How International Parental Abduction Impacts Divorce Cases
What Is International Parental Abduction?
Most people understand that kidnapping is generally wrong. However, when most people think of the crime of kidnapping, they think of strangers taking someone against their will. This begs the question: When parents take their children away, and the child is either unaware or indifferent about it, does this act qualify as a wrong?
It does in cases where the parent is taking away the child from the rightful custody of another parent or guardian. It is considered wrong because—although the child may be okay with going along with the abducting parent—the other parent’s rights regarding the care and custody of their child have been injured.
This situation is better known as “parental kidnapping” and is often the result of personal and legal conflicts between separated or divorcing parents.
The Hague Convention on the Civil Aspects of International Child Abduction
In many parental abduction cases, the parents are going through a divorce, or have completed divorce proceedings and are subject to a custody order rendered by the state court who handled the overall divorce.
Historically, parental kidnapping presented significant procedural issues because the abducting parent would flee to another jurisdiction. Because the authority of the court who rendered a custody order was restricted to the territorial limits of their state, parental kidnapping was a challenging issue to deal within the United States.
In response, states have adopted the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Generally, the UCCJEA gave interstate enforceability to all child custody orders. This means that if a parent abducted a child in California and fled to Nevada, the other parent can get Nevada courts to enforce the California order in a simple, straightforward process.
In cases of international parental kidnapping, several countries implemented a solution similar to how the UCCJEA helped resolve interstate abduction cases in the U.S. in the form of an international treaty. The Hague Convention on the Civil Aspects of International Child Abduction—also known as the Hague Abduction Convention—also provides a simpler process of location and enforcement of custody orders rendered by the court of a foreign state.
Under the Hague Abduction Convention, member states would:
- Designate a Central Authority that would be responsible for fielding applications under the Hague Abduction Convention
- Recognize the validity of custody orders from sister countries
- Provide a simplified way of resolving jurisdictional conflicts between countries based on an analysis of the child’s habitual residence and the child’s best interests
International Parental Abduction and Divorce
As mentioned, parental abduction cases typically involve parents who are either going through a divorce, or have already gone through a divorce. Many Hague Convention countries similarly determine issues of child custody based on the child’s best interests.
However, a desperate parent who is not satisfied with the court’s determinations may want to take matters into their own hands and retain custody of their child in violation of an existing custody order. This implies that parental abduction cases are always contrary to the child’s best interests.
However, even in cases where a court has yet to render a final custody order, parental abduction has a significant potential of confusing and even harming a child’s healthy course of development. The child will potentially learn the wrong way to approach adversity as a result. It can also cause significant harm to the child’s relationship with either parent. As a result, a court can use the fact that a party committed parental abduction in fashioning a custody order that is adverse to the abducting parent’s wishes.
Call the Law & Mediation Firm of Klueck & Hoppes
Divorce cases can be as emotionally challenging as they are legally complicated. As a result, you should seek the legal advice of a professional attorney from the Law & Mediation Firm of Klueck & Hoppes for help. We can take care of the technical legal issues while you focus on dealing with the emotional hardships of your case.
To schedule an appointment regarding the available legal options in your case, call us at (619) 577-4900 or contact our office online.