What Qualifies as Parental Kidnapping / Abduction ?

Source: Houston Divorce Blog

While parental kidnapping laws vary from state to state, two main factors determine whether a parent’s act qualifies as parental kidnapping:

1. The status of child custody
2. A parent’s motives in taking a child away from the other parent

Child custody status

Texas law criminalizes anyone (including a parent) who takes a child knowing that he or she is violating a child custody order. If you are the parent with custody over your child, the child’s other parent cannot do anything that violates the terms of your custody order. Also a parent may not move a child out of the judicial district area if he or she knows that a custody case is currently pending without seeking the permission of the court. Finally, Texas law makes it illegal for non-custodial parents to entice or persuade their children to leave the custodial parent or anyone else acting in that capacity.

For parents who would legitimately like to move, they have to petition the court with jurisdiction over the child custody case. This petition gives the non-custodial parent a chance to oppose the move. While the petition is pending, an act of the non-custodial parent to take the child away to avoid the move would be parental kidnapping.

The motives of a parent taking a child

If no child custody order is in place, the law generally assumes that both parents have equal rights to care for and spend time with their children. Brief trips and vacations with the child – even out of state – can be lawful assuming that the parent taking the child did so in good faith. Parents may not, however, take a child to hide him or her from the other parent or to terrorize the other parent. Many states, including Texas, criminalize this type of intent where one parent maliciously uses the child against the other parent.

Have you been involved in a parental kidnapping case? How were the courts able to help secure the return of your child?

John K. Grubb & Associates, P.C. – Houston divorce lawyers

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A Father’s Day story

By David Story, Special to The Villager
Alabama June 17, 2011 

Contributed Auburn Villager Luis Gallardo-Rivera and his daughter, Amaia

Last Father’s Day, Opelika city employee Luis Gallardo-Rivera didn’t know if he’d ever see his daughter Amaia again as he embarked on a desperate odyssey. His search ended up spanning two states, crossing the Atlantic Ocean, and including a trek across Bulgaria from Sofia to Burgas on the Black Sea.

A single man with visitation rights to see his 6-year-old daughter Amaia, Gallardo-Rivera says the disappearance of his daughter was unexpected. In the prior year, his relationship with her mother Beatriz had “settled down.”

“Things were rocky with Beatriz after Amaia’s birth, with visitation disagreements,” admits Gallardo-Rivera, a Columbus native. “I’d travel to Florida from Puerto Rico, where I was living and I’d first met Beatriz, and later to Florida from Columbus.”

Then Beatriz announced she had a real-estate job offer in Spain.

“Beatriz said she’d take Amaia for nine months,” says Gallardo-Rivera, who had joint custody. “It was temporary, and though I wouldn’t see Amaia for nine months, I could have her every summer per our new visitation arrangement.”

Bulgarian connection

The only hitch, adds Gallardo-Rivera, was that Amaia’s mother was engaged to a Bulgarian national.

“The day before they left for Spain, Beatriz called and said they were making a pit stop in Bulgaria to meet the fiancé’s family and get married,” he says.

Gallardo-Rivera admits resenting the fact that Beatriz’s fiancé was a father figure to Amaia. But he appreciated that Amaia got along with the man who might become her stepfather. He says he was glad his daughter had a chance to travel, and he understood the fiancé’s wanting to see his home and family.

But weeks passed and then a couple of months went by with only email and webcam communications between Gallardo-Rivera and his daughter. Beatriz explained that there were visa problems delaying their departure for Spain. Because he has a friend who’s an immigration lawyer, Gallardo-Rivera says this didn’t sound improbable.

The first warning bell rang when Beatriz said Amaia couldn’t come back to visit her father, adding that it wasn’t feasible for the child to leave Bulgaria and try to get back in. She said Gallardo-Rivera could come and visit, however.

“I was frustrated, but not entirely suspicious,” he says. “Now, I look back and think, how could I have been so stupid!”

By February, Gallardo-Rivera was planning a visit. Shortly afterwards, his story took an alarming turn.

Arrest warrant

“On March 16 of last year, I found an arrest warrant online for Beatriz on federal charges of mortgage fraud,” he says. “A 50-plus-page document from the federal Department of Justice initiated by the FBI, which had first interviewed Beatriz the day before she called me with the Spain story.”

Gallardo-Rivera says he didn’t care so much about the bank’s allegations of mortgage fraud as he did about what Beatriz had done to him and his daughter.

“Everything fell into place, so, I called the FBI,” he says. “They had no news of her whereabouts—she and Amaia had boarded a flight from Atlanta to Amsterdam—so I gave the Bureau an address.”

Gallardo-Rivera immediately tried to obtain emergency full custody, filing in Florida.

“It was denied for lack of jurisdiction, and their court ruling said I could file in Alabama or Puerto Rico,” he says. “My lawyer said not to file in Alabama, so I filed in Puerto Rico, and the request was denied.”

Months pass

Months passed and Gallardo-Rivera still communicated with Amaia via webcam, watching what he said to avoid giving away anything. Then, things began to turn in his favor.

“The FBI had to go through the State Department to work with the Bulgarian embassy in Sofia” he says. “I had called the embassy repeatedly, having written to the U.S. ambassador to Bulgaria, Nancy McEldowney.”

Gallardo-Rivera finally got in touch with a female official, Kimberly Atkinson of the embassy’s American Citizens Services, who became his contact. The search for Amaia evolved from a federal case to an Interpol case.

“Atkinson was very proactive,” says Gallardo-Rivera, who had been assured that once Beatriz was apprehended the American embassy would hold his daughter.

