Overview

International Parental Kidnapping Defined
Parental Kidnapping Victims
Scope of the Problem
Overview of the Legal Response

International Parental Kidnapping Defined

International parental kidnapping encompasses taking, retaining, or concealing a child outside the country in which the child normally resides by a parent, his or her agent, or other person in derogation of another’s parental rights, including custody and visitation rights. These rights may arise by operation of law, by legally binding agreement of the parties, or by court order.

The terms "international parental kidnapping" and "international child abduction" are used interchangeably in this report and include both wrongful removals and retentions of children. The "abduction" itself may range from a taking employing violence, false identifiers, and altered appearances, to the retaining of a child after a period of lawful custody or visitation. These cases typically involve the wrongful removal or retention of a child by a parent in derogation of the other parent’s parental rights. However, they may also involve takings or retentions by parents or other family members in violation of custody rights exercised by nonfamily members, such as lawful guardians or State agencies.

International abductions or retentions often involve dual nationals, i.e., a parent who is a citizen of both the United States and another country. The child may also be a dual national. Further, it is common for abductions or retentions to occur before custody has been decided by a court or even before a divorce or custody proceeding is underway.

It is important to note that no two cases of international parental kidnapping are identical. Just as cases differ, so will appropriate and effective responses. What is appropriate for one case may be counterproductive in another. The challenge is to use the right combination of private and public resources to achieve a satisfactory resolution.

Parental Kidnapping Victims

An abducted or wrongfully retained child is a victim, as are those whose parental rights are obstructed. The victim child is wrested from a familiar life, cut off from one parent, and thrust involuntarily into a new reality. Abductions take an emotional toll on all involved.

Practical problem: Left-behind parents often lack the resources to obtain counseling for themselves and their children. See section 2, gap 9 and recommendation 9.6.² Also see gap 8, recognizing the extreme stress left-behind parents may experience, and recommendation 8.2, calling for sensitivity training for agency personnel who interact with left-behind parents and training on crime victims’ rights.

Scope of the Problem

"Outgoing" cases involve children wrongfully removed from the United States and taken to or wrongfully retained in a foreign country. In calendar year 1998, the Department of State had a caseload of 503 new outgoing cases, for a total caseload of approximately 1,100 outgoing international child abduction cases. (Each outgoing "case" represents one child.) Just under half (49 percent) involved removals to or retentions in countries that are party to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), discussed below. The actual number of outgoing cases is unknown because some parents never contact the Department, but instead go directly to the foreign central authority for the Hague Convention or to the courts abroad.

"Incoming" cases involve children wrongfully removed from other countries and taken to or wrongfully retained in the United States. In 1998 there were 241 new incoming cases involving the Hague Convention. (Each incoming case represents a "family group," i.e., one or more children.) Over the 3-year period that the Department of State has had the National Center for Missing and Exploited Children (NCMEC) handle incoming cases on its behalf, the organization has processed 1,002 incoming Hague applications. Data on the number of abductions from non-Hague countries to the United States are not available.

Practical problem: The total number of international parental kidnapping cases is not known. Although some entities, including the Office of Children’s Issues (OCI) and NCMEC in the Department of State, collect data on international parental kidnapping cases, there is no governmentwide, systematic, integrated process to gather and analyze data. Such a system would serve a variety of purposes, which are described in gap 2 and accompanying recommendations.

Overview of the Legal Response

Private international law (i.e., legal recourse that private parties such as left-behind parents pursue as the party in interest), facilitated by the Federal Government, provides for the recovery of children internationally. Any given effort to recover a child internationally may call upon public and private resources, as well as Federal, State, and local authorities. As to the wrongdoer, every State, territory, and the Federal Government criminalizes the abduction or wrongful retention of a child by his or her parent. In a particular case, any combination of informal, formal, civil, or criminal means may be the best course both to recover a child and to serve the ends of justice.

When a child is removed from the United States and wrongfully taken to or kept in another country, two distinct processes exist—one to return the child and the other to pursue the abductor. Civil legal remedies facilitate the child’s return. Once a child has been abducted, child recovery is a private civil legal matter between the parties involved under the laws of the country in which the child is currently located. Fortunately, a number of countries have joined the Hague Convention and thereby incorporated into their own domestic law the Convention’s precepts for the return of internationally abducted children. The Convention seeks to protect children from the harmful effects of international abduction by establishing private civil legal mechanisms to pursue an abducted child’s prompt return to his or her country of habitual residence. The Hague Convention is the primary mechanism preferred under U.S. law for the recovery of children abducted internationally. It is administered by the Department of State and discussed below.

In countries not party to the Hague Convention, child recovery is effected through private lawsuits under the laws of the country in which the child is located. Parents generally retain lawyers in the foreign country as well as in the United States to represent them and assist with the proceedings.

Criminal prosecution, in conjunction with international extradition, can address the perpetrator. The decision to charge a crime rests solely with the prosecutor and is made on a case-by-case basis. Not every abduction or wrongful retention is charged as a crime. State and Federal criminal parental kidnapping laws target wrongdoers; they do not address child recovery. Although a child may be located in the course of a criminal investigation of an abducting parent and may in fact be recovered as a byproduct of the criminal process, those left behind cannot rely upon the criminal process for a child’s return. A parent must be prepared to pursue civil means to locate and recover a child simultaneously with the prosecutor’s pursuit of extradition and criminal prosecution of the abductor. Parents should be aware that in some situations pursuing criminal proceedings against the abductor may diminish the chance of child recovery. A list of civil and criminal laws that may apply in cases of international parental kidnapping appears in appendix 2.