India: Kidnapped by mom (or dad)


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A large number of women married to Indians residing abroad are compelled to return to India with their children when the spousal relationship turns sour. The moral minefield embedded in the shifting landscape of marital discord moves to the much complicated terrain of a custody battle. When children are abducted by their own parent, it results in their being traumatised and their parents being destroyed.

The complicated pitfalls of crosscultural relationships, and the inadequacies of international law to serve justice in the interests of the most vulnerable, even makes it tricky for the judiciary to decide such cases. There is a rise in such cases of cross-country battles which often take an ugly shape. Though “abduction” is a strong word for an act by loving parents, but legally speaking that is what it is. Confusingly for children innocently loving both parents, it’s also often the case of parents putting their own needs above those of their children.

Worldwide, about 70 per cent of children are taken by their mothers. Australia witnesses between 250 and 300 children being abducted by a parent. At present, there are about 80 cases where Indian parents have removed a child from the US and brought him or her to India and in some cases where parents have taken the children to the US from India.

In the absence of a domestic law on “inter-parental child abduction” in India, very often children of such NRIs’ who have grown up abroad become silent victims of their parents’ marital dispute when they are forcibly brought back by one of them. Currently, there is no specific Indian legislation addressing issues related to abduction of children from and into India. However, the Law Commission of India had submitted its 218th report titled ‘Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction 1980’ on 30 March 2009, though there has not been much development on this front.

Recently, the Commission has also suggested some modifications in “The Protection of Children (Inter-country Removal and Retention) Bill, 2016”. It recognizes the issue of interspousal child removal on breakdown of diverse family units, in a situation where children are abducted by their own parents to India or to other foreign jurisdictions, in violation of interim/final orders of competent Courts.

In the US and Europe, interparental child abduction is a serious offence where the accused parent can go to jail on charges of abduction. Closer home, Sri Lanka, which is a signatory to the Hague Convention, has framed its own rules that allow the court to decide if a child should be sent back to the country from where he or she was removed.

Hague Convention

Hague Convention is a multilateral treaty which came into existence on 1 December 1983. It seeks “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for the rights of access.” It seeks to return children abducted or retained overseas by a parent to their country of habitual residence and for the courts of that country to decide on matters of residence and contact.

The convention applies to any child up to the age of 16 years, who is a habitual resident of any of the contacting states. If the country of destination is a signatory to the Hague convention on the civil aspects of international child abduction, the “left-behind parent”, as they come to be known, can seek legal recourse.

Ninety-four countries are party to this convention and there are procedural rules that apply to the cases including a timeline and how they should be handled. India is not a signatory to the Hague Convention. A country has to have a domestic law in place before it can become a signatory and soon India is going to have a domestic law on it.

India’s stand

According to the Ministry of Women and Child Welfare, the matter of ratifying the Hague Convention was taken up following lobbying by groups in the United States and certain European nations. The pressure from the developed countries to get India to be a signatory to the treaty was based on gender equality and the idea that the father should have equal rights to the child as the mother.

Unfortunately, that doesn’t apply here given the reality of Indian marriages. In some of the cases, husbands have procured orders from US courts which could translate into the woman being arrested the minute she goes back to the foreign country. If the convention is ratified, India has to send the woman and the child back immediately as the act of escaping with the child is treated as abduction. This strips them of the protective cover they have in their own country.

Since India is not a signatory, presently the father has to come to India to take legal recourse in Indian courts if he wants to claim custody of the child.

Judicial Response in India

The Supreme Court had several occasions to deal with such complex emotional issues and it has repeatedly held that repatriation of the child to the foreign land should not (a) cause any moral, physical, social, cultural or psychological harm to the child; (b) cause any legal harm to the parent with whom the child is in India; (c) violate the fundamental principles of human rights and freedoms of the receiving country, i.e., where the child is being held and; (d) considering the child welfare principle, due importance must be given to the primary care-giver of the child.

In the latest case of Surya Vandanan v. State of Tamil Nadu (2015), it has held that primary importance is to decide whether the foreign court has jurisdiction over the child in question if the child is ‘ordinarily resident’ in the foreign court’s territorial jurisdiction and, then the order of the foreign court must be given due weight and respect.

