An Oral Presentation Regarding Child Abduction
Background
I was recently elected to the City Council in Englewood, New Jersey, where I reside. After spending nearly four years as a Special Assistant U.S. Attorney with the U.S. Attorney’s office in Brooklyn—where I represented the Immigration and Naturalization Service among other federal agencies—I joined my father’s firm, Wildes & Weinberg, which has exclusively practiced in the field of U.S. Immigration, Consular and Nationality Law for the past forty (40) years. Working as a Federal Prosecutor was invaluable in exposing me to the resources and limitations of U.S. law enforcement with regard to international prosecutions and immigration controls. Our firm receives referrals and represents some of the finest individuals and most prominent companies in the world as they settle themselves and their personnel in our country.
Over the last several years, I have also been retained by several high-profile individuals and whistle-bowers who have sought asylum in the United States. Chief among them are a Saudi Arabian diplomat (Mohammed Al-Khilewi) who defected after walking off with incriminating evidence of international terrorism and espionage; an accused terrorist (Hani Al-Sayegh) allegedly implicated in the Khobar Towers bombing in Saudi Arabia—a tragedy in which nineteen U.S. servicemen lost their lives; and most recently a Pakistani nuclear scientist (Dr. Iftikhar Khan) who sought refuge on our shores with alarming information regarding nuclear proliferation and the transfer of nuclear weaponry between Pakistan, China, and Iran. I considered it a privilege to represent my government in the U.S. Attorney’s office—and have in each of the case described above—been able not only to protect my client’s interest—but in turn these individuals have assisted U.S. law enforcement, furnishing useful information to combat terrorism and curtail nuclear proliferation.
I suppose it was my federal law enforcement background that best prepared me to represent the prominent diplomats, scientists, and other international whistle-blowers who found their way to our shores and were willing to provide useful intelligence information in exchange for safe passage and refuge.
Introduction
With the increase of international travel as well as the greater numbers of marriages between nationals of different countries and United States citizens, international child abductions are on the rise. My presentation today is based on my experiences representing several clients over the course of the past few years as well as written materials that have been previously authored in the field. Since the 1970s the State Department has received 11,000 reports of American children being abducted to foreign countries. The number is always on the rise. Unfortunately, the annual number of children abducted from the United States has risen dramatically since—and these are only the reported cases.
While representing a Saudi diplomat in 1994, I had the privilege of first meeting Pat Roush—who just spoke—who introduced herself to me, advocating that her circumstances would further expose Saudi corruption and that her plight could benefit from my involvement. Since then, Pat and I have taken her cause to the highest levels of our government, we have marched ourselves through the halls of Congress—making law, noise, and impassioning others to fill the large gaps in our laws. I have represented Pat Roush since 1994 without a fee and many others since then on a “pro bono” basis. My heart goes out to these dear parents for the misery that they have endured, and find it personally rewarding to see to it that these laws are ultimately changed.
I am sure that our founding fathers would be quite disappointed that our government could broker tremendous financial arrangements with nations—even friendly nations—and negotiate the placement of military installations in very sensitive regions, but when it comes to negotiating the return of our young citizens kidnapped and taken abroad or when it comes to reconciling family disputes internationally—our government turns its back on its own citizens.
I have been asked to consult to major network television with regard to the Elián González matter of late, where many of these concerns have been raised. Whether you feel he was improperly abducted by his mother and should be returned to his father in Cuba or you believe that he deserves to remain in the United States—most would argue that we could all benefit from the exposure and precedent that will hopefully be culled out from this international escapade. In short, I can venture to say that no one in the room wants to see a young boy separated from his parent. Yet, I believe that the Attorney General did not treat this case appropriately. She could have averted the use of force had she originally entertained the applications put forward—when the young boy’s father was not on United States soil.