“I was sitting tight, and in mid-October I received a call from Atkinson,” he says. “The embassy had just finished a legal consultation and said they couldn’t hold Amaia overnight if they found her. ‘Are you going to get her soon?’ I asked, and Atkinson said she couldn’t answer that.”

Atkinson said she could pass Amaia on to an American missionary couple, the Ridgways, pending Gallardo-Rivera’s arrival.

“‘Should I come?’ I asked,” recalls Gallardo-Rivera, “and Atkinson couldn’t give me a definitive answer. So I slept on it, decided to go, and bought a ticket for Bulgaria.”

Gallardo-Rivera flew into Letishte Sofia-Vrazhdebna airport in Sofia, arriving on a Friday. He checked into the Kempinski Hotel Zografski in the Lozenets neighborhood near downtown Sofia. As Gallardo-Rivera strolled past the hotel’s lake, he contemplated his situation.

“The Kempinski Hotel was next to the embassy,” he explains, “and by Monday I was frustrated when Atkinson informed me Beatriz still wasn’t in custody. I didn’t know what to do, so I went back to the hotel and tried to contact the Bulgarian police. Then my sister told me about a private investigation agency she’d found online,”

A private detective

Korona AIK Detective Agency at 14 Budapeshta St. is known for tracking hiding or missing persons, and the agency had a 10-year for reputation working with foreign clients.

“I gave Korona’s Alexandra Karmanska my daughter’s last address in Bulgaria, plus the name of the Drita School,” says Gallardo-Rivera, “She arranged surveillance of the school and learned Amaia was abruptly checked out by her mother’s fiancé on the same day I’d gotten the call from the U.S. Embassy about the American couple, the Ridgways.”

Gallardo-Rivera moved to a less expensive hotel, the Hotel Maxim, close to downtown Sofia and the Vitosha Street commercial district. He stayed till the end of the second week but was on leave without pay.

“I was trying to email Beatriz because the webcam communication had suddenly stopped,” he explains, “but there were no email responses.”

Gallardo-Rivera decided to return home. Once he was back in Alabama, the emails started again and were forwarded by him to the FBI, which forwarded them to Bulgaria. There, authorities traced the IP address to the seaside town of Burgas.

Gallardo-Rivera was still trying to arrange a trip without letting Beatriz know he knew where she was. He said he was going to visit his brother in Ibiza, Spain, and wanted to make side trip to Bulgaria.

“No, don’t come,” Beatriz said. “Amaia is going to winter camp with her school.”

The Hague Treaty

The emails slacked off, and when they came again, Beatriz was elusive about her address. Gallardo-Rivera tried to get Amaia on the Missing Children’s List, a process that only local authorities can initiate. The Florida police wouldn’t follow through, however, so Gallardo-Rivera turned to the International Missing Children’s List and made a petition through the Hague Treaty.

The Hague’s Office of Children’s Issues provides direction to foreign service posts on international parental child abduction and fulfills U.S. treaty obligations relating to the abduction of children.

The Hague Treaty, a multilateral treaty protecting children from abduction and retention across international boundaries, provides guidelines for an application process to have a child returned under the treaty.

“In the week or two leading up to finally getting Amaia back in November, I made calls and wrote letters to my congressmen, the State Department, Bulgarian Minister of Interior Tsvetan Tsvetanov, the International Missing Children’s List and Interpol’s Bulgarian office,” says Gallardo-Rivera. “I got flooded with calls in response.”

Then Atkinson called from Sofia, saying the embassy had Amaia. She and Beatriz had been in the home of a friend of the fiancé’s in Burgas. Gallardo-Rivera drove straight to the Atlanta airport, thinking his daughter was en route to the Ridgways. There were complications, however.

“It was alleged that Beatriz said I’d given up custody rights or they’d been revoked,” according to Gallardo-Rivera. “But I had my documents when an embassy car with a translator picked me up at the airport.”

Gallardo-Rivera’s documents showed he had never relinquished joint custody, and he immediately became custodial parent as soon as Beatriz was incarcerated.

The embassy got Gallardo-Rivera to the Social Assistance Office, but Amaia wasn’t with the Ridgways; she was at the Dragalevtsi Shelter for Children because Beatriz claimed Gallardo-Rivera had relinquished custody.

When Gallardo-Rivera saw Amaia there she hugged him. The embassy staff drove them to the airport, and they were out of the country three hours after his arrival.

Home at last

Amaia’s aunt and paternal grandfather were waiting when they landed in Atlanta.

“I am grateful I’d always tried to communicate with Amaia, because she was comfortable with me,” says here dad. “Amaia took it all like a champ.”

Amaia started school at Jeter Primary in Opelika the following Wednesday.

“Amaia was smiling and acting like a little girl,” recalls Sandra Gallardo, Amaia’s aunt, of their airport reunion. “She’d say little things in reference to her time in Bulgaria, and it caught us off guard and was hard to respond to. Amaia has a strong sense of leadership and a deep need to understand things but is as silly as any young girl.”

Her aunt adds that Amaia has always been extremely social, makes friends quickly and never forgets names.

“Folks stop me and tell me they can’t believe Amaia’s only been with me for a few months,” says Gallardo-Rivera. “She’s resilient and integrated into school. She’s gotten used to new rules; it’s like we’ve always lived together.”

Be careful with whom you have children, sums up Gallardo-Rivera.

“It’s a challenge—going from bachelor to full-time single Dad with the ‘technical’ aspects of health plans,” he says. “Nothing can prepare you for day-to-day parenthood. It’s not like when you could eat a bowl of cereal for dinner or skip a meal; you have another mouth to feed.”

The ‘big picture’

His sleep was the first thing affected. He wakes up an hour early and stays up at night to make dinner and help with homework.