Emotional consequences

Most children who are abducted by a family member suffer tremendous emotional consequences. The parents should prioritise the welfare of the children and the impact on the children due to such action. After Mexico we have more abductions from India than from any other country. The Mexican cases get resolved, the Indian cases don’t.

Unfortunately, women involved in cross-jurisdictional divorces, ‘holiday marriages’ or ‘limping marriages’ have to face additional challenges in the custody battle, which also relate to the problem of jurisdiction, access to judicial recourse and resources. This may be viewed as a bias against the interests of women.

The woman must not be put in a situation where she has to make the impossible choice between her children and putting up with an abusive relationship in a foreign country.

Conclusion

Parental child abduction is a calculated, malicious act committed by a disgruntled spouse/ex-spouse, who may be forum shopping to avoid a fair and timely child custody determination, and who may be in violation of already existing custody orders. This is a violation of a child’s rights as per the law in many jurisdictions. The abducting parent inflicts emotional, psychological pain on the parent left behind without regard to the child’s well being, often with the backing and support of the abductor’s family and legal advisers. Such act deprives the children of parental love and affection, robs them of their family, friends, their home, their identity, and systematically alienates them from a familial atmosphere.

If you have any questions or concerns regarding parental parental child abduction to, or from India feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311

Canada: Teen charged in abduction


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Police say a Saskatchewan girl abducted from a playground last week was dropped off in a wooded area outside Prince Albert.

Insp. Jason Stonechild says the eight year old walked from the woods to a nearby farm.

“RCMP officers and members from our service immediately attended to this farmyard, where officers were able to confirm that we had located our subject of the Amber Alert,” Stonechild said Wednesday. “The victim was immediately taken to Victoria Hospital by our members for proper assessment.”

An Amber Alert was issued July 4 after the girl disappeared from a Prince Albert school playground.

Police said the girl was playing by herself when a man entered the park. He grabbed her and put her into the back seat of his car. She was found several hours later.

While police were at the farmyard, they received a call from a business in Prince Albert saying they had someone matching the suspect’s description, Stonechild said. Officers arrested the suspect without incident.

Jared John Charles, 19, is facing numerous charges, including kidnapping, forcible confinement, sexual assault and abandoning a child.

f you have any questions or concerns regarding a child abducted to, or from Canada please feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

Canada: Police issue safety tips


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Two people have been charged after a child was abducted in Elliot Lake.

In a release, the East Algoma Ontario Provincial Police said officers got a call Saturday about “a non-custodial abduction in the Elliot Lake area.”

The suspects appeared Sunday in the Ontario Court of Justice bail court in Sault Ste. Marie. Police are saying little else about the case.

“In order to protect the identity of the children involved, no further information will be provided,”‘ police said. “However, police would like to take this opportunity to remind parents and/or guardians the importance of safety with their children.”

Safety tips for children passed on by police include:

– Know your name, address and phone number(s).

– Learn how and when to call 911.

– If you are scared of someone, run to safety.

– It’s OK to be rude to a grown-up if you feel you are unsafe.

– Learn the difference between an “OK” secret and a “not OK” secret, and beware of an adult that asks you to keep a secret from parents or your guardian.

– Have a “Call List” and know how and when to use it.

– Don’t let anyone on the phone or at the door know that you are home alone.

– If you ever get lost in a mall, ask the closest store clerk for help and then stay where you are until you are found.

– Avoid shortcuts when you are walking from one place to another.

– If you are ever “scooped,” scream, kick, bite and fight as hard as you can to get away. Never trust what the “scooper” tells you.

– Tell your parents or a trusted adult if someone is asking you to do something that makes you feel uncomfortable. Listen to your “Uh Oh” voice.

– Always ask your parents for permission before getting on the Internet.

– Never talk to people online without your parent’s permission.

– As for parents/guardians, work hard to establish trust and communication with your children. Ensure you know how to find them at all times.

If you have any questions or concerns regarding an abducted child please feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

Government likely to junk inter-parental child abduction bill


November 8, 2016

Source: http://timesofindia.indiatimes.com

NEW DELHI: Despite international pressure, the Centre is likely to junk the bill on inter-parental child abduction, which deals with child custody issues for NRI couples and would have paved the way for India’s accession to the Hague Convention.

