International Child Abduction: Using the Criminal Justice System

There are many factors to consider in determining whether or not to file criminal charges against the abductor. The child’s safe return is the primary objective in any missing child case, and criminal charges may actually complicate child recovery efforts. While the threat of outstanding criminal charges may intimidate some abductors into returning the child, others may react by increasing their efforts to remain undetected.

The Pros of Using the Criminal Justice System

In the event that a left-behind parent is both unaware of the whereabouts of the child and does not have access to the child, using the criminal justice system may be helpful as a tracking tool. There are a multitude of federal and state agencies that work in conjunction with local law enforcement to help locate a missing child and abductor in foreign countries. The FBI is the primary source of law enforcement assistance and can provide investigative support and coordinate the issuance of federal warrants. The United States Customs Service and the Bureau of Citizenship and Immigration Services in the Department of Homeland Security utilize the Interagency Border Inspection System (IBIS) to simultaneously access and query several federal databases for warrants, and entry or exit restrictions. INTERPOL coordinates activities with foreign law enforcement to trace and locate fugitives and abductors.

What Are the Risks?

Formal resort to the criminal justice system (filing of charges, issuance of an arrest warrant, transmission of an extradition request to a foreign government under an applicable treaty, and criminal prosecution) should be considered carefully. This is especially true if the other country concerned is a party to the Hague Convention. You should be aware that, while you may have a degree of control over the ongoing civil procedures, you may not be able to affect the course of criminal actions once charges are filed. Check with the police and prosecutor to determine if your wishes would be considered in a criminal action. Furthermore, law enforcement authorities in the U.S. and some countries abroad may be valuable sources of information and assistance. However, they may be unfamiliar with international parental child abduction. If this is the case, please call the Office of Children''s Issues (CA/OCS/CI) as soon as possible.

Your decision on whether or not to try to utilize the criminal justice system depends upon the circumstances of your case. You should also realize that neither extradition nor prosecution of the abductor guarantees the return of your child and may in some cases complicate, delay, or ultimately jeopardize return of your child.

Presumably, your primary interest is to obtain the return of your child. That is not the primary responsibility of the prosecutors. When the criminal justice system becomes involved in a case, there are several interests at stake, some of which may be in conflict:

• The interests of the child;
• The interests of each parent/guardian and other immediate family members;
• The interests of the civil justice system in a stable and workable custody arrangement; and
• The interests of the criminal justice system in apprehending, prosecuting, and punishing those who have violated the criminal laws of their jurisdiction in connection with a parental child abduction.
  

Another factor to consider is the possible reaction of the abductor to the filing of criminal charges and the threat of prosecution and punishment. Although some individuals may be intimidated enough to return the child (with or without an agreement by a prosecutor to the condition that the charges be dropped), others might go deeper into hiding, particularly if they are in a country where they have family or community support. If an abductor is ultimately brought to trial, how far are you willing to go in pursuing criminal prosecution? Unless you are prepared to testify in court against the abductor, you should not pursue criminal prosecution. A final factor to consider is the effect on the child of seeing the abducting parent prosecuted and perhaps incarcerated, with you playing an active role in that process.

Steps to Take in Case You Decide to Use the Criminal Justice System

Once you have decided to pursue criminal remedies, you or your attorney may contact your local prosecutor or law enforcement authorities to request, if provided for by your state law, that the abducting parent be criminally prosecuted and an arrest warrant be issued. In some states, parental child abduction or custodial interference is a misdemeanor; however, under many state laws it may be a crime depending on the circumstances of the removal. If you are able to obtain a state warrant, the local prosecutor can contact the F.B.I. or the United States Attorney to request the issuance of a federal Unlawful Flight to Avoid Prosecution (UFAP) warrant for the arrest of the abductor. The federal Parental Kidnapping Prevention Act of 1980 provides for the issuance of this warrant.

Furthermore, the International Parental Kidnapping Crime Act (IPKCA) of 1993 (H.R. 3378) makes it a federal offense to remove a child from the United States or retain a child (who has been in the United States) outside the United States with intent to obstruct the exercise of parental rights (custody or visitation). An unlawful retention begun after 1993 could violate the statute, even though the actual removal of the child may have occurred before the date of enactment. The F.B.I. is responsible for investigating the abduction.Prosecution of Agents or Accomplices of the Abductor

Find out if your state, through consultation with a lawyer, has laws that allow legal action to be taken against agents or accomplices to an abduction. Consider whether such actions would be useful in learning your child’s whereabouts or compelling the return of your child.

Implications of an Arrest Warrant for a United States Citizen

If the abducting parent is a United States citizen and the subject of a federal arrest warrant, the F.B.I. or United States Attorney’s office can ask the Department of State’s Passport Office to revoke the person’s United States passport. This may or may not be a burden to an abducting parent who is entitled to hold a foreign passport as well as a United States passport. However, an abducting parent who is only a United States citizen becomes an undocumented alien in a foreign country if his or her United States passport is revoked. Some countries may deport undocumented aliens or at least make it difficult for them to remain in the country.

For a United States passport to be revoked, the F.B.I. or United States Attorney must send a request for such action and a copy of the federal warrant to the Department of State’s Office of Passport Policy and Advisory Services (telephone 202-663-2662). The regulatory basis for revocation of passports is found in the Code of Federal Regulations (22 C.F.R. 51.70, et seq.)
In certain circumstances, you may decide that revoking the abducting parent’s passport will not achieve the desired result. For example, if you know the location of the other parent, there may be a possibility of negotiation and a settlement or, at least, the possibility of communication with your child. If the abducting parent is threatened with passport revocation, he or she might choose to flee with your child again.