“All of these things are peanuts compared to the big picture, so it’s worth it,” he muses.

Amaia and her dad even make it down to Florida so she can see her maternal grandparents, who knew nothing about Beatriz’a legal troubles.

“I’ve learned so many things about Amaia,” says her dad. “She is into art. Her drawings are very detailed. I signed her up with 4-H club at school, and we visit different parks and go to Opelika’s Sportsplex to swim.”

The one thing he hasn’t figured out yet is how to fix a little girl’s hair, confesses Gallardo-Rivera.

“I try to convince her to go with a short haircut, but with the movie Tangled, that hasn’t been successful,” he says. “You can tell when my sister or a female co-worker has helped with my Amaia’s hair and when ‘Daddy’ did it.”

This is the first Father’s Day Amaia will spend with Gallardo-Rivera, his father and all his siblings.

“My family has showered her with so much love,” he says. “She adores them, and they love her. They’ve grown so close so fast; she calls my dad ‘abuelo.’”

Gallardo-Rivera’s father Orlando—Amaia’s grandfather, says she is totally different from when she first arrived.

“When we are together, she is very affectionate and talks of things she does with her Dad; she loves being with him,” he says. “My son has a unique way with her. He’s always there for Amaia.”

Note: Gallardo-Rivera said Amaia’s mom Beatriz was extradited and is awaiting trial in Florida. Gallardo-Rivera now has full legal and physical custody, and Beatriz will have to request visitation in court. So far, she has not. The facility she is in does not allow visitors, so Amaia has only seen her mom via webcam since leaving Bulgaria. Beatriz’s fiancé is still in Bulgaria, and since he didn’t formally sign anything or directly commit any mortgage fraud, he is not facing charges.

Published by: ABP World Group International Child Recovery Services

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Three out of every four children who are internationally abducted are never returned to the parent left behind.

Three out of every four children who are internationally abducted by one of their parents are never returned to the parent left behind.

Despite violating US custody laws, parents who manage to run away with their children across national borders often find it relatively easy to hide behind complicated international conventions and bureaucracy. The Japanese abduction cases highlighted in one of our previous blog posts provides an excellent example of just how difficult it can be to resolve international abduction cases. These discouraging facts emphasize how fortunate one father is after being recently reunited with his 5-year-old daughter who was taken to Europe by her mother 10 months ago.

The young girl and her mother were found by authorities in Germany, after the child’s father was alerted as to their whereabouts by an informant. The father had published information about his missing daughter on the Internet, which promoted a German citizen to recognize the child’s face and contact her father.

The 5-year-old’s mother violated the couple’s custody agreement last June, when she reportedly told the girl’s father that they were taking a vacation to Arizona. The father first became concerned when he found himself unable to contact his ex-spouse and the police started investigating the case after the mother sent an email confessing that she had taken their daughter “somewhere else.”

Fortunately, thanks to the informant’s tip, authorities were able to track down the mother-daughter pair and placed the child with a temporary German foster family while she waits to be extradited back to the US. The girl’s father described their reunion as an emotional, joyous event for both himself and his daughter.

The girl’s mother will face felony charges for breaking the family’s legal custody arrangement.

Source: KWGN, “Abducted Littleton girl, 5, found in Europe, mother faces charges.” Tammy Vigil, 12 April 2011

Published by: ABP World Group International Child Recovery Services

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International child abduction to Mexico

Mexico is amongst the world’s most popular sources and destinations for international child abduction while also being widely regarded as having one of the least effective systems of protecting and returning internationally abducted children within its borders.

To help protect abducted children Mexico signed on to the United Nations Convention on the Rights of the Child in 1990, the Hague Convention on the Civil Aspects of International Child Abduction in 1991,^[1] and the Inter-American Convention on the International Return of Children

Since adhering to the Hague Abduction Convention, the world’s most recognized and utilized instrument for addressing international child abduction, Mexico has been repeatedly criticized for enjoying the benefit of having its treaty partners protect Mexico’s own internationally abducted children, while being consistently non-compliant in fulfilling its reciprocal obligations to protect and return children abducted to Mexico. To date its procedures for enforcing its treaty obligations are unpredictable and entirely ineffective. The Centre for International Family Law Studies in Cardiff, Wales compared seven jurisdictions, including Mexico. The conclusion was that Mexico was by far the worst offender in its failure to return abducted children.

Merely because a country is a party to the Hague Convention does not mean that it will effectively enforce its treaty obligations. For example, the U.S. State Department has asserted that Mexico is “non-compliant” with the terms of the Convention. U.S State Department Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, 2004. Mexico’s noncompliance results from the following problems:

• Mexico has not enacted any legislation to implement the Hague Convention, which has not been integrated into the Mexican legal system.
• The Mexican Central Authority has no law enforcement powers and Mexican law enforcement agencies make no serious efforts to locate parentally abducted children.
• The burden of finding an abducted child in Mexico is left entirely to the left-behind parent. Mexican authorities provide no effective help and if the child cannot be located, nothing happens.
• There is an apparent lack of understanding of the Convention among the judiciary in Mexico.
• The Mexican Central Authority does not have adequate resources to perform its functions under the Convention.
• The “amparo” (a special appeal in Mexico claiming a violation of constitutional rights) is used by taking parents to block Hague proceedings indefinitely.
• Mexican courts are able to reconsider the facts of a Hague at any stage of the proceeding, which allows proceedings to be prolonged substantially.

Accordingly, custody orders concerning parents with strong ties to Mexico must be drafted so as to minimize the risk that the child will be taken to that country. It would be reckless to permit a Mexican parent who has expressed a desire to move to Mexico, and who has strong family or business ties to Mexico, to take a child into that country for a visit, regardless of the conditions that may be imposed to encourage the parent to bring the child back to this country.

