International Divorce: Child Custody and Abduction
With the increasing number of marriages between people from different countries, there are often cultural and social differences that make it hard for one spouse to live in a foreign country. In addition, with the increasing globalized world economy, people are more mobile than ever, often moving to a country far away from home.
What happens when one parent wants to move to a different country? A parent may want to go back home, to their country of origin. Maybe in these circumstances they have been given permission by the other parent to do so, and take the children with them. Is this a “child abduction?" The “left-behind” parent can bring legal action, and the “taking” parent will have to prove that permission was given.
International child abduction, parental kidnapping, missing children… No parent ever wants to believe that these words will be part of their life. Thousands of children are taken every year from their home, their friends, their school, and away from one of their parents.
Why would a father or mother abduct their child across international borders? What goes on in the mind and heart of these “taking parents?" What should the “left behind parent” do? What can they do?
Let us go inside the mind of a taking parent. Is there ever a valid legal reason to “abduct” a child in the context of an international divorce?
Domestic violence is often part of the reason one spouse leaves with the children and flees to another country. Is this international child abduction or is it seeking safety for a child? When is a “parental kidnapping” justified? There are legal defenses under the Hague Convention on the Civil Aspects of International Child Abduction.
In other types of cases, the marriage is breaking down and a parent abducts a child as retaliation, or punishment toward the other parent. Perhaps the taking parent is concerned about litigation in a particular country, and the custody laws that would apply. In circumstances where the abduction is part of a strategy to control the outcome of custody determination in an international divorce, the defenses are more limited.
Are there ways to prevent an international child abduction? If a parent fears that their child will be kidnapped, passport controls can be put in place, although the rules vary by country, and sometimes would be futile. In a recent case from the Third Circuit Court of Appeals in Pennsylvania, Karpenko v. Leendertz, a Father snatched his daughter from the street in the Netherlands, drove to Germany, flew to Dubai, and then abducted the child to the United States. Some taking parents are very clever.
Regardless of what prompts an international abduction, the left behind parent will come home to an empty house. Often it takes some days for the realization that the child is gone, especially if the parents are living apart. At that moment panic will set in, and anger, and sadness. What to do?
Often the left behind parent will have an idea of where the child has been abducted to - back to the home country of the taking parent or perhaps at a grandparent’s home. Sometimes the child is nowhere to be found. Searching credit card transactions, bank withdrawals, airplane ticket purchases, cell phone use, and the like can unravel the taking parent’s efforts to hide. Perhaps criminal charges should be filed and a police investigation begun. There can be long term repercussions for this though. Family Law International has had cases where because of criminal charges a parent can never return to a particular country which makes future visits between that taking parent and the child impossible after the child was returned. You might ask why this matters, a taking parent is a criminal and should not be allowed to see the child again.
What would a child think?
From the child’s perspective an international abduction or parental kidnapping might not feel like abduction or it can be traumatizing. If the child is young, a toddler for instance, and the taking parent is the mother who has had primary care of the child, that toddler may not feel that a disruption has occurred. If the toddler is returned to the country of a left-behind parent, and a divorce and custody proceeding ensue, but that Mother cannot be in the Country because of criminal charges, that toddler is now scarred for life.
The parents can battle each other to such an extent that the damage to a child is compounded beyond any emotional turmoil from the abduction. Retaliation and anger between parents is sometimes far worse than a change of country. The attorneys at a Family Law International deeply care about finding legal resolutions for our clients that begin the process of repairing a broken family, for the sake of the children. If there are issues of domestic violence or substance abuse that led to an abduction or kidnapping, those must be addressed honesty for the safety and well being of all members of the family. If the parents are divorcing and the residential country does not have modern custody laws, that must be addressed. If one parent travels globally for work, that must be considered in an effort to find stability for children. If the children have special educational or medical needs that is critical to a final agreeable resolution. The attorneys at Family Law International are mindful of the myriad personal matters that must be addressed to help a family in crisis.