Can a parent kidnap their child? Unfortunately, it is a common illegal occurrence. As difficult as it is when this happens within a single state or when the child is taken across state lines, international parental child abduction cases present additional challenges and fall under international laws, including the Hague Convention for member countries. With this in mind, here is critical information for parents – especially parents in bitterly contested child custody cases – regarding parental child abduction cases and how they may be handled:
What Is Parental Abduction?
Parental abduction of a child occurs when one parent unlawfully takes or hides the child in defiance of court orders regarding the rights of the other parent or another family member(s). Parental child abduction cases often occur before or even during divorce proceedings. Child abduction also happens when the child is not returned to the other parent after an approved time of visitation, or when a parent flees with a child to prevent the other parent from spending approved time with the child. Parental child abductions might also be a maneuver whereby a parent seeks to avoid handing over the child to authorities in child endangerment situations, or to protect the child from being returned to an abusive parent. Sadly, in any such abduction situation, the child is, essentially, held hostage by the abducting parent.
When Is Interstate and International Relocation Allowed?
It is fairly common for divorcing or divorced parents to reside in different U.S. states. When an interstate custody dispute arises, the rules governing which state has custodial jurisdiction are set forth in the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA (sometimes also known as the UCCJA). Except for Massachusetts, every U.S. state plus the District of Columbia has adopted and enacted the UCCJEA. There are several standards contained in the Act that determine the “home state” for the child and govern which single state will have custodial jurisdiction. When a parent relocates to a different state after custody and visitation arrangements have been decreed by the court, visitation rights might need to be reconsidered, warranting the filing of a request for modification of the prior order.
Likewise, sometimes the two parents end up residing in different countries. Trial court judges in divorce proceedings – in keeping with their mission to serve the best interests of the child – will consider requests for international relocation of the child and rule per prevailing laws and regulations. In situations where the child is removed from the home country unlawfully and an international child abduction has occurred, the “Hague Convention” will likely come into play.
What Is The Hague Convention?
The Hague Convention (formally, The Hague Convention on the Civil Aspects of International Child Abduction) is an international treaty that seeks to ensure the prompt return of children abducted from their home country (or “country of habitual residence”). The Convention only applies to children under age 16 and does not decide which parent should have custody; rather, it upholds the current home country child custody arrangement and seeks to facilitate the return of the child to the home country. More than 100 countries have adopted the Hague Convention.
When a child is abducted and taken to a country that is a “member state” which has adopted the Convention, any litigation seeking to have the child returned to the home country will likely ensue under the Hague Convention in the foreign country where the child has been taken. This process begins by filing a verified motion setting forth the facts showing the court has jurisdiction under the Hague Convention and seeking a return order to have the child returned to his or her country of habitual residence.
Under the International Child Abduction Remedies Act (“ICARA”), the aggrieved parent who filed the Hague Convention action has the burden of proving the child has been abducted or wrongfully withheld (removed, retained or access rights denied) within the meaning of the Convention. Naturally, international legal proceedings can be complex, time-consuming, and costly.
In parental child abduction cases where a child is brought into the United States and the foreign (home) country is not a member state under the Convention, the UCCJEA may be applied to attempt to facilitate return of the child or to defend against a return order.
Can a parent kidnap their child? Not legally, of course. Unfortunately, parental child abduction cases occur for a variety of reasons, both within the United States and across international borders. Here are some important considerations:
- Parental abduction of a child happens when one parent unlawfully takes or hides the child while defying court orders regarding the rights of the other parent or another family member(s)
- Regardless of the reason(s) for the abduction, the child is, essentially, held hostage by the abducting parent
- When an interstate custody dispute arises, governing rules are set forth in the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA
- When a child is removed from the home country unlawfully, the Hague Convention on the Civil Aspects of International Child Abduction will likely come into play
- The Hague Convention seeks to ensure the prompt return of children abducted from their home country. It applies to children under age 16 and does not decide which parent should have custody; rather, it seeks to facilitate the return of children to their home country.
At Ciyou & Dixon, P.C., we are divorce and child custody attorneys with decades of collective experience informing and assisting clients throughout the State of Indiana in child custody matters, including domestic and international child abductions.
This blog post provides general educational material about parental child abduction cases. Being an educated legal consumer can help you make the most of the legal experience in meeting your legal objectives. This information is presented by attorneys at Ciyou & Dixon, P.C. who practice throughout the State of Indiana. It is not a solicitation, nor is it intended to provide specific legal advice. It is an advertisement. Information contained herein is subject to change.