Family Abduction Prevention Act Fails to Address Causes of Parental Kidnapping

The Family Abduction Prevention Act recently passed by the Senate is designed to combat what California Senator Diane Feinstein calls a "growing epidemic" of child abductions committed by noncustodial parents. The bill, co-sponsored by Feinstein and Texas Senator Kay Bailey Hutchison, provides funding to help local law enforcement investigate and prosecute parental abduction cases. FAPA passed by unanimous consent, and will soon be considered by the House of Representatives.

Feinstein and Hutchison are correct that parental abductions are a problem–each year 200,000 children are kidnapped by a family member, usually a noncustodial parent. This represents over three-quarters of all child abductions. Yet while FAPA may do some good, its utility will be limited because it fails to consider why so many noncustodial parents abduct their children.

According to the US Department of Justice’s Office of Juvenile Justice, children in sole custody settings are at a far greater risk of being abducted by a parent than children in joint physical custody settings. The driving force behind parental abductions is the win-lose child custody system.

Under this system, when a couple divorces or separates, one and only one parent is awarded true custody of the child, and many noncustodial parents are allowed little or no role in their children’s lives. Courts enforce visitation and parenting time lackadaisically–according to the Children’s Rights Council, a Washington, DC-based children’s advocacy group, more than five million American children each year have their access to their noncustodial parents interfered with or blocked by custodial parents. This sets up a situation where disenfranchised parents may go outside the law to regain their relationships with their children.

This is not to say that parental abductions are justified or are in children’s best interests–they rarely are. And in some cases parents have lost custody because they are unfit. Yet current divorce policies set up incentives to abduct.

Feinstein and Hutchison portray FAPA as a protection against abducting noncustodial fathers. However, according to the US Department of Justice, mothers and fathers abduct their children in equal numbers. Since noncustodial fathers outnumber noncustodial mothers four to one, noncustodial mothers are far more likely to abduct their children than noncustodial fathers. This is partly because mothers who lose custody often bear the terrible stigma of "unfit mother." Fathers who lose custody don’t bear the same stigma. For men, losing custody is Standard Operating Procedure (or, more appropriately, Standard Operating Punishment) in family court. Yet losing custody can be devastating emotionally for any parent.

There will always be some parents who abduct because they are narcissistic, power-hungry, or bent on revenge against their former spouses. However, the parental abduction problem could be reduced by instituting a rebuttable presumption of shared custody after a divorce or separation. Under this presumption–which does exist to varying degrees in some states–as long as both parents are fit, they will both have the right to share equally in raising their children. The fitness requirement excludes parents who have been physically abusive, who abuse drugs or alcohol, or who have significant mental disorders.

FAPA is at best a Band-Aid on a bleeding wound. Only shared parenting can truly reduce the anger and fear endemic to custody battles–emotions which can often lead to child abductions.