Official Publication of the Minnesota State Bar Association


Vol. 61, No. 11 | December 2004
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International Parental Child Abduction
By Valerie Downing Arnold and Thomas Tuft

According to the U.S. Department of State, since the late 1970s its Office of Children’s Issues has been contacted in the cases of approximately 16,000 children who were either abducted from the United States or prevented from returning to the United States by one of their parents.  The Department of Justice reported in 2002 that based on research by its Office of Juvenile Justice and Delinquency Prevention, 203,900 children were victims of family abduction in 1999 and of these, 21 percent were gone for more than one month.  How many of these were victims of international abduction is not reported.  What is certain is that whether responding to the threat of an international parental child abduction, an abduction in progress, or the fact of a child having been unlawfully retained by a parent outside of the United States, the family law practitioner can play a critical role in obtaining a favorable outcome.

PREVENTIVE STRATEGIES

Preventing an international parental abduction is a complex endeavor, which may include practical defenses as well as legal remedies. Outside of the court system, the U.S. Department of State and the National Center for Missing and Exploited Children1 offer a variety of tips and resources for parents facing the possibility of an abduction, e.g., keeping a list of the addresses and telephone numbers of the other parent’s relatives, friends, and business associates, both here and abroad.  Inside the court system, a family court proceeding can offer a variety of protective orders, including orders to:

  • hold a parent’s passport during parenting time;
  • hold the child’s passport during parenting time;
  • specifically restrict or set conditions on travel outside of the state or country;
  • require that a bond be posted as a condition of parenting time;
  • require supervised parenting time;
  • deny parenting time entirely.

Arguing for the best measures to address the risk of parental flight is similar to arguing bail for a criminal defendant with at least one caveat: in the former case, the court must balance the risk of parental flight against the best interests of the minor child.2 Over- and under-protective judicial responses may have an equal ability to trigger a parental abduction. A court that fails to respond adequately to legitimate concerns of flight may lead a parent to go into hiding with the child to prevent abduction by the other parent.  Conversely, an overzealous response by the court may persuade an “at risk” parent to see abduction of the child as the only recourse or, at the other extreme, to withdraw from the child’s life in response to restrictions on parenting time that are seen as humiliating or unjustified.

Obtaining appropriate relief from the court requires an effective presentation of risk to the court, which may include consideration of the following:

  • the “at-risk” parent’s ties to the local community;
  • the means available to the “at-risk” parent and his or her motivation to leave;
  • remedies that would be available under foreign law to secure the return of the child in the event of abduction to a particular country;
  • whether the country to which flight is considered likely is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter Hague Convention);
  • whether the United States has an extradition treaty with that country which would take effect if criminal charges were filed.

As of 2004, there were 58 signatories to the Hague Convention.3  If the country of concern is a signatory to the Hague Convention, it is also important to consider that country’s history of compliance in Hague cases. The 2004 Department of State report to Congress on compliance with the Hague Convention names Austria, Colombia, Ecuador, Honduras, Mauritius, Mexico and Turkey as “Noncompliant.”  It identifies Romania and Switzerland as “Not Fully Compliant.”  Greece, Hungary, Israel, Panama, Poland and The Bahamas are listed as “Countries of Concern.” 

Particularly in situations where the country to which abduction is feared is not a signatory to the Hague Convention, the court may be interested in the human rights record of that country and/or its judicial system. The U.S. Department of State is a good source for such information.  Country-by-country reports are accessible through the Department’s Web site at: http://www.state.gov/g/drl/rls/hrrpt/.

Contacting an attorney in the country of concern may offer additional information and can save critical time coordinating recovery efforts if preventative measures fail.

RETRIEVING AN ABDUCTED CHILD

Once a child has been unlawfully taken abroad or retained outside of the United States, a parent must choose the best remedy for obtaining the return of the child. While criminal prosecution of the abduction or wrongful retention may be an option,4 an action under the Hague Convention, if available, is often times the most effective and expeditious means to obtain the return of the child.