The State Department’s 2004 report establishes that similar concerns exist with respect to Austria, Colombia, Ecuador, Honduras, Mauritius, Turkey and Romania and, to a somewhat lesser extent, several other countries.

Published by: ABP World Group International Child Recovery Services

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Parental Abduction – When Parents Kidnap Their Own

By: Carma Haley 

An estimated 355,000 children are abducted from their homes each year, according to the National Center for Missing and Exploited Children (NCMEC). These children can go days, weeks, months or even years with no contact from anyone except their abductor. And many of these children are not taken by strangers: They are abducted by their own parents.

There are some who claim kidnapping their own children is the only option they have, but what about the other parent — and what about the child?

Mark Samrodan, spokesman for NCMEC, says parental kidnapping is the practice of a noncustodial parent taking a child from the custodial parent from one state to another without court permission or in violation of court orders obtained through a divorce or custody hearing. The practice of parental kidnapping is forbidden by both federal and state laws in the absence of a provable emergency situation and can result in the noncustodial parent being charged with felony kidnapping. But often this threat does not stop parental kidnapping from occurring.

Who Kidnaps?

Research completed by the National Incidence Studies of Missing, Abducted, Runaway and Thrown-away Children (NISMART), which was founded by the United States Department of Justice’s Office of Juvenile Justice and Delinquency Prevention, states there are many reasons parents may resort to abducting their children. These reasons include using a child as a “pawn” in contentious divorce proceedings, as an extension of battering, to control their spouse or ex-spouse by depriving them of custody or visitation of the child, or to protect the child from abuse. 

“My husband and I obtained legal custody of our granddaughter when it was determined that her mom was unable to take care of her,” says Shirley Sunderland, from Altoona, Pa. “When the baby was 3 months old I was working at the local hospital and often had difficulty finding a sitter for the evening shift. [My daughter] offered to take care of her for that one night. When I got home, the baby was gone and so were some of her belongings. I got a cold feeling in the pit of my stomach and then realized that the baby had been kidnapped by her own mother.”

The Missing Children’s Registry of Ottawa, Ontario, Canada has developed an overall profile of parental abductions. The profile was constructed to assist those whose child has been abducted by a parent and includes facts such as:

• Either parent, mother or father, will abduct his or her own child.
• Mothers tend to abduct children after a court order is completed while fathers do so before the court order.
• Mothers who abduct their children will keep the children for a longer period of time then fathers who abduct.
• The “average” age range for parents who abduct their child is 28 to 40 years of age.
• The fathers who abduct their children are likely to have employment while the mothers who abduct are more likely to be unemployed.
• The majority of children who are abducted by their own parent but kept within the United States are between 3 and 7 years of age, but children who are taken out of the country tend to be 8 years of age or older.
• Both male and female children are abducted equally.
• The majority of children abducted by their own parent are done so from the home and not from areas such as a babysitters, daycare or schoolyard.
• The abductor, both mother and father, typically makes contact within 48 hours of abducting the child to inform the searcing parent of the child’s well being.

The Other Side of the Coin

The typical reasons are not the only reasons a parent may feel they have no alternative but to kidnap their own child. Many believe the justification of parental abduction go beyond any of the reasons listed above as well as beyond the courtroom.”Dispelling typical myths that parents who kidnap their own child are doing so to get even with society and/or hurt their ex-spouse has proven quite difficult,” says Bonnie Russell, advocate for parental abduction prevention and former victim of a parental kidnapping from Solana Beach, Calif. “While some cases of parental abduction are due to this, it is more the exception then the rule. Other reasons include abuse, neglect, endangerment, unjust hearings or simple injustices. Until the underlying reason parents resort to kidnapping is addressed, no one will understand the subject.”

Some parents feel they have been treated inappropriately before, during or after a custody battle and this treatment played a role in losing custody of their children. For some of these parents, taking their child was their only option.

“My husband physically abused me for years,” says Carolyn Hawkins, a mother of two originally from Medina, Ohio. “And even though I reported him to the police numerous times, had a medical record as thick as a dictionay and had left him twice before, he was awarded custody of my children because he had more money and could hire a lawyer where mine was court appointed. The abuse I suffered led me into a depression and that was used against me in court. What else could I do but get my kids away from him?”

Alternatives to Kidnapping

Many services are available to help in the event of a situation that may be dangerous or harmful to a child. Social service departments, health departments and area chapters of Child Abuse Prevention agencies or even a school counselor can all help a parent who fears for their child’s welfare and safety.

In the event of a disputed divorce or custody order, a parent can move up the chain of command to find assistance or to have additional evidence heard, Samrodan says. If a parent is not in a financial situation to afford an attorney, local chapters of Legal Aid or free legal assistance can be found through social service offices.

“There is always something else that should be tried or attempted before a parent resorts to kidnapping their child,” says Samrodan. “Whether a local, state or federal organization, if a parent truly feels they need assistance, then they can and will find it — all they need to do is ask.”

If a parent suspects the noncustodial parent may abduct their child, they should file an order with the court to investigate a possible parental kidnapping which can assist them in getting a visitation order held until the threat has passed. In the event of a continued threat or possible attempts to abduct the child, the custodial parent should file an order with the court to have the noncustodial parent’s visitation revised to prevent an abduction from taking place, Samrodan says.

“It only takes a few minutes and a little bit of effort to et help when a parent fears their child may or will be abducted by their noncustodial parent,” says Samrodan. “If they need assistance, anyone at the courthouse would be happy to help — again, all that needs to be done is to ask.”