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The Law Commission, though, recently submitted its report to the Law Ministry and stuck to its 2007 stand advising the government to accede to the Hague Convention on the Civil Aspect of International Child Abduction (1980).

“We are very clear that we are not signing the Hague Convention. This is a decision collectively arrived at by the Women and Child Development (WCD) Ministry, Ministry of External Affairs (MEA) and the Ministry of Home Affairs (MHA),” said a senior WCD Ministry official.

On June 22, 2016, the WCD Ministry had uploaded on its website a proposal to enact a draft of the Civil Aspects of International Child Abduction Bill, 2016. Subsequently, the draft bill was placed on the website seeking comments.

The draft bill was prepared following a reference made by the Punjab and Haryana High Court to the Law Commission of India and the WCD Ministry to examine the issue and consider whether recommendations should be made to enact a suitable law and for signing the Hague Convention.

However, the bill has since been removed from the ministry’s website.

The draft envisaged “prompt return of children wrongfully removed or retained in a contracting state, and to ensure that rights of custody and of access under the law of one contracting state are respected in other contracting states.”

It also proposed a central authority to discover the whereabouts of the child, to prevent further harm to any such child and to secure the voluntary return of the child to the signatory nation.
WCD Minister Maneka Gandhi has expressed apprehension over acceding to the Convention at several forums, primarily on two grounds – that taking such a decision will not be in the interest of aggrieved women and because the government maintains that there are fewer instances of Indian children being abducted and taken abroad.

At an event last month she had said, “Personally, in the beginning, when I was new, I thought we should join the Convention because we get protection. But with time and after interacting with women who have been abandoned by their husbands abroad, had their passports snatched from them, been beaten up, and have somehow scraped the money and are in terrible fear, I wonder whether we should join or not.”

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Parents who abduct children to foreign land may be jailed


October 18, 2016

Source: newindianexpress.com

NEW DELHI: Parents who forcibly take their children to a foreign land following a marital discord can be jailed for a year, if Law Commission has its way.

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In a proposed draft law on ‘parental abduction’, the Commission, which advises the government on legal reform, has said, “When such a kind of diverse family unit breaks down, children (sometimes babies) suffer, as they are dragged into international legal battle between their parents”.

The panel, which had already examined the issue of parental adbuction in 2009, has rewritten the draft bill prepared by the Women and Child Development Ministry after the Punjab and Haryana High Court in February asked it to examine “multiple issues involved in inter-country, inter-parental child removal amongst families”.

Inter-spousal child removal, it noted, can be termed as most unfortunate as the children are abducted by their own parents to India or to other foreign jurisdiction in violation of court orders.

The law panel said whoever wrongfully removes or retains a child either himself or through other person from the custody of a parent can be imprisoned for a term which may extend to one year or with fine which may extend to Rs 10,000 or with both.

For those who wilfully misrepresent facts or conceal information related to the location of the child will be guilty of an offence punishable with imprisonment for a term which may extend to three months or with fine which may extend to Rs 5,000 or with both, it has recommended.

The draft bill has also proposed setting up of a central authority to discover the whereabouts of a child who has been wrongfully removed. It will also prevent further harm to any such child and secure his or her voluntary return to the habitual residence.

It said the Hague Convention on the Civil Aspects of International Child Abduction, 1980, came into force on December 1, 1983 and it would be necessary to implement it in so far as they relate to an expeditious return of a child who has been wrongfully removed or retained in violation of the custody rights or access rights.

“In such an eventuality, the child is taken to a state with a different legal system, culture and language. The child loses contact with the other parent and is transplanted in an entirely different society having different traditions and norms of life,” the report submitted to the government today said. More than three crore Indians live in foreign countries, having cross-border matrimonial relationships.

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Father Fights to Have His Kidnapped Child Returned From Guatemala


September 27, 2016

Source: Newswire.com

Wilmington, North Carolina – September 27, 2016 – (Newswire.com)

It was a day he has replayed in his head thousands of times. In 2012, Don Seagraves arrived at his ex-wife’s house for his scheduled visitation with his three-year-old son, Urijah. But when he got there, Urijah and Don’s ex-wife, Ivonne, were gone. Don suspected that Ivonne had taken their son to Guatemala without following the judge’s order.