Bringing a successful action under the Hague Convention requires coordination of efforts between counsel in both countries that are involved.  Indeed, such coordination may be the critical element in engaging resources to effect the return of the child. Once the abduction has taken place, the parent left behind and/or their counsel should:

1. Contact law enforcement in the state from which the child was abducted;
2. Contact the National Center for Missing and Exploited Children (acting U.S. Central Authority);
3. Obtain an emergency custody order/warrant from the state from which the child was taken;
4. Contact an attorney in the country where the child is believed to be located;
5. File an application for the return of the child under the Hague Convention;
6. Obtain a Certificate of Wrongfulness under Article 15 of the Hague Convention from the state from which the child was abducted.

Similar to parental child abductions within the United States, international child abductions often times occur simply because a parent wants to obtain custody of the child and expects a more favorable ruling can be had “on their home turf.”5 The Hague Convention combats the problem of child abduction by a parent in much the same way as the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA)6 and the Parental Kidnapping and Prevention Act7 as amended by the Visitation Rights Enforcement Act, which limits the subject matter jurisdiction of the court in the state to which the child is abducted. With few exceptions, if the child has been wrongfully removed from his or her place of habitual residence under the Hague Convention, the return of the child is mandatory and the state to which the child has been taken is without subject matter jurisdiction over the merits of the custody dispute.8 

To obtain an order for the return of a child under the Hague Convention, the parent must establish that the removal or retention of the child is wrongful by showing that:

1. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and
2. at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.9

Rights of custody include rights relating to the care of the person of the child and the right to determine the child’s place of residence.10

In representing a client whose child was abducted to or wrongfully retained in Minnesota, the central authority or attorney in the abducted-from state will bear the primary burden of collecting evidence to establish the wrongful removal.  Conversely, if the child was abducted from Minnesota, the local attorney will play the critical role in compiling the necessary evidence to establish a wrongful removal for the attorney in the abducted-to state.

Establishing Rights of Custody.  Establishing a parent’s “rights of custody” sounds deceptively easy.  A family law practitioner intuitively knows that rights of custody exist; however, Minnesota law does not explicitly recognize these rights outside of a judicial proceeding. Minnesota’s marriage dissolution statute does not assign or define any de jure rights of custody prior to the court issuing its first temporary order.11 In paternity cases, signing a Recognition of Parentage adjudicates the father, but assigns custodial rights to the mother without even a general reference to a right of reasonable access for the father.12 For fathers who have not yet been adjudicated or for parents of a child in a same-sex partnership, Minnesota law again is silent. 

The United States Supreme Court has long recognized parents’ fundamental rights to exercise care, custody and control of their children under the Constitution.13 Unfortunately, arguing U.S. constitutional law to a foreign court and having to translate the Constitution (not to mention relevant Supreme Court precedent) in the process could prove to be an overly burdensome task.  Absent action by the Minnesota Legislature, under Minnesota law a parent’s “rights of custody” arguably derive from their implicit existence in Minnesota’s criminal, dissolution of marriage, child protection, third-party custody, and grandparent visitation statutes. The International Child Abduction Remedies Act,14 which establishes procedures for the implementation of the Hague Convention in the United States, lends support to this argument by specifically providing that “the terms ‘wrongful removal or retention’ and ‘wrongfully removed or retained’, as used in the Convention, include a removal or retention of a child before the entry of a custody order regarding that child.”15 

As to establishing the actual exercise of these rights at the time of the abduction, the widely cited Friedrich v. Friedrich16 case holds that the term “exercise” is to be construed liberally and includes whenever the parent “keeps, or seeks to keep, any sort of regular contact with his or her child.” Friedrich additionally opines that the abducted-to state is not to analyze the adequacy of the parent’s exercise of custody rights.

Place of Habitual Residence. The Hague Convention does not define a child’s habitual residence except to provide that it is the place where the child resided habitually at the time “immediately before the removal or retention.”17 The 8th Circuit Court of Appeals’ 2003 decision in Silverman v. Silverman18 provides some general guidelines for further interpretation of this term:

  • The concept of “habitual residence” is distinct from the concept of domicile and the UCCJEA’s definition of “home state.”19
  • In determining the child’s place of habitual residence, the court must consider that a child can have only one habitual residence and that the habitual residence must encompass some form of settled purpose.
  • This “settled purpose must be from the child’s perspective, although parental intent is also taken into account.”

