Child Abduction (Kidnaping) and Recovery
Parental and family abduction of children is a serious problem in the United States today, involving every aspect of the legal system at both the State and federal level, and both the civil courts and the criminal justice system.
The U.S. Department of Justice (Office of Juvenile Justice and Delinquency Prevention) defines family abduction as the “taking or keeping of a child by a family member in violation of a custody order, a decree, or other legitimate custodial rights, where the taking or keeping involved some element of concealment, flight, or intent to deprive a lawful custodian indefinitely of custodial privileges.”
Over 200,000 abductions occur each year in the United States, 78% of which are perpetrated by family members. Over 1,000 of those violations are international in nature – where a parent takes a child from the United States to another country.
Once a court makes a child custody determination, the government is involved in where that child lives. Many parents are mistaken as to the consequences of removing a child from the jurisdiction that entered the order. Some parents apparently believe it to be acceptable to remove a child without the consent of the other parent or the appropriate court. That belief can have disastrous consequences for both the child and the abducting parent under State and federal law.
Civil Responses and Remedies
It is important to realize that just leaving the State does not deprive the divorce court of jurisdiction. Through a collection of statutes know as the Uniform Child Custody Jurisdiction and Enforcement Act, the court in Nevada generally retains jurisdiction so long as either party remains here, even if the child and the other party leave the State. The rules can be complex, but we have the materials for a course we teach to other lawyers about how those laws work that can be reviewed here.
In addition to regular custody or visitation motions in family court, there are pre-emptive orders that can be sought through the Uniform Child Abduction Prevention Act (“UCAPA”). Nevada was the second state to adopt the Act, in 2007, to curtail the threat of child abduction.
The Act, codified in NRS-125D, allows Nevada courts to issue “abduction prevention orders” after they have reviewed a standardized list of factors determined to predict the likelihood of abduction. The list of factors courts consider include whether a party has previously abducted the child, or has threatened to abduct the child; has engaged in domestic violence; has refused to follow a custody order; or has strong family or cultural ties to another State or country.
NRS 125D allows the courts of Nevada to prevent the imminent abduction of a child by issuing a warrant to take physical custody of the child pursuant to NRS 125D.200 or directing law enforcement to take any action reasonably necessary to locate the child and order return of the child. The court may also grant “any other relief allowed under the law” to prevent an abduction.
An abduction prevention order can remain in effect until the child becomes emancipated or turns 18 years of age. This lengthy protection can help ensure that the subject child is never the victim of an unlawful abduction.
Since 1988, the United States has been a party to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) in response to the problem of international child abductions during domestic disputes. It was codified into U.S. law by way of the International Child Abduction Remedies Act (“ICARA”). As an international treaty, the Hague Convention is on par with the U.S. Constitution, and supersedes any conflicting law.
The purpose of the Hague Convention is to ensure the “prompt return” of children who have been abducted across international lines to their habitual country of residence. The Convention seeks to restore the status quo of living arrangements and deter parents from crossing international borders in search of a more sympathetic court.
The Convention does not give rise to custody proceedings; it simply permits the return of children to their habitual place of residence, where custody proceedings can then be held. Not all countries are parties to the Convention, and it only applies if both the country from which the child is taken, and to which the child is brought, are parties to the Convention.
A Hague case is filed in the place to which the child has been taken. So such a case is filed in Nevada when a child is abducted elsewhere and brought here. If a child abducted from Nevada and brought somewhere else, an application for return can be made to the United States Central Authority, which then forwards the application to the place to which the child was taken so a case can be filed there.
Hague cases are unusual in that federal and State courts have “co-extensive jurisdiction” – they may be heard either in Nevada State court, of federal court. In general, a Hague case should be filed in whichever court would hear the matter most quickly; often, this is federal court.
A court hearing a Hague case has authority to determine the merits of an abduction claim only, not the merits of an underlying custody claim. The court will determine only whether the removal or retention of the child in another country was “wrongful” under the Convention and, if so, order the return of the child unless the alleged abductor can establish one of a very few valid defenses.
The most important defenses are that the left-behind parent consented or acquiesced in the removal or retention, or that there is a “grave risk” of physical or psychological harm to the child if returned, or that a child of sufficient “age and degree of maturity” objects to being returned.
Marshal Willick wrote both summary and extended articles concerning the Hague Convention and internationally abducted children: International Kidnapping and the Hague Convention_ A short introduction & International Kidnaping Response for Fun and Profit. He also designed two flowcharts on the legal test and procedural process of Hague cases: Hague Convention Legal Tests & Hague Convention Procedural Steps. Mr. Willick’s flowcharts have been adopted and posted by the National Center for Missing and Exploited Children. For attorneys, the posted materials on our Published Works page includes a forms set.
Criminal Responses and Remedies
In addition to steps litigants can take in the civil courts, parental or family abduction of children can lead to criminal prosecution.
In Nevada, the abduction, concealment, or detention of a child in violation of a court order regarding custody is punishable as a category D felony. NRS-125. A category D felony is a serious offense for which the sentence is imprisonment for 1 to 4 years and/or a fine of up to $5,000. In most cases, however, prosecutors recommend lesser sanctions for a first offense. In either case, the abducting parent can be held responsible for any expenses incurred in locating and recovering the child. NRS 200.359(5). Such an abduction could be in-State, across State lines, or international.
Under U.S. law, international parental child abduction is a federal crime pursuant to 18 U.S.C. § 1204 (the “International Parental Kidnapping Act”). That statute makes it a federal crime to remove or retain a child in a foreign country with the intent to obstruct the lawful exercise of parental rights. Such an offense is punishable by fine and/or imprisonment for no more than 3 years.
WILLICK LAW GROUP has extensive experience handling child abduction cases and has represented many clients in such cases in both State and federal courts. We take seriously our responsibility to advise our clients regarding every available option under the law, and to represent our clients in these sensitive matters, always with an eye towards the welfare of the children involved.
Citations and Links
ICARA — 42 U.S.C. §§ 11601-11610 – International Child Abduction Remedies Act
NRS-125D – Uniform Child Abduction Prevention Act
International Parental Kidnapping Act – 18 U.S.C. § 1204
Hague Convention on the Civil Aspects of International Child Abduction, Oct. 24, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11
Heather Hammer, David Finkelhor, & Andrea J. Sedlak, Children Abducted by Family Members: National Estimates and Characteristics, nismart2_familyabduction.pdf (October 2002)
Ogawa v. Ogawa Opinion