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Criminal Prosecution and International Child Abduction

Criminal prosecution can play a significant role in international child abduction cases. However, it can be a double-edged sword. Some courts use the possibility of criminal prosecution against an abducting parent as a reason not to order a child's return.

Interpol Notices

One of Interpol’s most important functions is to help police in member countries share critical crime-related information using the organization’s system of international notices. 

Notices can be issued in cases of international child kidnapping.

The notices include:

notice

Extradition Treaties Interpretation Act of 1998

18 USC § 3181 

SEC. 202. FINDINGS.

Congress finds that—

(1) each year, several hundred children are kidnapped by a parent in violation of law, court order, or legally binding agreement and brought to, or taken from, the United States;

(2) until the mid-1970’s, parental abduction generally was not considered a criminal offense in the United States;

(3) since the mid-1970’s, United States criminal law has evolved such that parental abduction is now a criminal offense in each of the 50 States and the District of Columbia;

(4) in enacting the International Parental Kidnapping Crime Act of 1993 (Public Law 103–173; 107 Stat. 1998; 18 U.S.C. 1204), Congress recognized the need to combat parental abduction by making the act of international parental kidnapping a Federal criminal offense;

(5) many of the extradition treaties to which the United States is a party specifically list the offenses that are extraditable and use the word ‘kidnapping’, but it has been the practice of the United States not to consider the term to include parental abduction because these treaties were negotiated by the United States prior to the development in United States criminal law described in paragraphs (3) and (4);

(6) the more modern extradition treaties to which the United States is a party contain dual criminality provisions, which provide for extradition where both parties make the offense a felony, and therefore it is the practice of the United States to consider such treaties to include parental abduction if the other foreign state party also considers the act of parental abduction to be a criminal offense; and

(7) this circumstance has resulted in a disparity in United States extradition law which should be rectified to better protect the interests of children and their parents.

SEC. 203. INTERPRETATION OF EXTRADITION TREATIES.

For purposes of any extradition treaty to which the United States is a party, Congress authorizes the interpretation of the terms ‘kidnaping’ and ‘kidnapping’ to include parental kidnapping.

Office of Children’s Issues, U.S. Department of State:

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 120 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” treaties.

Dual 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 persons generally may be extradited under the treaty if their conduct is a crime punishable by more than one year imprisonment in both countries.

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).

International Parental Kidnapping Act

The International Parental Kidnapping Act (18 USCA 1204), enacted in 1993, is an important component of the international family lawyer's arsenal.

It makes it an offense to remove or attempt to remove a child who has been in the United States from the United States , or retain a child outside the United States, with the intent to obstruct the lawful exercise of parental rights. The offense is punishable by a fine under Title 18, imprisonment for not more than three years, or both.

The statutory language is as follows:

18 U.S.C. § 1204. International parental kidnapping

(a) Whoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights shall be fined under this title or imprisoned not more than 3 years, or both.

(b) As used in this section—

(1) the term “child” means a person who has not attained the age of 16 years; and

(2) the term “parental rights”, with respect to a child, means the right to physical custody of the child—

(A) whether joint or sole (and includes visiting rights); and

(B) whether arising by operation of law, court order, or legally binding agreement of the parties.

(c) It shall be an affirmative defense under this section that—

(1) the defendant acted within the provisions of a valid court order granting the defendant legal custody or visitation rights and that order was obtained pursuant to the Uniform Child Custody Jurisdiction Act or the Uniform Child Custody Jurisdiction and Enforcement Act and was in effect at the time of the offense;

(2) the defendant was fleeing an incidence or pattern of domestic violence; or

(3) the defendant had physical custody of the child pursuant to a court order granting legal custody or visitation rights and failed to return the child as a result of circumstances beyond the defendant’s control, and the defendant notified or made reasonable attempts to notify the other parent or lawful custodian of the child of such circumstances within 24 hours after the visitation period had expired and returned the child as soon as possible.

(d) This section does not detract from The Hague Convention on the Civil Aspects of International Parental Child Abduction, done at The Hague on October 25, 1980.

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