 |
| ||||
| Find Divorce Professionals > |
FIVE TIPS TO PREVENT INTERNATIONAL CHILD ABDUCTION
© 1998 National Legal Research Group, Inc.
In 1988, it was estimated that there were 350,000 cases of intra-family kidnapping within the United States. United States Department of Justice, Missing, Abducted, Runaway, and Throwaway Children in America, First Report: Numbers and Characteristics, National Incident Studies (1990). Although there are no figures available worldwide, it has been estimated that international intra-family kidnapping is exponential to the United States' figures. See Susan L. Barone, International Parental Child Abduction: A Global Dilemma with Limited Relief - Can Something More Be Done?, 8 N.Y. Int'l L. Rev. 95 (1995).
When one parent believes that the other parent is about to leave the country with their child, there are many practical steps that may be taken. This article is intended to apprise the practitioner of those steps in order to prevent international kidnapping before it occurs. See also Patricia E. Apy, Managing Child Custody Cases Involving Non-Hague Contracting States, 14 J. Am. Acad. Matrimonial Law. 77 (1997); Phillip Schwartz, Getting a Child Back: How the State Department Can Help, 15 Fam. Advoc. 42 (Spring 1993).
Step 1: Get a Temporary Custody Order
If the child is still within the jurisdiction, get a temporary order defining custody and access rights to assure enforceable rights of custody under the Hague Convention on the Civil Aspects of International Child Abduction, 19 I.L.M. 1501 (1980), the United Nations Convention on the Rights of Children, 28 I.L.M. 1448 (1994), the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and/or Restoration of Custody of Children, 19 I.L.M. 273 (1980), and the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, 35 I.L.M. 1391 (1996). By having an order designating one parent as having rightful custody, and designating the other parent's behavior as wrongful retention of the child, police and prosecutors can take the first factual step they may need toward establishing probable cause sufficient to generate a warrant for the arrest of the parent retaining the child.
Step 2: Have the Judge Refer the Case to the Appropriate State Prosecutor or Law Enforcement Official
If you believe that a parent is taking a child out of the country, you want to intercept that parent and child before they leave the country. The criminal justice system can prove to be a useful ally.
An ex parte complaint can result in the issuance of a warrant where there is sufficient detail to enable the decisionmaker to conclude that abduction is probable and imminent. Compare Al-Silham v. Al- Silham, 1994 Ohio App. LEXIS 1316 (Ohio Ct. App. Mar. 25, 1994), with Ali v. Ali, 279 N.J. Super. 154, 652 A.2d 253 (Ch. Div. 1994). For example, in Brooke v. Willis, 907 F. Supp. 57 (S.D.N.Y. 1995), as a result of one parent's behavior, the other parent was able to obtain misdemeanor warrants in both California and Virginia, and the court issued a writ of habeas corpus to be followed by a warrant in lieu of the writ for return of the child. As stated by one author:
- By providing judicial sanction for the characterization of the removing parent's conduct, police and prosecutors can take the first factual step they may need toward establishing probable cause sufficient to generate a warrant.
Patricia E. Apy, Managing Child Custody Cases Involving Non-Hague Contracting States, 14 J. Am. Acad. Matrimonial Law 77, 86 (1997).
The state law providing a basis for criminal prosecution should be cited in the application for the warrant. E.g., N.J. Stat. Ann. 2C:13-4 (West 1995) (interference with custody). If state authorities are unwilling to take action, the United States Attorney can issue a warrant under 18 U.S.C. 1204, the International Parental Kidnapping Crime Act.
Once a state or federal warrant has been issued and notice of the same is given, a state prosecutor may request a warrant pursuant to the Unlawful Flight to Avoid Prosecution Act, 18 U.S.C. 1073.
Step 3: Contact the FBI
Once a warrant is issued under either 18 U.S.C. 1204 or 1073, the Federal Bureau of Investigation undertakes the investigation and seeks to arrest the removing parent.
Step 4: Register with the Department of Justice
Take all court orders and proofs of notice and file a complaint with the local municipality for criminal interference with custody, and request immediate assistance. This request will prompt the municipality to register with the Department of Justice Crime Information Center computer.
Step 5: Contact the Department of State
The Department of State can be of assistance in a number of ways. Phillip Schwartz, Getting a Child Back: How the State Department Can Help, 15 Fam. Advoc. 42 (Spring 1993).
The Office of Children's Issues of the State Department provides a route for access to information from ICPO-Interpol. ICPO-Interpol, in turn, can circulate a notice of the kidnapping among the 169 member nations. The State Department can also alert Passport Control to withdraw the ability to obtain or replace a United States passport. Finally, the State Department can transmit an application for location and return. The telephone number for the Office of Children's Issues at the Department of State is (202) 736-7000.
Go to: Child Abduction Category
Go to: Cases of Interest by Category
Go to: Previous Page
| Featured Services | |
|
| The Research Center: (Divorce Cases of Interest) | Research Home | ||||
Find Case Law, Case Analysis, and Divorce Information...
| |||||
Copyright© 1996-2009. All rights reserved by Divorce Source, Inc.
Comments & Suggestions? or Recommend This Page to a Friend!