Transcript Immigrant Women

Transnational/ International
Parental Kidnapping.
Bandita Sharma-Dahal, Esq (2013)
Parental kidnapping or parental
abduction
• Concealment and/or
• Taking and/or
• Retention of a child by his parent in violation
of the rights of the child's other parent or
another family member.
Parental kidnapping is illegal
Parental kidnapping is far more than a dispute
regarding custody matters between divorcing
parents.
Parental kidnapping is a criminal act.
Parental kidnapping violates the laws of all U.S.
states, the District of Columbia, and the Virgin
Islands, plus U.S. federal laws and international
laws.
Numbers/ Data
• According to a study, 350,000 cases of child
abduction occur every year in the United
States.
• Ten thousand of those cases involved U. S.
children held in foreign countries as pawns of
custody disputes between one parent of U. S.
citizenship and one of a different nationality.
Children abducted to India
• In 2012, 32 more children were abducted to
India, bringing the total number to 78 open
abduction cases. Although some Indian courts
make “Haguelike” decisions to return some
children, returns are uneven.
• Parents attempting to utilize India’s courts for the
return of abducted children report corruption
and incessant delays. The United States does not
have a bilateral agreement with India to facilitate
the return of American citizen children
Convention.
Recognize the risk/ safeguard in place
• Where parents have made such threats,
withheld visitation, or snatched a child in the
past, there is a heightened risk for further
serious custody violations. Id. . Liquidation of
assets or a maximum draw on a credit card is
an obvious sign of an intent to abduct.
• Quit the job/ sell the property
• Criminal record/ unstable etc
• Dual citizenship or Citizen of another country
• Strong ties to another country
• Inquired school authorities about the birth
certificates of child etc
Prevention measures
• Supervised visitation
• No-removal clause: for noncustodial parents
• Surrender the passport and other travel
document
• Prohibition on new or replacement passport
for the child (Foreign government might not
be agreeable to this term)
• Notifying Foreign consulate of restrictions
More:
•
•
•
•
•
•
•
•
Restriction on relocating
Bond guarantee if traveling
Restriction on unauthorized pickup
Joint custody
Keep your child complete record
Keep other parents complete record
Take your child’s picture
Have your child finger printed…..etc etc
If you suspect your child has been
abducted
•
•
•
•
•
•
Contact local law enforcement without a delay
File missing person report
Request amber alert
Call local FBI (to stop abduction in process)
Call the likely embassy/ consulate
Call likely airline
APPLICABLE LAWS IN US
• Uniform Child Custody Jurisdiction Act
• The Parental Kidnapping Prevention Act
• The Hague Convention
Uniform Child Custody Jurisdiction Act
• Under the UCCIA, a court has jurisdiction to make a custody
determination only if (l) the state is the home state of the
child at the time of the commencement of the proceeding;
(2) the child and his parent or his custodian have a
significant connection with the state; (3) the child is
physically present in the state and has been abandoned or
subject to mistreatment, abuse, or neglect;
A major criticism of the UCCJA is that it offers
• "loopholes." The major loophole occurs in the UCCJA’s
precatory language and the potential for concurrent
jurisdiction.
The Parental Kidnapping Prevention
Act
• The PKPA protects the continuing jurisdiction of
the decree state to modify the original custody
decree as long as (1) the initial custody order was
made consistent with the PKPA’s jurisdictional
hierarchy, (2) the state issuing the original decree
continues to have a basis for exercising custody
jurisdiction under state law (which need no
longer be the "home state"), and (3) the state
remains the residence of the child or of any
custody contestant.
Hague Convention
• The Hague Convention on the Civil Aspects of
International Child Abduction became law in
the United States in July 1988.
• The main purpose of the Convention is to
ensure that abducted children are returned to
the country of habitual residence.
• The Hague Convention will not mandate a
child ‘s return to his habitual residence if the
abductor can justify his actions.
Exceptions to the general rule. Arts. 12, 13(a), 13(b), and 20. The person opposing
return must be able to establish any of the following:
•
the person requesting return was not, at the time of the retention
or removal, actually exercising custody rights or had consented to
or subsequently acquiesced in the removal or retention.
• the return of the child would result in grave risk of physical or
psychological harm to the child.
• the return of the child "would not be permitted by the fundamental
principles of the requested state relating to the protection of
human rights and fundamental freedoms,"
• the proceeding was commenced more than one year after the
abduction, and the child has become settled in the new
environment
• The Hague Convention has been a successful
tool in securing the safety of internationally
abducted children who were wrongfully
removed. However, the Convention has
potential to achieve an even greater success, if
more countries were to become signatories.
• The Second Circuit stated: "The question
remaining before us, however, is whether the
District Court could have protected the
children from the "grave risk" of harm that it
found, while still honoring the important
treaty commitment to allow custody
determinations to be made --if at all possible by the court of the child’s home country.
Non-Hague Convention Country
Recovery
•
If a child is abducted from the United States to a country that is not party to the
Hague Convention, the parent can petition a court in that country to enforce a
custody order made by a U.S. court. However, Federal and State laws of this
country that govern State court jurisdiction to make, modify, and enforce custody
determinations—the Uniform Child Custody Jurisdiction Act (UCCJA) (9 U.L.A.123
(1988)) and the Parental Kidnapping Prevention Act (PKPA) (28 U.S.C. 1738A)—do
not apply in other countries. Courts in other sovereign countries apply their own
family law. They are not legally bound to enforce custody orders made in the
United States, although some may do so voluntarily as a matter of comity (i.e., the
principle of reciprocity among sovereigns).
•
If the foreign court refuses to honor the U.S. custody order, it may be necessary to
file for custody in the foreign court under the laws and customs of that country. In
some countries the parent may encounter religious laws and customs or biases
based on gender or nationality that preclude an award of custody.
Obstacles
• EXPENSES: $100,000 may be necessary to
litigate a child abduction case in a court of a
foreign country.
• Finding a lawyer in foreign country
Conclusion:
•
•
•
•
•
At personal level
At the Local Level
At the Federal Level
Diplomatic Initiatives
Lobbying for the uniform (atl east similar
rules)
• AWARENESS/ advocacy/ networking/ social
support