Parental Child Abduction
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
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
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:
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
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
a child has been unlawfully taken abroad or retained outside of the
a successful action under
1. Contact law enforcement in the state from which the child was abducted;3. Obtain an emergency custody order/warrant from the state from which the child was taken;
2. Contact the
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.
to parental child abductions within the
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:
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
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
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
Rights of Custody. Establishing a parent’s “rights of custody”
sounds deceptively easy. A
family law practitioner intuitively knows that rights of custody exist;
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,
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:
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
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.
2. Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d
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
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
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).
Re Application of Salah, 629 N.W. 2d (
9. Hague Convention, Art. 3
11. Minn. Stat. Ch. 518.
13. Troxel v. Granville, 530
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 (
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