The Effects on the Child

Recent research conducted by NISMART states children endure adverse consequences from being abducted. Besides emotional turmoil, children may suffer from inadequate schooling, poor nutrition, unstable lifestyles and neglect. Some are abandoned, only to be discovered living in foster homes. In the most egregious cases, children suffer long-term harm that may leave them scarred for life. The belief that a child is safe with a parent lessens the chance of aggressive investigation by law enforcement, NISMART states. Yet one study reported 49 percent of abductors have previously established criminal histories and 75 percent of abducting fathers have a history of violent behavior.

After the child is located, researchers suggest that the police encourage both the parent and the child to receive a psychological and physical evaluation.

While Samrodan says parents may feel there is no other alternative, parental kidnapping only adds to the problems. He says parents can often avoid the situation if they are willing to work together and through the courts to find what the best schedule or routine that offers the child time with both parents.

“The system is not perfect and may not always offer the perfect solution the first time around,” says Samrodan. “But taking a child away from what they know as home; what they know as friends; and what they know as stability can and will only add to the hurt and trauma of all those involved. There are other ways and there are people to help you find them. Think before you take your child.”

Published by: ABP World Group International Child Recovery Services

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Norwegian/Maltese Child Abduction -Maltese father wins child ‘abduction’ case

Friday, 4th February 2011

Toddler to stay with dad after mum claims abduction

The young son of a couple who met on the internet will remain in Malta with his Maltese father after a court dismissed his Norwegian mother’s claim he had been abducted.

Madam Justice Anna Felice ruled the island was the child’s habitual residence after the couple had travelled to Malta intending to establish their residence here.

The child’s parents met over the internet in 2008 and the mother travelled to Malta and remained here until January the following year. On her return to Norway she discovered she was pregnant and the father moved to Norway to be with her.

Following the birth of the child in September 2009, the father found out the mother had another child from a previous marriage. This child had been removed from her care and placed in a foster home, the court heard.

The second child was born suffering from withdrawals from the medication the mother used to take and the Norwegian Social Services intervened. This led to both parents fearing the child would be taken away from them and they decided to leave Norway and come to Malta when the child was only a few days old.

They immediately had the child registered as a Maltese national and established a home together. However, their relationship ended last year and the father was awarded care and custody of the child in January 2010. The mother returned to Norway.

Claiming the father had abducted the child, she submitted a request to the Department for Standards in Social Protection for the child to be returned to Norway.

The father argued that, as he and the mother had come to Malta when their son was only a few days old intending to establish their residence here, this was not a case of child abduction.

The Family Court heard that, in terms of the Hague Convention on child abduction, no court was obliged to order the return of a child if the contesting parent had consented to the child travelling. Nor was the court obliged to order the return if this could expose the child to physical or psychological danger.

Madam Justice Felice noted it resulted from the evidence the couple had intended to establish their residence here and that this country constituted the child’s habitual residence. It also resulted that the mother suffered from mental illness and that her state of health was poor.

The court, therefore, refused the mother’s request to order the return of the child to Norway.

Source: Times Of Malta

Published by: ABP World Group International Child Recovery Services

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What to do if a spouse make threats of international child abduction

You May Need to Be Prepared

When a divorce is messy and there is fear that one spouse may try to kidnap the child, it’s best to be prepared. In other words, never take lightly the threat of a spouse. If they say they’re going to take the child, contact the police. According to data from the United States Department of State, since the late 1970’s approximately 16,000 children have either been abducted from the United States and taken out of the country, or prevented by one of their parents from returning to the United States. Once a child is taken from the United States, it is a complicated procedure to regain possession of the child. Therefore, it’s always best to seek out the assistance of a divorce attorney who can help you with legal options. If you have suspicions that your child might be abducted, consider the following:

• Notify your child’s school if there is a threat of child abduction by the non-custodial parent.
• Make sure any teacher or babysitter is instructed that they are not to allow anyone to leave with your child unless that person has been authorized in accordance with a court order.
• Speak with a divorce lawyer before taking any measures to be sure you’re within your legal rights.
• Keep a record of any threats by writing them down.
• Keep an updated photo of your child each month as well as any identifying physical characteristics of your child.

If you think your child has been abducted to another country, call the police immediately to determine whether that particular country is a member of the Hague Convention and seek the guidance of an attorney who can submit an application for assistance under the Hague Convention.

Published by: ABP World Group International Child Recovery Services

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Non Custodial Parental Kidnapping

If I think that the other parent may abduct my child, is there anything I can do?

You may want to immediately contact a lawyer who can help you figure out what you can do to try to prevent abduction.

You can convince a judge that your concerns are “reasonable” based on the facts, a court may take steps to prevent the other parent from abducting your child. If you think that the other parent may flee the state with the purpose of kidnapping your child, then there are a couple of possible options that might work:

1. File a criminal complaint against the other parent (but this may only work if the other parent is in the process of fleeing the jurisdiction in violation of a court order or with the purpose of kidnapping your child)
2. Attempt to get an emergency temporary restraining order from family court.

