Myth vs. Reality

This will never happen to me!
Most parents who lost their children to International Parental Child Abduction (IPCA) say they never imagined this would happen to them, until it did. It is one of those issues that, no matter how much you have differences with your partner, the partner can never be that bad and you continue to trust that. The ugly reality is that almost all abductions are premeditated and well planned months in advance. Which means awareness of the problem can help prevent many if not all cases. There are 6 personality profiles that are helpful in predicting which parents may pose a risk of ab­duction – identified by Girdner and Johnston in their research report Prevention of Family Ab­duction Through Early Identification of Risk Factors:

  • Profile 1: Parents who have threatened to abduct or have abducted previously.
  • Profile 2: Parents who are suspicious or distrustful because of their belief that abuse has occurred and who have social support for their belief.
  • Profile 3: Parents who are paranoid.
  • Profile 4: Parents who are sociopathic.
  • Profile 5: Parents who have strong ties to another country and are ending a mixed- culture marriage.
  • Profile 6: Parents who feel disenfranchised from the legal system (e.g., those who are poor, a minority, or victims of abuse) and have family and social support.

http://traversecityfamilylaw.com/Documents/ResourceGuide_ParentalKidnapping2007.pdf

If only I knew it was going to happen, I could have prevented it!
Not as easy as you would think. The US has no exit controls. For children traveling with one parent, a notarized parental consent letter is “recommended” but not a mandatory requirement, according to US Customs and Border Patrol. The US Department of State in coordination with the Customs and Borders Patrol has recently extended the Prevent Departure Program to protect children who are at risk of abduction, but in order to enroll a child in this program, a concerned parent must first obtain a US court order which includes specific language restricting the child’s international travel. The US State Department also has a Children’s Passport Issuance Alert Program (CPIAP), however, a parent cannot refuse to consent for the child’s passport if the other parent has obtained a US court order allowing international travel. Moreover, there have been several cases where an abducting parent has secretly obtained a second passport for the child from their home country’s Embassy before fleeing the country.

Parental child abduction can’t be a crime, the child is with their other parent! A parent cannot be accused of abducting their own child!
“Children who are victims of family abduction are uprooted from their homes and deprived of their other parent. Often they are told the other parent no longer loves them or is dead. Too often abducted children live a life of deception, sometimes under a false name, moving frequently and lacking the stability needed for healthy, emotional development.”
-Quote from Family Abduction: Prevention and Response, 6th ed., The National Center for Missing & Exploited Children, 2009.

Under 18 USC 1204, a parent is prohibited from removing a child from the United States or retaining a child in another country with intent to obstruct another parent´s custodial rights.

India prefers to give child custody to mothers, the Abla Naris always win!
A third of all IPCA victims are mothers. Within months of arriving in India, most abandoning husbands successfully obtain ex-parte divorces and are awarded sole child custody. After years of running around the courts (High Courts and Supreme Court of India), mothers are given a few hours of court ordered supervised visitation a year, with no overnight stays. The court ordered Skype calls on weekends are invariably sabotaged by the father. What people need to be made aware of is that these hard earned court orders are not enforceable by the local police as they are considered “civil” orders. Unlike the US, custodial interference is not a crime in India. Mothers of girls as young as 2 years old have lost custody and are still fighting in the courts several years later for a few hours unhindered access.

Foreign courts will never entertain the custody case of an American child – and the child never even lived outside the US!
Once a child has been abducted/illegally retained outside US borders, parents are invariably forced to fight separate custody  battles in 2 countries simultaneously. This is simply because law enforcement in the foreign country will not enforce a US court order, and because judges of foreign courts invariably choose to ignore pre-existing US custody orders, thus forcing the parents to re-litigate the entire case in their court. This is in contradiction to India’s Guardians and Wards Act of 1890 which clearly states:

“9. Court having jurisdiction to entertain application –(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.”

India is not a signatory of The Hague Convention on the Civil Aspects of International Child Abduction (1980) and that is why there is no protocol to return abducted/illegally kids to the US.
The Hague has been ratified by 98 countries but not India. However, there is another treaty that India has indeed ratified, the United Nations Convention on the Rights of the Child, which has been ratified by 195 other countries. Articles 10, 11 and 35 all pertain to establishing protocols to prevent and resolve cases of international parental child abduction :

Article 9:  States Parties shall ensure that a child shall not be separated from his or her parents, against their will.

Article 10 (Family reunification): Families whose members live in different countries should be allowed to move between those countries so that parents and children can stay in contact, or get back together as a family.

Article 11 (Kidnapping): Governments should take steps to stop children being taken out of their own country illegally. This article is particularly concerned with parental abductions.

Article 35 (Abduction, sale and trafficking): The government should take all measures possible to make sure that children are not abducted, sold or trafficked.

The US Department of State will bring abducted US citizen kids back to the US, right?
Wrong! The success rate of the Department of State in Hague ratifying countries is 40% and it is close to zero in countries like India where no bilateral treaty exists to address the issue.

The US Embassy in India will conduct a welfare check on my child every 6 months upon my request and that way I can know how my child is doing while the case is pending in the courts.
While the Department of State offers to process requests for a welfare check to be conducted on abducted children every 6 months by US embassy officials, but it can only conduct such visits if the abducting parent permits. If the abducting parent refuses, the Embassy will not conduct the welfare check. The embassy will also not attempt to visit your child at their school on your behalf. Moreover, some abducting parents have used the US Embassy’s welfare check report in the court to prove that the child is well taken care of.