One of the worst outcomes of an angry divorce happens when one spouse abducts the children from the custody of the other. Abduction of a child, the act of one parent, often the noncustodial parent, illegally taking or removing a child in violation of a court order, either across state lines and abroad or both, creates fear and misery in the lives of many children of divorce.
Of the thousands of missing children each year, many are abducted by one of the parents after a bitter divorce. Some of these children disappear in America; some vanish abroad. The abduction of a child by an alienated parent ultimately deranges the lives of all involved.
"The U.S. Department of Justice divides child abduction into three categories: those committed by a relative of the victim, those performed by an acquaintance, and those committed by stranger. Of the three categories, the largest category of abductions involves one of the victim's parents. In parental abductions, mothers flee with the children 54 percent of the cases, while fathers abscond with the children 46 percent of the time. Abductions occur more frequently to children under six years old, and equally to children of both sexes."
Parental child abduction is not new. Two of the surviving children of the 1912 wreck of the Titanic- Michel and Edmond Navratil - were being kidnapped by their father who was attempting to escape his estranged wife. (The two brothers, three and two at the time, became known as the Titanic orphans, and Michel was the last male survivor, dying in 2001.)
In any highly contested child custody case, one parent may fear child abduction. According to the National Center for Missing and Exploited Children (NCMEC), some 800,000 children under the age of 18 disappear annually and of these, 203,900 were family abductions, 58,200 were nonfamily abductions, and only 115 were "stereotypical abductions." (This is defined in one study as "a nonfamily abduction perpetrated by a slight acquaintance or stranger in which a child is detained overnight, transported at least 50 miles, held for ransom or abducted with the intent to keep the child permanently, or killed." Even these categories can be misleading: Overstaying a visit with a noncustodial parent, for example, could qualify as a family abduction. Some individuals get entered into the database multiple times after disappearing on different occasions, resulting in potentially misleading numbers.)
Parental abduction is a crime. Children are not the property of their parents, and parental rights do not include illegal removal of a child to outflank a custody arrangement by taking the child across state lines.
"Post-divorce parental child stealing has been on the increase since the mid-1970s, paralleling the rising divorce rate and the escalating litigation over child custody," writes Dr. Nancy Faulkner, the author of "Parental Child Abduction is Child Abuse," a paper presented to the United Nations Convention on Child Rights. "The term 'parental kidnapping' encompasses the taking, retention or concealment of a child by a parent, other family member, or their agent, in derogation of the custody rights, including visitation rights, of another parent or family member."
"[A]n abducting parent views the child's needs as secondary to the parental agenda which is to provoke, agitate, control, attack or psychologically torture the other parent. "It should come as no surprise, then, that post-divorce parental abduction is considered a serious form of child abuse." According to Dr. Faulkner, children who are abducted suffer greatly. Among "the deleterious effects of parental child abduction on the child victim" are "depression, loss of community, loss of stability, security and trust, excessive fearfulness, loneliness, anger, helplessness, disruption in identity formation and fear of abandonment."
Legal Sanctions Against Abduction
Laws have been enacted to deal with parental abduction.
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 abduction. If a spouse moves during a divorce and attempts to file for custody in another jurisdiction, the law governing institution is complex. Once a state has jurisdiction in custody dispute, however, it is difficult to move it to another state. All states now have adopted UCCJEA. When parents live in different states, courts resolve custody fights under the terms of the UCCJEA. 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.
A custodial parent seeking to enlist UCCJEA in the return of a child is going to need the services of a lawyer.
When children are abducted in the United States, the Parental Abduction Prevention Act (PKPA) requires states to cooperate with each other in returning kidnapped children when the child custody judgments of sister jurisdictions are consistent with the provisions of the act.
In cases of international abduction, United States laws and court orders are not automatically recognized abroad and therefore are not directly enforceable there. Each country has jurisdiction within its own territory and over people within its borders. No country can tell another country how to decide cases or enforce laws. Just as foreign court orders are not automatically enforceable in the United States, United States court orders are not automatically enforceable abroad.
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. 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 is 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.
The National Center for Missing and Exploited Children (NCMEC) also provides help to individuals, parents, and agencies in locating and assisting in the return of missing children. It works with the Central Authority of the Hague Convention. The NCMEC toll free numbers are 800-843-5678 and 800-826-7653.
A parent who fears that a former spouse may abscond with the children must be vigilant. And here are a few practical measures recommended in case the other parent makes a grab for the child:
Useful Online Tools
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A TOUGH ACT-- Divorced parents must do everything married parents do and do it without the benefit of each other’s presence and reinforcement.
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How to Win Child Custody
Parent's Ability and Willingness to Cooperate: The Friendly Parent Doctrine, As a Most Important Factor in Recent Child Custody Cases
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