If you think that the other parent may try to take your child out of the country, you could ask the court to seize your child’s passport so s/he cannot leave the country.  This is important due to the fact that there is no way to track the use of a passport once it has been issued, since there are no exit controls for people leaving the U.S.*

Also, if you are seeking custody of your children, you can ask the judge to include a provision that the non-custodial parent is not allowed to travel with your child out of the state or the country. If you already have a custody order, you can ask the judge to add this requirement to it.   However, even if the judge does not agree to order that the child cannot be removed from the county, there is still something you can do.  The State Department provides the following service:

“You can ask that your child’s name be entered into the State Department’s Children’s Passport Issuance Alert Program by contacting the Office of Children’s Issues’ Prevention Unit at 202-736-9156 or faxing a request to 202-736-9133. This will enable the Department to notify you or your attorney if an application for a U.S. passport for the child is received anywhere in the United States or at any U.S. embassy or consulate abroad.  If you have a court order that either grants you sole custody, joint legal custody, or prohibits your child from traveling without your permission or the permission of the court, the Department may refuse to issue a new or renewal U.S. passport for your child. The Department may not, however, revoke a passport that has already been issued to the child.”  http://travel.state.gov/family/abduction/prevention/prevention_560.html

For more information on keeping the other parent from taking your children out of the country, see our Custody Info & Kidnapping Info page.

For emergency assistance contact:

ABP World Group International Child Recovery Service

The goal of ABP World Group Ltd. is to locate, negotiate and recover your missing child.
We can dispatch personnel to most locations in the world; we specialize in locating missing children up to ages 18.

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Resolution Condemning Japan for International Child Abduction

111th CONGRESS, 2d Session, H. RES. 1326

Calling on the Government of Japan to immediately address the growing problem of abduction to and retention of United States citizen minor children in Japan, to work closely with the Government of the United States to return these children to their custodial parent or to the original jurisdiction for a custody determination in the United States, to provide left-behind parents immediate access to their children, and to adopt without delay the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

RESOLUTION

Calling on the Government of Japan to immediately address the growing problem of abduction to and retention of United States citizen minor children in Japan, to work closely with the Government of the United States to return these children to their custodial parent or to the original jurisdiction for a custody determination in the United States, to provide left-behind parents immediate access to their children, and to adopt without delay the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Whereas Japan is an important partner with the United States and shares interests in the areas of economy, defense, the promotion of global peace and prosperity, and the mutual protection of the human rights of the two nations’ respective citizens in the increasingly integrated global society;

Whereas the Government of Japan acceded to the Universal Declaration of Human Rights that states under Article 16 (1), `Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution’, and Article 16 (3), `The family is the natural and fundamental group unit of society and is entitled to protection by society and the State’;

Whereas the Government of Japan acceded in 1979 to the International Covenant on Civil and Political Rights that states `States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children [Article 23]‘;

Whereas according to Japan’s National Institute of Population and Social Security Research, 44,701 marriages between a Japanese national and a foreigner were registered in Japan in 2006, and 17,102 divorces were registered in Japan in 2006 between a Japanese national and foreigner;

Whereas since 1994 the Office of Children’s Issues (OCI) at the United States Department of State had opened 194 cases involving 269 United States citizen minor children abducted to or wrongfully retained in Japan, and as of March 25, 2010, OCI had 85 open cases involving 121 United States citizen minor children abducted to or wrongfully retained in Japan;

Whereas since the signing of the Treaty of Peace with Japan (San Francisco Treaty) between the Allied Powers and the Government of Japan in 1951, the Japanese Government has never issued and enforced a legal decision to return a single abducted child to the United States;

Whereas Japan has not acceded to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), resulting in the continued absence of an immediate civil remedy that as a matter of urgency would enable the expedited return of abducted children to their custodial parent in the United States where appropriate, or otherwise immediately allow access to their United States parent;

Whereas the Government of Japan is the only G-7 country that has not acceded to the Hague Convention;

Whereas the Hague Convention would not apply to abductions occurring before the accession of Japan to the Hague Convention, requiring, therefore, that Japan create a separate parallel process to resolve the abductions of all United States citizen minor children who currently remain wrongfully removed to or retained in Japan, including the 121 United States citizen minor children who have been reported to the United States Department of State and who are being held in Japan against the wishes of their parent in the United States and, in many cases, in direct violation of a valid United States court order;

Whereas the Hague Convention provides enumerated defenses designed to provide protection to children alleged to be subjected to physical or psychological abuse in the left-behind country;

Whereas United States laws against domestic violence extend protection and redress to Japanese spouses;

Whereas there are numerous acknowledged cases, such as the Jade and Michael Elias case, of Japanese consulates located within the United States issuing or reissuing travel documents of dual-national minor children in violation of United States court orders restricting travel and in violation of United States Federal criminal parental kidnapping statutes;

Whereas there are numerous cases in which the actions of the Government of Japan evidence a disregard of United States law and jurisdiction, other cases show indifference to the United States and customary international jurisprudence in the area of family law, which overwhelmingly reflects the worldwide preference for the resolution of parenting disputes by negotiated joint custody;

Whereas Japan’s existing family law system does not recognize joint custody nor actively enforce parental access agreements for either its own nationals or foreigners, there is little hope for minor children to have contact with the noncustodial parent in violation of internationally recognized and protected rights;

Whereas there exists no due process within the Japanese family court system for the redress of such disputes, and the existing system has no recognized process to enforce a custody or parental access order from outside of Japan or within it, without the voluntary cooperation of the abducting parent or guardian;

Whereas the Government of Japan has repeatedly claimed to foreign governments that parental child abduction is not considered a crime in Japan despite the fact that Article 3 of the Japanese Penal Code does indeed make it a crime for a Japanese citizen to abduct a child and move the child across national borders, even if the child is moved to Japan;

Whereas the Government of Japan has refused to prosecute an abducting parent or relative criminally when that parent or relative abducts the child into Japan;

Whereas according to the United States Department of State’s April 2008 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, abducted children are at risk of serious emotional and psychological problems and have been found to experience anxiety, eating problems, nightmares, mood swings, sleep disturbances, aggressive behavior, resentment, guilt, and fearfulness, and as adults may struggle with identity issues, their own personal relationships, and parenting;