More importantly, the fact that there was no settled law to ameliorate this dispute shows me that we have a lot of ground to cover. The precedent established in this case will have reverberations for many in the years to come. This case should have been off of the streets where politics on both sides played heavily into our system and distorted the issues at an earlier stage. What I find most intolerable is that the U.S. government has spent so much time and our tax resources when over 11,000 of our citizens have been ignored. The government has clearly taken advantage of the confusing legal arguments and the several venues involved in this matter. The most that we can expect from our State Department in over 11,000 other cases, however, is a list of attorneys, a welfare visit, and a sympathetic ear. Even the Justice Department fails to file international warrants in many case, labeling these parental abduction matters as “domestic-custody disputes.” This is not acceptable when we pride ourselves on being the moral compass of the world. Parents who spirit their children away to foreign territories are no different from any other kidnapper and are in fact criminals. The photos of the young boy being returned to his father at the muzzle of a gun speaks very loudly that legislation and support is badly needed in this arena. Is this how we expect our children to be treated overseas when we want our children returned? Is the State Department and Justice Department condoning the use of force?
The State Department has adopted a policy of neutrality rather than advocating for the recovery of our children. Our young citizens ought to be able to enter our embassies abroad, secure their passports and the protection of our government, which should take strong diplomatic positions on such issues so that these children might return to our shores. I can think of no greater purpose for our embassies overseas to serve. How many children would still be with their parents had we instituted such concerned measures? Congress needs to enact statutes that would sanction governments that permit kidnapping, vigilantly prosecute kidnappers, and send a strong message to the governments of the world—so as to avert years of devastation caused by the many state, federal, and international loopholes in the law that enable child-kidnapping to prevail.
Just last week I was able to assist in the return of two young children kidnapped to France—where a family court in New York nearly refused to accept jurisdiction because the attorney and law secretary to the judge did not have a firm understanding of U.S. immigration law. Often there is a complex confluence of immigration, international, family, and state law and practice that needs to be mastered by attorneys representing their clients.
I am not an expert on Hague Convention law, nor am I a specialist in the family court process—I felt it appropriate in view of the many experiences that I’ve had to separate my presentation so as to provide more practical guidance to those who have either found themselves in circumstances where their children have been abducted and to those here who feel that they are at risk or can help those at risk.
Prevention of Abductions
Simply put, if you or a loved one are in a cross-cultural marriage—you need to evaluate your vulnerability and try to determine if you are indeed at risk. I have even found the “rooting” of an individual’s intentions to eventually abduct a child can arise even in family vacations abroad or in the celebration of international holidays. These trips need to be carefully watched. I would suggest that couples secure as many names, addresses, contacts, and data that they can get their hands on. This includes the recording of passports, bank accounts, driver’s licenses, and any old utility bills that you can get your hands on. The more writings you have—the more leads you might succeed in following in the future.
I have suggested taking many photos and fingerprints of your children on a regular basis—even along on your person when you travel so that you are prepared for all eventualities. I know parents who teach the children how to call collect and create all kinds of plans in the event of an emergent circumstance. Finally, if you feel that you are at risk, it is very important that you enlist a good attorney at an early stage so that you can evaluate your strongest legal options and plan accordingly. Often clients as well as members of their family require emotional support. I would suggest the enlisting of a good therapist as well. You need your wits about you. You need to garner as much emotional and financial support as you can from your loved ones and friends so that you are prepared to meet all the challenges that you may face.
Just because a couple has problems does not necessarily mean they need to go to war over the children. With today’s society, as mobile as it is—separation agreements could be flexible and international child abductions could be averted with some creativity. I have heard from scores of parents that have prevented abductions by simply negotiating terms and leveraging what they can—both informally or in the courts.
Of course, if you feel you are at a total imminent risk—bodyguards should be hired and a 100 percent, 24-hour effort should be put into securing all legal rights and personal protection of the child—for both the child’s protection and yours.
Once you’ve determined that you are vulnerable, and that your marriage is at an impasse—I would recommend your securing a decree of sole custody including an order preventing any travel abroad. Some courts will require a bond to be posted as a deterrent and these measures could be provided in separation agreements as well.
You should secure several certified copies of these documents so that you can provide them to schools and other custodial guardians. Certainly, you should alert the U.S. State Department Passport Division—to stop the issuance of a United States passport. Foreign embassies in the United States and embassies abroad should be alerted as well.
If a child is abducted, the first priority is to determine the exact location of the child and to secure an automatic freeze order and warrants from your state and Federal Courts. Whether you call your local police authority, the FBI, or any other law enforcement contacts you have— what is critical is a complete written summary of the actual circumstances perpetrated during the course of the abduction so that this information could be used by both police authority investigators and later in the legal system.
