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:
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.
Contact Us
Jeremy D. Morley
International Family Law
230 Park Avenue, 10th Floor
New York, NY 10169
jmorley@international-divorce.com
Tel: (212) 372-3425
Fax: (815) 301-6742
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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). |
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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