.

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    U.S. Missing Child Legislation

IPKCA provides for independent federal criminal liability consisting of a fine, up to

    three years imprisonment or both for any parent who:

    …removes a child from the United States, or attempts to do so, or retains a

    child (who has been in the United States) outside the United States with intent 4to obstruct the lawful exercise of parental rights…

     5IPKCA specifically defines the term “parental rights” to include visitation rights.

     4 International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. ? 1204 (1993). 5 “…whether arising by operation of law, court order, or legally binding agreement of the parties."

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