Letters and reports should be filed immediately with the National Crime Information Center as well as the State Department Children’s Issues Desk—which will immediately alert their passport name check system. If you know where the child is—you should request a “welfare visit and whereabouts visit” from the local United States Embassy or Consulate as well.
I would suggest contacting relatives and friends both in the United States and abroad to enlist local civic support—your social center, church or synagogue, etc. You will need to prepare literature, posters, postal traces, and Department of Health locators as well as social security tracers.
Some parents have sought judicial subpoenas and search warrants in order to secure credit card information, old phone bills and other mechanisms by which you can locate a child’s abductor. Even the E Z Pass—the little gizmo you use in order to go through a toll without paying—could provide information on the whereabouts of a child abductor. It is just as important to put out photos of the abducting parent as much as the children that have been abducted—which would be more readily recognizable to others who could assist you. Even if you feel that the parent has not yet left the U.S., I would suggest consulting with a foreign attorney and hiring yourself an attorney in the United States who is both familiar with immigration controls and family law. Be mindful that individuals with dual nationality may be traced through their passport requests. I would hesitate to cancel requests made of foreign passport authorities by abducting parents. You might find your former spouse and child in a third country by virtue of a passport application being filed at that site. Of course, you will also need to explore whether or not the country that you believe your child will be taken to ultimately supports extradition to the United States or not.
The more information you have at your disposal, the more data that you control—the greater the odds are that you will be able to react appropriately and secure your child. Due in great measure to Pat and my lobbying—immediate family members of those who aid and abet child abductors will now be prohibited from securing admission to the United States. We hope one day they too will also be prosecuted. It is so important for everyone to realize that not only will you be prosecuted if you kidnap a child—but if you provide a safe haven for an abductor—you will be sought out as well. Finally, if you are successful in securing the return of your children, you may nonetheless contemplate a full prosecution despite your initial success. There are federal statutes which mandate a three-year federal term of imprisonment for those who abduct children.
Depending upon the U.S. Attorney’s office and the particular district, we have seen the government commence these criminal prosecutions. These are new statutes that need to be enforced, and encouraged. (Dr. Petrov-Syria matter.) Often the process of trying to secure your children back involves tremendous energy and time. I would recommend leaving no stone unturned, going on record in writing to every official with whom you have spoken, and calling other parents who have gone through this as well.
There is obviously a big difference if your child is abducted and taken to a country that has signed the Hague Convention. The Hague Convention sought to compel the return of a child to the child’s state of habitual residence, in order to facilitate a proper determination of custody based on the child’s “best interests.” It is a procedural device for the return of a child—not a custody determination. Only fifty-three countries have ratified the Hague Convention. The language of the exceptions to the Hague Convention delegates significant discretion in ordering the return of an abducted child. Particularly, the “grave risk of harm” exception and the “consent” exception. A judge can refuse to return a child, if he or she finds that the child objects to being returned or has attained an age and degree of maturity at which it is appropriate to take account of the child’s views. The court also has a broad degree of discretion in determining whether or not there is a “grave risk” in returning an abducted child to its home country and the Convention does not provide many threshold levels or standards.
For the past years I have been primarily dealing with countries that have not ratified the Hague Convention. I felt it appropriate to focus on the immigration controls and tools that could be useful. Since so few nations have become contracting states, many “safe harbors” have been created, greatly limiting the efficacy of the Hague Convention. A parent can now abduct a child and take it to a nonmember country with little immigration control: to date, we in the United States have no departure control system. What we do have depends totally on a person voluntarily presenting his or her own documentation to an airline.
The State Department reports that most child abductions reported since the 1970s have in fact been to noncontracting states. In addition, since the Hague Convention is not retroactive, it will also not affect children already abducted to a new signatory country. Thus, outstanding abduction cases cannot be resolved under this treaty. Statistics have indicated that the deterrence effect of the Hague Convention only applies to member nations as well.
