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Transnational/ International Parental Kidnapping. Bandita Sharma-Dahal, Esq (2013)

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Presentation on theme: "Transnational/ International Parental Kidnapping. Bandita Sharma-Dahal, Esq (2013)"— Presentation transcript:

1 Transnational/ International Parental Kidnapping. Bandita Sharma-Dahal, Esq (2013)

2 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 or parental abduction

3 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.

4 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.

5 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.

6 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

7 Dual citizenship or Citizen of another country Strong ties to another country Inquired school authorities about the birth certificates of child etc

8 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

9 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

10 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

11 APPLICABLE LAWS IN US Uniform Child Custody Jurisdiction Act The Parental Kidnapping Prevention Act The Hague Convention

12 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.

13 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.

14 Hague Convention The Hague Convention on the Civil Aspects of International Child Abduction became law in the United States in July 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.

15 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

16 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.

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18 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.

19 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.

20 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

21 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


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