Child Abduction During a Divorce
The abduction of children is a far more serious problem than child relocation because it involves criminal behavior by one parent, often the noncustodial parent, illegally taking or removing a child in defiance of a court order, either across state lines and abroad or both.
Of the thousands of missing children each year, many are abducted by one of the parents after a bitter divorce. Many custodial parents fear child abduction by an angry former spouse.
Wrongful removal or retention of a minor child is a breach or violation of the other parent’s custody rights under the laws where the child is a habitual resident.
Parental kidnapping of children is nothing new. Two of the surviving children of the wreck of the Titanic were being kidnapped by their father.
Parental kidnapping is a crime. According to the Department of Justice, some 200,000 children were kidnapped by a family member in 2002. Some of these children disappeared in America; some were taken abroad.
The Parental Kidnapping Prevention Act (PKPA) requires states to cooperate with each other in returning kidnapped children when the child custody judgments of sister states are consistent with the provisions of the act.
Unfortunately in cases of international abduction, United States laws and court orders are not automatically recognized abroad and therefore are not directly enforceable there.
At the Hague Conference on Private International Law in 1976, 23 nations agreed to draft a treaty to deter international child abduction. Between 1976 and 1980, the United States was a major force in preparing and negotiating the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or the Convention). The Convention was incorporated into U.S. law and came into force for the United States on July 1, 1988. The enabling legislation for Hague Convention is the International Child Abduction Remedies Act (ICARA), 42 U.S.C. Section 11601-11610.
At the heart of the Convention is established procedure for dealing with international child abduction. These protocols include the Central Authority, CA, which handles the responsibilities of the Convention. In the United States the CA is the Department of State’s Office of Children’s Issues.
The Convention also defines the child’s habitual residence, which is the child resides "as of habit" or permanently, for the purposes of the law. It provides that the children will not be returned when the return of the child would expose him or her to physical and psychological harm or an intolerable situation called a "grave risk of harm."
As of July 2001, the Convention was in force between the United States and 50 countries. The Convention applies to wrongful removals or retentions that occurred on or after the date the treaty came into effect between those two countries. The dates vary for each country and more countries are considering signing on to the Convention. A parent must check the most recent list prepared by the Office of Children’s Issues to learn whether the Convention was in force in a particular county at the time of the wrongful removal or retention.
Parental rights do not include illegal removal of a child to outflank a custody arrangement by taking the child across state lines. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a uniform law regarding custody and visitation for parties from different states, is designed to discourage and prevent parental kidnapping. If a spouse moves during a divorce and attempts to file for custody in another jurisdiction, the law governing jurisdiction is complex. Once a state has jurisdiction in custody dispute, however, it is difficult to move it to another state.
Most but not all states have adopted UCCJEA. A parent disputing custody is going to need the services of a lawyer.
Common Questions and Answer
Q. Where can a parent to learn more about what to do about child abduction?
A. A good place to start for information for information about interstate custody fights is a publication of the Department of Justice, available at www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf. The National Center for Missing and Exploited Children (NCMEC) provides help to individuals, parents, agencies in locating and assisting in the return of missing children. It works with the CA of the Hague Convention. NCMEC toll free numbers are 800-843-5678 and 800-826-7653.
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