By: Chetana Kaasam

"Children who are victims of family abduction are uprooted from their homes and deprived of their other parent. Often they are told the other parent no longer loves them or is dead. Too often abducted children live a life of deception, sometimes under a false name, moving frequently and lacking the stability needed for healthy, emotional development."

- Quote from Family Abduction: Prevention and Response, 6th ed., The National Center for Missing & Exploited Children, 2009.

Federal law prohibits a parent from removing a child from the United States or retaining a child in another country with intent to obstruct another parent´s custodial rights.  This crime is known as international parental kidnapping. In family law issues involving disputes between married couples with children, it is not uncommon to see one spouse leaving/fleeing the country with his/her children without informing the other spouse. We have seen a case recently where the wife alleged that the husband was abusive towards her and therefore had left the United States with her children (who are citizens of the United States) to India without taking her husband’s consent or even informing him of her decision. Upon research on this issue, I was shocked to see that this scenario is very common in married couples in the United States who have access to or close ties with another country. Unfortunately, despite the abuse allegations (even if they are proven to be true), this scenario would clearly amount to international child abduction by a parent. This can sometimes be heartbreaking for the other parent- despite the marital discord, the other parent is still the father/mother of the abducted child and has rights over the child. In matters of family law, emotions sometimes overwhelm reason and judgment. This may be especially true when children are involved.

If a parent has fled to another state but within the United States, the federal and state laws of the United States provide certain methods to help the parent bring the children back. In these situations, a parent's remedies include relying on the criminal justice system and petitioning for a different custody arrangement to prevent future repeat incidents.

Legal hurdles in International Child Abduction cases

Under federal law, prosecutors may investigate and prosecute the parent who kidnapped the child, however, prosecutors generally have no control over the custodial decisions affecting the child or whether foreign authorities will order the return of the child.

The return of kidnapped children is often settled through negotiation. The U.S. Department of State handles the coordination of efforts with foreign officials and law enforcement agencies to effectuate the return of children to the United States.  In some circumstances, the return may be governed by the Hague Convention on the Civil Aspects of International Parental Child Abduction (1980). This Convention was established to facilitate the return of children abducted to foreign countries.  However, it only applies if both countries involved in the international parental kidnapping situation are signatories to the Convention.  The United States is a signatory state.

Adhering to the provisions of the Convention, when applicable, and working with the U.S. Department of State are the best methods to legally and safely return a kidnapped child to the United States.  In acts of desperation, some parents may attempt to use extra-judicial forms of recovery, such as personally traveling to the foreign country to recover a child.  Although it may seem easier and faster to use extra-judicial methods, they often violate United States federal laws and the laws of the foreign country involved, and may potentially exacerbate the situation.  For example, the parent who kidnapped the child may have sought assistance from a foreign court or obtained a foreign custody order.  In such circumstances, the other parent's direct removal of a child from the foreign jurisdiction, without the assistance of the U.S. Department of State, could result in his or her arrest or even imprisonment in that foreign country.  Furthermore, any unlawful attempt to recover a child may adversely impact a have a petition for return under the Hague Convention.

Which law governs?

Although the courts in the state in which the child is currently located have exclusive custody jurisdiction from their own perspective, if the child is taken to visit another country, the courts there will often have jurisdiction under the local law of that country to determine what is best for the child. In practice, international child custody cases often yield complex and messy conflicts between the laws and courts of different countries, demonstrating serious clashes of societal views about culture, religion, gender roles, parental rights, and children’s rights, as well as of the role of the legal system in intervening in disputes about children.

Prevention of Abduction

If a client says, “I’m sure my spouse is about to take our child to [India/Japan/China/Colombia/England/Germany] and they will never come back. Please help!” What do you do?

Our initial advice may well be purely practical. It will be designed to prevent the immediate threat. Some issues we would cover are:

• We would discuss the passport issue. We would talk about how to secure the child’s passport. We would alert the client to the fact that control over passports does not create complete security because many foreign consulates issue renewal passports or other travel documents to their own nationals, without requiring the consent of the other parent and frequently even in the face of a United States. court order.
• We would talk about how to track the child’s whereabouts.
• We would discuss whether the client should contact the airlines to discover if the other parent has bought airline tickets for the child.
• We would discuss whether the client should contact other family members about the issue and what to say to them.
• We would advise on how to instruct the child as to what to do in case of an emergency.
• We would advise about collecting and securing evidence for a potential court hearing.

We may want to secure an emergency restraining order very promptly from the family court. The United States has no exit controls, with certain exceptions, and a mere court order will not trigger the kind of effective checks that other countries have in place to prevent children from being taken out of the country by one parent or family member.

Burden of Proof

The long-term burden will be strongly on the client to present compelling evidence sufficient to justify what the court will likely see as extraordinary relief. That evidence must be of two distinct types. First, one must establish that the other parent represents a serious risk of being an international child abductor. Second, one must show, if appropriate, that the foreign country’s legal system will not return an abducted child at all or will do so only after great delay and expense. There will be a significant interplay between these two factors. The stronger the likelihood that the other parent will abduct the child, the less evidence that the country in question presents a high degree of risk.