If Minnesota is the abducted-from state, local counsel can assist in obtaining an order declaring that the abduction of the minor child was a wrongful removal within the meaning of Article 15 of the Hague Convention.  This determination can be obtained in state or federal court and is accorded varying degrees of weight by foreign jurisdictions.20   If Minnesota is the abducted-to state, it may be helpful to seek such a determination from the abducted-from state.

In cases where civil remedies are ineffective, criminal prosecution may be necessary to create a basis for extradition of the abducting parent and/or to enlist diplomatic resources to assist in obtaining the return of the child from a foreign government.21

Final Considerations

Being prepared for the worst is often times the best protection against an international parental child abduction. However, even in these most extreme cases, the family law practitioner should not overlook practical solutions to custody disputes, which split families across international borders. Winning the battle over jurisdiction is costly, often times lengthy, and can ultimately, through no fault of the left-behind parent, result in a loss of custody once the merits of the custody case are heard by the appropriate jurisdiction. While a child is in the sole care of the abducting parent, he or she can become alienated from or lose memories of the other parent.  In cases of bilingual households, young children are particularly susceptible to losing the ability to communicate in the second language with the left-behind parent. Recognizing the emotional bond between the abducting parent and the child, courts may be reluctant to destabilize the child’s life again by removing the child from the abductor — who has become the primary caregiver — to place the child with a parent who has become a virtual stranger.  If the facts of the situation permit, negotiating a settlement that can be enforced in the competing jurisdictions may ultimately be the best result for your client.

NOTES
1. http://travel.state.gov/family/abduction

_prevention.html.

2. Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10 (Minn. App. 1992).

3. A list of signatory countries to the Hague Convention along with the effective date of participation for each can be accessed at: http://travel.state/gov/family/adoption_hague

_list.html.

4. The federal International Parental Kidnapping Crime Act of 1993 (ipkca) makes international child abduction a felony and imposes criminal fines and/or imprisonment on anyone who removes a child from

the United States unlawfully or unlawfully retains a child in a foreign country.  10 U.S.C. §1201.

5. See Tuft and Downing, “Determining Child Custody Across Jurisdictions,” 56 Bench & Bar 11 (December 1999), 34-36.

6. Minn. Stat. Ch. 518D.

7. 28 U.S.C. §1738A (1980).

8. In Re Application of Salah, 629 N.W. 2d (Minn. App. 2001).

9. Hague Convention, Art. 3

10. Id. at Art. 5.

11. Minn. Stat. Ch. 518.

12. Minn. Stat. §257.75.

13. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000) (citing Meyer v. Meyer, 262 U.S. 390, 399, 401, 43 S. Ct. 625, 67 L. Ed. 1042 (1923) and Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S. Ct. 571, 69 L. Ed. 1070 (1925)).

14. 42 U.S.C. §§11601-11610.

15. 42 U.S.C. §11603(f).

16. Friedrich v. Friedrich, 78 F.3d 1060 (D.C. Ct. App. 1996).

17. Hague Convention, Art. 3.

18.  Silverman v. Silverman, 338 F. 3d 866 (8th Ct. App. 2003).

19. Id. at 898, 892 (citations omitted).

20. 2004 State Department Report to Congress.

21 Merritt L. McKeaon, “International Parental Kidnapping: A New Law, a New Solution,” 30 Fam. L.Q. 1 (Spring 1996) 235- 244, 240.


VALERIE ARNOLD is shareholder with Tuft & Arnold, PLLC.  Ms. Arnold practices exclusively in the area of family law with an emphasis on interstate and international child custody and third-party custody cases.

THOMAS TUFT is a shareholder with Tuft & Arnold, PLLC.  His practice includes all areas of family law with a focus on complex dissolution and interstate and international custody.  He is a fellow of the American Academy of Matrimonial Lawyers.