Posted by Jeremy Morley | Feb 14, 2022 | 0 Comments

U.S. law allows a left-behind parent whose child has been abducted to the United States to compel the abducting parent to repay all of the fees and expenses incurred in seeking the child's return. 22 U.S.C. §9007(b)(3). But there is no similar provision that clearly entitles a left-behind parent whose child has been abducted out of the United States to seek reimbursement from the abductor of the fees and expenses incurred in seeking the child's return to the United States.

There is appears to be a split between the Ninth and Tenth Circuits as to whether federal legislation that authorizes an award of restitution to a victim of criminal offense can be used to recoup a left-behind's parent's legal expenses in cases of international parental child abduction once the abductor has been found guilty of international parental child kidnapping pursuant to the International Parental Kidnapping Crime Act (the “IPKCA”) 18 U.S.C. §1204.

The Victim and Witness Protection Act of 1982 authorizes a federal district court to sentence a criminal defendant to pay restitution to a victim of the offense to the extent of “expenses related to participation in the investigation or prosecution of the offense.” 18 U.S.C. §3663(b)(4).

In U.S. v. Cummings, 281 F.3d 1046 (9th Cir. 2002), the defendant father was successfully prosecuted under the IPKCA for having abducted his children from their home in the State of Washington to Germany. The left behind mother brought a return action against the father in Germany under the Hague Abduction Convention and an action in the State of Washington for contempt of court for his violation of a custody order. The father was sentenced to a term in jail and was required to pay the mother's legal fees and expenses in the two civil actions. The Ninth Circuit upheld the restitution award, holding that the mother's civil cases were not “wholly separate” from the government's prosecution of the father. This was supported by the fact that, by initiating a case under the Hague Convention, the mother had followed the procedure specifically described in the IPKCA as the preferred “option of first choice” for a left-behind parent.

More recently, however, the Tenth Circuit held in U.S. v. Mobley, 971 F.3d 1187 (10th Cir. 2020) that it would not follow Cummings. In Mobley, the government prosecuted a mother under the IPKCA for her abduction of her children from their home in Kansas to Russia. Once she was in Russia, she had filed there for divorce and custody in Russia. The left-behind father had then sued for divorce and custody in Kansas. The Russia court had given custody to the mother, and the Kansas Court given custody to the father. The district court found the mother guilty under the IPKCA and ordered restitution to the father of the legal fees and expenses that he had incurred in connection with the two civil cases.

On appeal, the Tenth Circuit overturned the restitution award. It held that §3663 is not satisfied by evidence that the expenses were incurred in proceedings that were merely “related to” the criminal offence. Instead, the expenses must be “related to participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” It held that the terms “investigation”, “prosecution” and “proceedings” are limited to the government's investigation, the government's criminal prosecution, and the criminal proceedings, in accordance with the ruling of the U.S. Supreme Court in Lagos vs. U.S., 138 S. Ct. 1684 (2018). There was no evidence that the government had directed or sanctioned the father's civil proceedings, and the mother's attempts to secure children's return “did not assist the government in its investigation or of prosecution of the mother.”

It remains to be seen whether Mobley will, in future cases, be successfully distinguished on its facts. Specifically, it is possible that proof could be elicited that the litigation efforts of a left-behind parent assisted the governor's prosecution of an international parental kidnapping case. In such a case, a restitution award might still be deemed appropriate. Even then, restitution would be restricted to those few cases in which an abductor is prosecuted under the IPKCA. Of course, recovery in any such case would be extremely remote.

About the Author

Jeremy Morley

Jeremy D. Morley was admitted to the New York Bar in 1975 and concentrates on international family law. His firm works with clients around the world from its New York office, with a global network of local counsel. Mr. Morley is the author of "International Family Law Practice,...


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