Whereas left-behind parents may encounter substantial psychological, emotional, and financial problems, and many may not have the financial resources to pursue civil or criminal remedies for the return of their children in foreign courts or political systems;

Whereas Erika Toland was abducted in 2003 from Negishi United States Navy Family housing in Yokohama to Tokyo, Japan, by her now deceased mother and is being held by her Japanese maternal grandmother, while being denied access to her father since 2004;

Whereas Melissa Braden was covertly abducted from her home in 2006 by her mother to Japan in violation of previous Los Angeles Superior Court orders giving both parents access to the child and prohibiting international travel (travel to Japan) with the child by either parent and has since been denied any contact with her father;

Whereas Kai Hachiya was abducted in 2006 to Japan by his father, who had been found by a court of competent jurisdiction to have physically and mentally abused Kai’s mother who had been awarded sole custody in the State of Hawaii, and as a result, Kai has had limited contact with his mother;

Whereas Isaac and Rebecca Savoie were abducted in 2009 to Japan by their mother in violation of a Tennessee State court order of joint custody and Tennessee statutes, and have been denied any access or communication with their father, despite their father having been awarded sole custody of them by a United States court;

Whereas Karina Garcia was abducted to Japan in 2008 by her mother, who was ordered by the United States courts to return Karina to the care of her sole custodian father in the United States, but the order to return of the child has not been granted even though the sole custody order had been recognized by the Osaka High Court;

Whereas United States citizen minor children who have been abducted to Japan are being deprived of their United States heritage;

Whereas, on October 16, 2009, the Ambassadors to Japan of Australia, Canada, France, Italy, New Zealand, Spain, the United Kingdom, and the United States, all parties to the Hague Convention, called upon Japan to accede to the Hague Convention and meanwhile to identify and implement measures to enable parents who are separated from their children to establish contact with them and to visit them;

Whereas, on January 30, 2010, the Ambassadors to Japan of Australia, France, New Zealand, the United Kingdom and the United States, the Charges d’Affaires ad interim of Canada and Spain, and the Deputy Head of Mission of Italy, called on Japan’s Minister of Foreign Affairs, submitted their concerns over the increase in international parental abduction cases involving Japan and affecting their nationals, and again urged Japan to sign the Hague Convention;

Whereas the Governments of the United States and the French Republic have recently established bilateral commissions with Japan’s Ministry of Foreign Affairs to share information on and seek resolution of outstanding Japanese parental child abduction cases;

Whereas the bilateral commission is limited by the fact that it does not currently include Japan’s Ministry of Justice, which has jurisdiction over family law;

Whereas Japan’s Justice Minister Keiko Chiba said upon her appointment that she is determined to show that Japan `is very proactive’ in adopting international protocols and conventions that are the `international standard’; and

Whereas it is critical for the Governments of the United States and Japan to work together to prevent future incidents of international parental child abduction to Japan, which damages children, families, and Japan’s national image with the United States: Now, therefore, be it

Resolved, That–

(1) the House of Representatives–

(A) condemns the abduction and retention of all minor children being held in Japan away from their United States parents in violation of their human rights and United States and international law;

(B) calls on the Government of Japan to immediately facilitate the resolution of all abduction cases, to recognize United States court orders governing persons subject to jurisdiction in a United States court, and to make immediately possible access and communication for all children with their left-behind parents;

(C) calls on the Government of Japan to include Japan’s Ministry of Justice in work with the Government of the United States to facilitate the identification and location of all United States minor citizen children alleged to have been wrongfully removed to or retained in Japan and for the immediate establishment of a protocol for the resolution of existing cases of abduction, interference with parental access to children, and violations of United States court orders;

(D) calls on the Government of Japan to establish immediately a protocol and timetable to amend its Civil Code to allow for enforceable rights of parental access and communication between minor children and their divorced or separated parents including parents who are not Japanese citizens;

(E) calls on the Government of Japan to review and amend its consular procedures to ensure that travel documents for minor children are not issued in violation of United States court orders;

(F) calls on Japan to accede to the 1980 Hague Convention on the Civil Aspects of International Child Abduction without delay and to promptly establish judicial and enforcement procedures to facilitate credibly the immediate return of children to their habitual residence and to establish protocols for the organization of rights of international parental access; and

(G) calls on the President of the United States and the Secretary of State to seek immediately to identify credibly all United States citizen minor children who have been wrongfully removed to and who are retained currently in Japan and to raise the issue of abduction and wrongful retention of those United States citizen minor children in Japan with Japanese officials and domestic and international press; and

(2) it is the sense of the House of Representatives that the United States should–

(A) recognize the issue of child abduction to and retention of United States citizen minor children in Japan as a central foreign policy issue of paramount importance to the United States within the context of its bilateral relationship with Japan;

(B) work with the Government of Japan to enact consular procedures and legal agreements to prevent parental abduction to and retention of United States citizen minor children in Japan;

(C) encourage the Government of Japan to adopt the policy of not issuing duplicate passports when a United States judge has restricted a child’s travel or ordered the surrender of passports and to otherwise require notarized signatures from both parents before issuing a passport to a child;

(D) review its advisory services made available to United States citizens from the Department of State, the Department of Justice, and other government agencies to ensure that effective and timely assistance is given to United States citizens in preventing the incidence of wrongful retention or removal of minor children and acting to obtain the expeditious return of their children from Japan;

(E) review its advisory services made available to members of the United States Armed Forces, particularly those stationed in Japan by the Department of Defense and the United States Armed Forces, to ensure that effective and timely assistance is given to them, including providing legal assistance in preventing the incidence of wrongful retention or removal of minor children and acting to obtain the expeditious return of their dependent children from Japan at the conclusion of their tour of duty in Japan;

(F) call upon the Secretary of Defense to include the issues of child abduction and the protection of members of the United States Armed Forces and their families stationed abroad in any current or future status of forces agreement;

(G) call upon the Secretary of State to enact immediately a Memorandum of Understanding with the Government of Japan to establish a bilateral protocol with procedures to address immediately any parental child abduction or access issue reported to the United States Department of State; and

(H) urge the Department of State to include international child abduction and Japan’s actions regarding abductions as a human rights violation under its Country Reports on Human Rights Practices.