To date, no Middle Eastern nation, with the sole exception of Israel, has signed on to become a member state. Many Southeast Asian countries are also not contracting states as well as are many Central and South American countries. Parents often abduct their children to a country in which they hold dual citizenship, or to which they have ethnic, cultural, or religious ties. Intercultural marriages have increased recently. The Middle East and Asia are perhaps the two most likely regions, and Muslim and Asian parents are especially motivated by religion and culture to abduct their children back to their native country. The Hague Convention cannot aid in the return of these children. In fact, the State Department released its human rights report, which fails to cite even one country for violating the Hague Convention on custodial parental rights.
What Do You Do If Your Child Is Taken to a Country That Doesn’t Ratify the Hague?
In the absence of the Hague Convention, the domestic laws of the country in which the abducted child is located dictate custody. Islamic countries, for example, traditionally grant custody to the father. Rarely is an American woman granted custody of a child, regardless of whether she had converted to Islam. Saudi Arabian law, for example, even provides that, when the father is deceased, custody is granted to the closest living Saudi male relative, rather than to the American mother. This male bias is often relevant to abductions in the Middle East because most abductions are committed by the father.
Practice has shown that foreign courts give greater weight to the custody requests of their own nationals and that they are rarely resolved through diplomatic channels. Diplomatic ineffectiveness, coupled with Islamic cultural differences and bias, highly disadvantages American parents. Since a parent can abduct and retain a child with relative ease in a noncontracting state—I recommend going through the legal process overseas with competent counsel. First, you never know whether or not a particular country will use your case to make law, and what political events or buttons are being pushed at a particular time—rendering your case politically significant. Often deals are struck behind the scenes so as to quell adverse publicity.
Without the benefit of the Hague Convention, an aggrieved parent may ultimately have to litigate custody in the respective foreign court. If the litigation is unsuccessful and if diplomatic attempts to resolve the issue prove ineffective, no legitimate outlet remains. In desperate situations, coupled with love for a child, recovery attempts have been rampant. The United States State Department does not recommend the use of covert recoveries. It could violate the criminal law of the country in which it is attempted, and you could be prosecuted. A country has jurisdiction over a criminal act that has occurred within its territory, and sanctions vary from country to country.
Nonetheless, many American parents have employed mercenaries or private investigators, which have proven to be most expensive and effective. A parent might still be viewed as an accomplice or co-conspirator but usually escapes arrest by refraining from travel to that foreign country. It is interesting to note that most successful covert recoveries within the last decade have been from Hague signatory countries (Mexico, Germany, etc.)—serving as further evidence of the world’s noncompliance.
The Hague Convention will not pose an obstacle to the successful recovery of a child. A parent who originally abducts a child will not be able to invoke Hague Convention protections.
The United States government will not honor a foreign decree obtained as a result of a “wrongful abduction” and thankfully will not encourage the taking of children from this country in order to obtain a more favorable custody determination in one’s native country. If you engage in a covert recovery—you have to still be careful of perceptions, possible harm to the child during the extraction, and potential arrests. Of course, this is the extreme example as to why we require legislation and why significant congressional action is so vitally required.
What More Can We Do
Since the exceptions to the Hague Convention are problematic, safe harbors allow an abducting parent to escape, regaining custody through foreign courts is often futile, and recovery can be quite expensive—many believe that there is still more that can be done. These suggestions were made in writings I have seen through the years. I would refer you to a 1995 Emory International Law Review article by Tom Harper, who suggested that:
Conclusion
I currently represent several parents whose children have been kidnapped and taken to other countries. I have some success with Syria where we were able to retrieve three children several months ago and most recently—France. I am currently working with a client whose husband absconded with their child and returned to Lebanon. I am impassioned on behalf of my clients and find it unconscionable that our government has not better represented the interests of parents. The laws that we have on the books need to be vigilantly pursued, and our government must be encouraged to not only prosecute kidnappers to the fullest extent of the law—but must promulgate laws to fill the legal gaps. As the moral compass of the world, we need to send out a very strong message to those who would spirit our children away. Each time I am a guest on a network television show I receive scores of telephone calls from parents in similar circumstances. Our citizens need to be warned and educated so as to act preemptively rather than react in what can only be a devastating ordeal. I salute all of you in this room who have taken up this cause and am proud to stand among your ranks.