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Don and Ivonne had a joint custodial agreement, which Don had faithfully upheld. But even though Ivonne committed a crime when she violated the Court’s custody order, Don faces an uphill battle to be reunited with his son.

Like Urijah, more than 1,000 outgoing international child abductions are reported to the U.S. State Department each year.  According to findings by the U.S. Congress in 2014, only one of every two abducted children taken from the U.S. to a foreign country with which the U.S. has reciprocal obligations under the Hague Child Abduction Convention are ever returned to the U.S.[1]

According to Don and Ivonne’s custody agreement, neither party was allowed to leave the State of North Carolina with Urijah, pursuant to a Court order.  Then Ivonne filed a motion for permission to take Urijah to visit her family in Guatemala.

Don objected. But Judge James H. Faison, III granted Ivonne permission, on the condition that she return to the United States by July 31, 2012.  Judge Faison’s court order also required Ivonne to share the telephone and mailing address where she and Urijah would be in Guatemala. But Ivonne left the U.S. in secret, leaving no information about her whereabouts. Soon after, an arrest warrant was issued by the Pender County Sheriff’s Office against Ivonne for felony parental kidnapping.

“In North Carolina, state law makes it a felony to keep a child under the age of 16 outside the state in violation of a court order,” says Mark Spencer Williams, attorney for Don Seagraves.  See N.C. GEN. STAT. § 14-320.1.  “There is also a federal law, the International Parental Kidnapping Crime Act (IPKCA) codified at 18 U.S.C. § 1204, which makes what Ivonne did a criminal act.”

The Court awarded Don sole custody as a result of the kidnapping, but Don has still not been able to locate his son. He has spent the past four years searching for him, despite his limited financial and professional resources; Don is a high school graduate who works in the construction industry, and he does not speak Spanish. He could not afford an attorney, let alone the extraordinary costs associated with civil and criminal remedies in a foreign country.

Then Don made contact with Rice Law, a Wilmington North Carolina law firm. The firm took on Don’s case on a pro bono basis. With their help, the National Center for Missing and Exploited Children, Interpol, the CUE Center for Missing Persons, law enforcement, and private investigators were used to locate Urijah. The U.S. State Department asked the government of Guatemala to issue an “Alerta Alba Kenneth” which is its equivalent of an “Amber Alert.”  On August 19, 2016, after a four-year search, Don was notified that Urijah had been found, living with Ivonne in Guatemala. Ivonne was served with legal documents under the Hague Treaty, which will require her to appear in court in Guatemala on Don’s petition seeking the return of Urijah.

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But there is another obstacle— Guatemala has a history of noncompliance with this Treaty and the U.S. State Department has not taken action to enforce the treaty in Urijah’s case.

The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) provides that a child who has been a habitual resident of the United States before being removed to a foreign country, and who has been wrongfully retained in another country in violation of the left-behind parent’s custodial rights, should be promptly returned to the country of habitual residence.

One of the responsibilities of the U.S. Secretary of State is to address countries with a pattern of noncompliance, which can include withdrawal of U.S. assistance and requests for extradition of the kidnapper.[2]  However, even though the Hague Convention requires a hearing to be scheduled within six weeks, no hearing has even been scheduled in Don’s case. The State Department indicates it has not even been able to conduct a welfare and safety check on Urijah because “our Consular staff is restricted from entering the district where the child was located, due to security concerns.”

Kevin Brosnahan, spokesperson, Bureau of Consular Affairs at the U.S. State Department, indicated that, “due to privacy considerations, we are not able to discuss this case specifically.” However, Brosnahan notes that the State Department annual reports show that since joining the Hague Convention in 2008, Guatemala has been cited five times for patterns of noncompliance.

As a result of Guatemala’s non-compliance and the U.S. State Department’s silence on the case, Don Seagraves has sought assistance from his elected officials, including Congressman David Rouzer (R-NC), Senator Thom Tillis (R-NC) and Senator Richard Burr (R-NC). Seagraves is asking that the State Department implement the sanctions required by the Goldman act against Guatemala until it complies with the Hague Treaty. Don is also asking that Ivonne be extradited to the U.S. on the kidnapping charge.