Published by: ABP World Group International Child Recovery Service

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Japan: The Black Hole of International Parental Child Abduction

 

Chasing Parents from all over the United States who have their children criminally abducted and detained in Japan have joined together under the banner of ‘Bring Abducted Children Home’ (www.bachome.org/events.htm) , in an effort to raise the public’s awareness on the growing cruelty directed at defenseless, innocent U.S. children-citizens victimized by the act of international parental child abduction. The group, which consists of nearly 50 Chasing Parents and their supporters have descended on Washington, D.C. to meet with lawmakers and government officials in order to press for the return of their children, while also intending several formal protests and awareness campaigns in order to educate the scores of visitors celebrating Japan’s culture.

The timing of their rally could not be better: this week, Washington celebrates the Cherry Blossom Festival, where over a million visitors are expected to visit the nation’s Capitol. One of these visitors expected to visit is Japan’s Prime Minister Yukio Hatoyama.

Japan has never returned a child that has been internationally parentally kidnapped and illegally detained in their country in accordance to the laws of the child’s nation of habitual residency. According to various reports, it is estimated that there are over 1,300 children who had been criminally abducted from a foreign country and presently criminally detained in Japan. In addition, in the last decade alone there were 167 child abduction cases in Japan reported to the State Department involving 230 children. This, despite an assortment of U.S. court orders and demands for these children to be returned home.

Zero abducted children returned from Japan equates to this country becoming known as the ‘Black Hole of Abduction’, and a ‘Safe Harbor’ for parental child kidnappers.

Sadly, most American citizens and for that matter, most citizens of developed and progressive-leaning countries have no idea that Japan is a safe-harbor for child abductors, none of whom face prosecution or extradition in Japan. And why would the public not know this? Isn’t Japan one of the United States’ strongest strategic partners and allies? On the surface, the answer to this question is ‘yes’. But how can a strategic partner allow for criminally abducted children to remain in their country and under the guidance and care no less, of the abducting parent?

Culturally, Japan’s courts allow for only one parent to have access and custody of a child during divorce proceedings. Tragically for the child and the child not selected to be with their own child by the court, contact and communication is frowned upon and not approved. This approach is far different than the West, where research and common sense demonstrate that a child is best served by knowing the love of both parents.

For example, the case of Navy Commander Paul Toland and his daughter Erika’s plight provides one microcosm that there is more to Japan’s refusal to comply than what is commonly referred to as ‘cultural differences in law’. In Commander Toland’s case, his daughter Erika was abducted by the child’s US Citizen mother while he was assigned in Japan on military duty. Shortly after, the mother died, and the grandmother took possession of Erika where she remains until this day, held captive in a country that has never returned a child. The US State Department tried to intervene and asked to visit Erika to check on her welfare and well-being, but the grandmother denied their request. The Japanese Ministry of Foreign Affairs asked to visit Erika to check on her welfare and well-being, but again, the grandmother denied their request. In the Japanese system, where no enforcement mechanisms exist and compliance is completely voluntary, all any government agency can say is “We’re sorry, we tried.” Nobody can offer any remedies or solutions, because none exist. Commander Toland, who is Erika’s sole legal custodian under Maryland State Law, remains with absolutely no access to his daughter. Erika has been gone now for nearly seven years. Her father Paul loves her with all of his heart.

Commander Toland commented, “I never dreamed that serving my country overseas in one of our allied nations would result in the loss of my only child. Japan is supposedly an ally of the United States, so why does the United States continue to tolerate this behavior from Japan? How can a nation that we call an ally be guilty of such despicable human rights violations and get away with it? Our children are all we have, and every civilized society has the responsibility to ensure that their most vulnerable citizens, their children, have the opportunity to know and love their parents..”

In another case that cuts through the chatter of cultural issues is the case of Captain William Lake. In Captain Lake’s case, his former spouse, who is not a Japanese citizen, abducted his daughter Mary Victoria to Japan despite an array of court orders. The abducting parent has no national ties to Japan; however, for nearly five years Japan has provided a safe harbor for the abducting parent despite having no connection to Japan. Mary Victoria will be 13 this Sunday. Her father William loves her greatly.

Christopher Savoie, who drew international media attention to the Japanese government’s complicity with child kidnappers when he was wrongfully detained by Japanese police last year while attempting to retrieve his two kidnapped children stated, “I am glad that the tide is turning and that this extremely shameful aspect of Japanese culture is being exposed for what it is. People are starting to realize all of the previously closely guarded dirty secrets of Japanese society such as the popularity and legality in Japan of child pornography, legal “consensual” sex with 13 year-old children, cover-ups about killer vehicles, the ruthless killing of dolphins and the most disgusting secret of all– that Japan officially and shamelessly supports and even assists in the kidnapping of innocent kids from countries that are supposedly their ‘allies’.”

Read more here: http://bignews.biz/?id=858756&pg=3&keys=Child-Japan-abduction-Parental

Published by: ABP World Group International Child Recovery Service

 

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