Implications of a Warrant for a Non-United States Citizen

Even if the abductor is not a United States citizen, the existence of a federal warrant is important. Such a warrant may encourage the abducting parent to return the child voluntarily, especially if he or she has business or other reasons to travel to the United States. The warrant also serves to inform the foreign government that the abduction of the child is a violation of United States law and that the abductor is a federal fugitive. An arrest warrant is also necessary if you wish to have authorities seek extradition of the abductor. Note that the United States does not have an extradition treaty with every country, and even if a treaty exists extradition may not always be possible.

The Possibility of Extradition

The United States Department of Justice, not the United States Department of State, is responsible for pursuing extradition of wanted persons. Through INTERPOL and other international links, national law enforcement authorities in many countries regularly cooperate in the location and apprehension of international fugitives. Extradition, the surrender of a fugitive or prisoner by one jurisdiction for criminal prosecution or service of a sentence in another jurisdiction, is rarely a viable approach in international child abduction cases.

Extradition is utilized only for criminal justice purposes in cases that prosecutors believe can be successfully prosecuted due to the sufficiency of the evidence. Prosecutors may decide not to proceed with a request for extradition for a number of different reasons. Moreover, it must be remembered that extradition does not apply to the abducted or wrongfully retained child, but only to the abductor. There is no guarantee that the child will be returned by foreign authorities in connection with extradition of the alleged wrongdoer. Threatened with impending extradition, abducting parents may hide the child or children with a friend or relative in the foreign country.
Another reason that extradition may not be useful in a given case is that the offenses of parental child abduction or custodial interference are sometimes not included in the U.S. Government’s extradition relationships with some foreign countries. The United States now has extradition treaties now in force at this point with over 120more than 100 foreign countries. Some of these are” dual criminality" treaties while others are” list" treaties. In each case, in order for conduct to be an extraditable offense under a particular treaty, the conduct in question must be (1) be extraditable under a given treaty, the conduct in question must be considered a crime in both countries, and (2) and also included as an extraditable offense under the treaty. In this respect, the United States Government has two kinds of extradition treaties,” dual criminality" and” list" treatiesDual Criminality Treaties: U.S. Government’s Most modern extradition treaties (i.e., generally those concluded after 1980) usually include a” dual criminality" provision. This means that a persons generally may be extradited under the treaty if their conduct is a crime punishable by more than one year imprisonment in both countries. Accordingly as a result, if the illegal conduct involved in a particular parental child abduction or custodial interference case is a crime punishable by more than one year imprisonment in both the United States and the foreign jurisdiction country concerned, then that conduct would be considered an extraditable offense under most extradition treaties that are based on “dual criminality" extradition treaties. (A small number of the U.S. Government’s dual criminality treaties use periods other than one year as the measure for extraditable offenses.) If the conduct is not criminalized a crime in either the United States or the foreign country, then it will not be an extraditable offense, even if our treaty with that country is a modern “dual criminality" treaty.

List Treaties: The U.S. Government’s older extradition treaties (generally those concluded before 1980) typically contain a list of covered offenses that are extraditable under the treaty. In this respect, nearly all of these older treaties include the word “kidnapping" in their list of covered extraditable offenses. The Extradition Treaties Interpretation Act of 1998 (Pub. L. 105-323) makes clear that the word “kidnapping" as used in these older treaties can encompass parental kidnapping. If, however, the conduct is not a crime criminalized in the United States or the foreign country, then it will not be an extraditable offense even if the word “kidnapping" is included in the relevant list treaty.

Despite the fact that parental child abduction may be covered by certain extradition treaties, you should be aware of potential difficulties in utilizing them. Apart from the possible counterproductive effects already discussed, specifically, most all civil law countries (in contrast with common law countries like the United States, United Kingdom, Canada, and Australia) refuse to extradite their own nationals. Nearly all the nations of Latin America and Europe are civil law countries. Whatever the terms of any applicable extradition treaty, experience has also shown that foreign governments are generally reluctant (and often simply unwilling) to extradite anyone (their own citizens, United States citizens, or third country nationals) for parental child abduction. For extradition to be possible, therefore:·

• The local and/or federal prosecutor must decide to file charges and pursue the case, and you should be prepared to testify in any criminal trial;
• There must be an extradition treaty in force between the United States and the country in question;
• The treaty must cover parental child abduction or custodial interference;· If the person sought is a national of the country in question, that country must be willing to extradite its own nationals; and,
• The country in question must be willing to extradite persons for parental child abduction/custodial interference (i.e., not refuse to do so for "humanitarian" or other policy reasons).

The Possibility of Prosecution of an Abductor in a Foreign Country

A final possibility in the area of criminal justice is prosecution of the abductor by the authorities of the foreign country where he or she is found. In many countries (but not the United States), nationals of the country can be prosecuted for acts committed abroad if the same conduct would constitute a criminal offense under local law. United States law enforcement authorities can request such prosecution by forwarding to the foreign country the evidence that would have been used in a United States prosecution. United States witnesses may, of course, have to appear and testify in the foreign proceeding. Like the courses of action discussed above, this approach also risks being counterproductive and will not necessarily result in the return of the child.

Reference
US Department of State