Child Abduction and Kidnapping

 

It has been estimated by the US National Center for Missing and Exploited Children that nearly 800,000 children are abducted in the U.S. each year. Child abduction is the illegal taking of a minor out of the custody of his or her birth parents or legally appointed guardians. Although it is a prevalent issue our society faces, numerous actions are taken each year to prevent abduction or help recover those children who have be taken.

 

Should a parent take the incredible step of abducting a child, the Full Faith and Credit clause of the U.S. Constitution guarantees that individual states will cooperate with their fellow states' agencies to attempt to locate children and bring them home. In the international sphere, where an abductor takes a child out of the jurisdiction of the U.S. government, things are not so simple. Parents should be aware of the special tenuous legal standing, notwithstanding the passage of international agreements, they possibly face when seeking to engage foreign judicial entities for assistance and/or compliance with international laws on kidnapping. Some tools that are available are as follows:

​

The Parental Kidnapping Prevention Act, or PKPA, is a federal law enacted in 1980 that attempts to reduce interstate conflicts over jurisdiction and discourage “forum shopping” by parents who are dissatisfied with an existing or pending custody order made pursuant to the laws of their child’s “home state”. The act deems it a federal felony to either: remove a minor child from the United States or retain a child outside of the United States with the intent to obstruct lawful exercise of parental rights.

​

The purpose of the PKPA was to assert the jurisdictional supremacy of a child’s “home state” in matters pertaining to child custody and visitation. Prior to the passage of the PKPA, jurisdiction in child custody and visitation was typically determined either by the “home state” standard or the “significant connection” standard. The “home state” standard maintained that a child’s “home state” was the state where they had resided for at least six months prior to the filing of the custody action, whereas the “significant connection” standard maintained that a “significant connection” to a state was valid grounds for jurisdiction when there existed substantial evidence of such a connection. However, there were instances in which the “home state” and “significant connection” standards applied in two different states. For instance, a child may have a “significant connection” to one state while the other state is considered the child’s “home state."

 

At present, the act states four grounds under which a court may assume jurisdiction. 1. the state is the child's home state; 2. the child has a significant connection to the state; 3. the court determines that emergent circumstances warrant it making a ruling; 4. it is determined that the state is the more appropriate forum in which to determine custody.

​

The “emergency” grounds for jurisdiction apply in cases where there is evidence of abuse or danger to the child, whereas the “more appropriate forum” standard applies when no other grounds for jurisdiction can be identified. Kidnapping by parents or parental abduction has become a serious offense in the United States.

 

The Hague Convention on the Civil Aspects of International Child Abduction or simply Hague Convention, is a multilateral treaty developed by the Hague Conference on Private International Law (HCCH) that seeks to provide an expeditious method to return a child internationally abducted by a parent from one member country to another. As of September 2017, 98 states are party to the convention.

 

The Convention was drafted to ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence. The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention, thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.

​

The Convention requires that a court in which a Hague Convention action is filed should not consider the merits of any underlying child custody dispute, but should determine only that country in which those issues should be heard. Return of the child is to the member country rather than specifically to the left-behind parent.The Convention requires the return of a child who was a “habitual resident” in a contracting party immediately before an action that constitutes a breach of custody or access rights. Though the Convention provides that all Contracting States, as well as any judicial and administrative bodies of those Contracting States, “shall act expeditiously in all proceedings seeking the return of a children,” and that those institutions shall use the most expeditious procedures available to the end," with an intent  that final decision be made within six weeks from the date of commencement of the proceedings, this is often not the case. Noncompliance with the terms and spirit of the Hague Convention has been a particularly difficult problem in its practical implementation. As of 2014, the United States has declared Brazil, Mexico, Romania, and Ukraine as "Countries with Enforcement Concerns."

​

If you believe your child is about to be abducted, or has already been abducted, you should immediately contact local authorities and speak with a knowledgeable attorney. The U.S. State Department Bureau of Consular Affairs also has information to help.

​

Return to Custody and Parenting Time

​

​