According to foreignassistance.gov, $225 Million in U.S. Aid is sent to Guatemala, yet it is one of only three countries listed as non-compliant with the treaty by the U.S. State Department[3]. To date, Don is not aware of any specific action that the State Department has taken for Guatemala’s pattern of non-compliance.

It is cases like Urijah’s that have resulted in significant changes to our laws about international child abduction.  In 2004, Sean Goldman was abducted by his Brazilian mom, Bruna Bianchi, from her U.S. husband David. The case garnered national attention[4].  Ultimately, Secretary of State Hillary Clinton became involved in negotiations for the return of Sean Goldman[5]. Congressman Chris Smith (R-NJ) put financial pressure on Brazil through his efforts to stop aid to Brazil until Sean Goldman was returned[6].  After nearly six years, Sean Goldman returned home and in 2014, President Obama signed into law the Sean and David Goldman International Child Abduction Prevention and Return Act (P.L. 113-150).  The new law requires the U.S. Secretary of State to take action against countries like Guatemala that have a pattern of non-compliance, which can include the suspension of assistance and request for extradition of the parent who kidnapped the child.

The attorneys and staff of Rice Law, PLLC have provided pro bono assistance to Mr. Seagraves since 2012.  According to Mark Spencer Williams, the Managing Partner at Rice Law, “the U.S. has an extradition treaty with Guatemala that would extend to child kidnapping, but our local law enforcement has indicated that Guatemala is not likely to extradite Ivonne Seagraves back to the U.S. to face criminal prosecution.”  According to Williams, “it is especially frustrating that countries sign these agreements but then do not abide by them.”

To help Seagraves with some of the expenses associated with this, the Missing Children’s Defense Fund, a North Carolina non-profit 501(c)(3) will hold a charity golf tournament Saturday, 22 October 2016 at Echo Farms Golf & Country Club in Wilmington, North Carolina.

Many local businesses and individuals are working to support the effort to reunite Don Seagraves with his son Urijah.  Neuwirth Motors has donated a new Jeep as a hole-in-one prize, and Buffalo Wild Wings is providing food and prizes. Numerous other sponsors have come forward to help Seagraves.

“Our goal is to raise enough money that Mr. Seagraves can hire an attorney in Guatemala to help seek enforcement of the Hague Treaty and so he can travel to Guatemala for these hearings,” said Williams.

For more information or to register for the charity golf tournament, see http://www.planmygolfevent.com/29883-BringUrijahHome/index.html.  Supporters of Seagraves have also setup a GoFundme page at https://www.gofundme.com/bringbackurijah for donations.

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Federal hearing begins for man connected to international kidnapping case


September 20, 2016

Source: http://wivb.com

Eighty people sit in the Honorable Richard Arcara’s federal courtroom, anxious to see who will be among the jurors selected to hear the case against Philip Zodhiates.

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He’s the Virginia businessman connected to an international kidnapping case that has made headlines around the world.  A grand jury indicted Zodhiates on conspiracy and international parental kidnapping. He has pleaded not guilty.

The case stems from a 2009 kidnapping incident where Zodhiates allegedly helped Lisa Miller take her daughter, Isabella, from their home state, Virginia, to Canada via the Peace Bridge. It is believed the mother and daughter then boarded a plane to Central America.

Lisa Miller was in the midst of a custody dispute with her former partner — Janet Jenkins, when the alleged kidnapping happened.

The pair were married in Vermont in 2000; Isabella was conceived via artificial insemination in 2002; the couple split in 2003.

Before dissolving her union with Jenkins, Miller became a conservative Christian and renounced her homosexuality.

According to the Government’s timeline, Miller turned to the Mennonite community in Virginia for help and that’s where she came in contact with Zodhiates.

He’s one of the two men believed to have help Miller and Isabella get to Nicaragua. The other man, Timothy Miller, has been found guilty of conspiracy and international kidnapping. He’s a Mennonite pastor and missionary. He unsuccessfully appealed his conviction and is serving 27 months.

Miller and her daughter are believed to be in the Central American country still but haven’t been heard from since September 2009.

The case is set to last about two and a half weeks.

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