International Parental Kidnapping
Section 1204 of Title 18, United States Code, makes it a federal crime for a parent to remove or attempt to remove a child from the United States, or retain a child outside the United States with intent to obstruct another parent's custodial rights. A parent who removes a child from the United States in this capacity is subject to federal prosecution, and if convicted, faces fines and imprisonment for up to 3 years.
It is important to distinguish between the prosecution of the parent who kidnapped a child and the return of that child to the United States. Extradition is the legal surrender of an alleged criminal to the jurisdiction of another country. Although the parent who removed the child from the United States is generally eligible for formal extradition because they are charged with a federal crime, the child is a victim of international parental kidnapping and often not eligible for formal extradition. In other words, federal prosecutors may investigate and prosecute the parent, but they typically have no control over the return of the child or custodial decisions affecting that child.
The return of internationally kidnapped children is often settled through negotiation. The U.S. Department of State handles the coordination of efforts with foreign officials and law enforcement agencies to effectuate the return of children to the United States. In some circumstances, the return may be governed by the Hague Convention on the Civil Aspects of International Parental Child Abduction (1980). This Convention was established to facilities the return of children abducted into foreign countries. The Convention only applies if both countries involved in the international parental kidnapping situation are signatories to the Convention. The United States is a signatory country.
Every year, situations of international parental kidnapping are reported in the United States. It is common for the removal of a child to occur during a heated or emotional marital dispute, in the early stages of separation or divorce, or in the waiting period for a court custody order or agreement. International parental kidnappings of U.S. children have been reported in countries all over the world, including Australia, Brazil, Canada, Colombia, Germany, India, Japan, Mexico, Philippines, and the United Kingdom.
Child victims of international parental kidnapping are often taken from a familiar environment and suddenly isolated from their community, family, and friends. They may miss months or even years of schooling. The child may be moved to multiple locations in order to stay hidden or out of reach of the parent remaining in the United States. In some cases, the child´s name, birth date, and physical appearance are altered or concealed to hide identity.
In addition, the tense and unfavorable situation between the parents may be emotionally troubling to a child. Kidnapped children are at high risk for long-term psychological problems including anxiety, eating disorders, nightmares, mood swings, sleep disturbances, and aggressive behavior. As adults, child victims of international parental kidnapping may struggle with identity, relationship, and family issues.
Legal Hurdles and the Return of a Kidnapped Child to the United States
Under federal law, prosecutors may investigate and prosecute the parent who kidnapped the child, however, prosecutors generally have no control over the custodial decisions affecting the child or whether foreign authorities will order the return of the child.
The return of kidnapped children is often settled through negotiation. The U.S. Department of State handles the coordination of efforts with foreign officials and law enforcement agencies to effectuate the return of children to the United States. In some circumstances, the return may be governed by the Hague Convention on the Civil Aspects of International Parental Child Abduction (1980). This Convention was established to facilitate the return of children abducted to foreign countries. However, it only applies if both countries involved in the international parental kidnapping situation are signatories to the Convention. The United States is a signatory state.
Adhering to the provisions of the Convention, when applicable, and working with the U.S. Department of State are the best methods to legally and safely return a kidnapped child to the United States. In acts of desperation, some parents will attempt to use extra-judicial forms of recovery, such as personally traveling to the foreign country to recover a child. Although it may seem easier and faster to use extra-judicial methods, they often violate U.S. federal laws and the laws of the foreign country involved, and may potentially exacerbate the situation. For example, the parent who kidnapped the child may have sought assistance from a foreign court or obtained a foreign custody order. In such circumstances, the other parent's direct removal of a child from the foreign jurisdiction, without the assistance of the U.S. Department of State, could result in his or her arrest or even imprisonment in that foreign country. Furthermore, any unlawful attempt to recover a child may adversely impact a have a petition for return under the Hague Convention.
The Child Exploitation and Obscenity Section (CEOS) provides advice and litigation support to United States Attorney´s Offices throughout the country regarding international parental kidnapping prosecutions. While CEOS does not have the authority to intervene in the return of children, the section works directly with the U.S. Department of State and the National Center for Missing & Exploited Children (NCMEC) to monitor active international parental kidnapping cases and provide legal assistance.
In addition, CEOS conducts trainings for federal prosecutors and law enforcement personnel on federal international parental kidnapping law and its interplay with the Hague Convention on the Civil Aspects of International Parental Child Abduction (1980).
Child Custody and Visitation Matters
With the exception of international parental kidnapping, child custody and visitation matters are handled by local and states authorities, and not by the federal government. The matters are governed by the relevant state family court system and human services agency. Therefore, child custody or visitation issues should be reported to state or local law enforcement authorities or a state judicial officer.