Introduction
Parental abduction is one of the crimes that affect children as well as their families. It can be defined as concealment or taking of a child by his or her parent in violation of the child’s other parent or family members. Cases of parental abduction are common in various parts of the world, including the US. For instance, in USA, it was estimated that about 600 children were abducted by their parents in 2015 alone and they were relocated to other countries. Domestically, about 354,000 children are abducted by their parents annually in the US. Apart from international parental abduction, the case of interstate parental abduction is also common in the US. The country has come up with a number of laws to reduce the rising cases of parental abduction and the latest being the Parental Kidnapping Prevention Act (PKPA). PKPA has been applauded as one of the best laws because it does not only help in reducing the cases of parental abduction but it also sensitive to the welfare and rights of children and families. Nevertheless, the existing laws in the US have some loopholes that affect the fight against child abduction. Parental abduction is a problem, which is simply occasioned and enhanced by the lack of correct implementation of relevant laws. 1
Therefore, the primary purpose of this paper is to examine and expose the problem of parental abductors who are domestically abusive. The research will seek to establish the loopholes that continue to make this problem continue in various states of the country. It is important to understand that the issue of parental abduction is now legal one, which involves lapses in the implementation of the relevant laws aimed at curbing it. Apart from examining the problem, the research will also endeavor to find out some specific areas of reform and make necessary solution recommendations. 2
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Overview of Parental Abduction
Parental abduction takes place in different forms. First, it occurs when one of the parents takes a child in violation of the custody degree that was signed within the law. Secondly, child abduction may take place when one of the parents fails to return a child after agreed-upon visit, which violates the custody agreements. At the same time, some parents may conceal the whereabouts of the child to another parent or transport a child to another country or state. Therefore, parental abduction takes place in various forms. 3
There are a number of factors that may motivate a parent to abduct his or her child. Studies have shown that some parents abduct their children in order to force reconciliation or to have contact with partners, especially in the cases of separation or divorce. The desire to punish or blame another parent is another common factor that always motivates parental abduction. The fear of losing child custody by abusive parents motivates them to abduct their children. At the same time, there are cases where parent’s paranoid delusion and mental illness make him to abduct their children. Besides, the need to protect a child from away from abusive parents is motivating factor towards child abduction. Parents give different reasons and excuses when they are accused of parental abduction.
A significant number, more than 50%, of children who are abducted are below eight years old. Specifically, children falling between three and five years old are more likely to be abducted. 4 Nevertheless, parents are less likely to abduct infants or adolescents. In term of gender, male children are more likely to suffer from parental abduction compared to their female counterparts. According to the study that was carried out by NISMART, 58% of children who are abducted are boys. 5 However, the majority of parents who abduct their children are male. In addition, parents who are involved in cross-cultural marriages are likely to be involved in child abduction. Research has shown that 48% of parents who are involved in parental abduction differ in terms of race or ethnicities or even nationality. The majority of parental abduction occurs when partners are engaged in relationship conflict such as divorce and separation.
Parental abduction has a lot impact on children. According to the study that was conducted by David Finkelhor et al in a telephone survey, about 16% of abducted children go through emotional harm while 4% are physically abused. There are some abducted children who suffer sexual abuse. Abducted children also suffer a lot of depression, anxiety, nightmares, and social interaction problems. At the same time, the left-behind parents experience feelings of loss and range. Left-behind parents also undergo a lot of psychological problems such as loneliness and psychological disturbance. Therefore, parental abduction affects both children and left-behind parents.
Problem of Parental Abduction in US
Parental abduction is one of the social and legal problems facing the US society, especially due to lack of clear laws and right mechanism to address the issue. The problem starts with the general perception that children who have been abducted by their parents are not at risk of any harm, particularly when they are in the physical custody of one of the parents. Consequently, a number of concerned authorities, including law enforcement systems perceive parental abduction to be civil in nature. At the same time, some law enforcement personnel and agencies, including criminal justice system, sometimes view parental abduction as a private family issue that is best addressed outside the criminal justice system. Therefore, the perception that parental abduction is not a criminal offense has been the main reason why the issue is still a problem in USA.
The fight against parental abduction has been faced with a number of challenges, especially due lack of clear legal framework to address the problem. The problem started way back when courts were trying to solve parental abduction cases. Specifically, child abduction became a problem in the US because state courts did not give full faith and credit to custody orders emanating from other states. The conflicting custody order that were given by different states made the parental abduction appeared as a petty crime and less hazardous, which, to some level, increased the number of children abducted by their children in the US. For instance, parents who were receiving unfavorable custody degree in one state were encouraged to move to another state where they were likely to receive favorable decree.
In order to reduce the interstate conflict with regard to giving custody decree, states adopted comity doctrine to minimize the fluid nature of the conflict. 6 Nevertheless, the comity doctrine did not help in solving the parental abduction problem because states were not uniformly applying the doctrine. The problem of using comity doctrine intensified when the Supreme Court declined to determine whether child custody orders could be subjected to full faith and credit under the United States Constitution.
Failure of the Supreme Court to provide workable guideline to fight parental abduction led to the formulation and passage of Uniform Child Custody Jurisdiction Act (UCCJA). However, the Act also proved to be effective in solving the problems associated with parental abduction. UCCJA was criticized because it lacked effective sanction that could be used to enforce the law. In addition, the Act lacked clear means of locating abducting parent. Therefore, the problem of parental abduction in USA started in 1900s when there were no clear laws to address the criminal behavior that affected lives of abducted children, including left-behind parents.
Currently, the country is mainly relying on the Parental Kidnapping Prevention Act (PKPA) to reduce cases of parental adduction. PKPA is primarily aimed at enhancing cooperation and collaboration among states, especially in execution of custody and visitation orders. 7 At the same time, the Act as formulated to reduce the continuous interstate conflict and to discourage interstater abduction cases, which was common. Importantly, the Act makes it mandatory for the states to give full faith and credit to other states’ custody decree. The Act has also been effective in fighting parental abduction because it expands the Fugitive Felon Act, which can only be approved by the Attorney General. However, with the availability of PKPA, US still faces a number of challenges with regard to fighting parental abduction.
A number of obstacles hindering fight against parental abduction in US have been identified. Verification of custody orders, finding solutions to poor documentation, and handling custody orders that are based on different interpretations have been the main challenges facing law enforcement personnel and agencies in the US. At the same time, law enforcement agencies find it hard to collect enough evidence that can be used to convict abducting parent. 8 In many cases, abducting and left-behind parents give contradictory information to police and investigative agencies like FBI, making it hard to determine the truth and collect necessary evidence. In addition, the successful investigation and conviction of abducting parents heavily relies on the cooperation of law enforcement agencies of different jurisdictions. Therefore, law enforcement agencies in US find it hard to address parental abduction problem.
Criminal justice system also finds it hard to address the parental abduction cases. This is due the difficulties judges and lawyers face in interpreting the vague laws, especially regarding child custody. At the same time, there is still confusion on the roles of law enforcement agencies and prosecution when it comes to child abduction cases. Judges are less likely to cooperate when enforcing civil custody orders.
In addition, there is the problem of investigation and reporting parental abduction cases. According to the National Child Search Assistance Act that was passed in 1990, it is the law enforcement agencies that have the authority to take report and information of a missing child and enter it into the National Crime Information Center (NCIC). 9 However, many law enforcement agencies are reluctant to enter the name of a missing child in the NCIC, especially when there is no clear violation of the law. Besides, entering the missing child in the NCIC database is influenced by marital status of parents.
Therefore, lack of clear laws and willingness to enforce the existing ones are the main challenges facing the country with regarding to fighting parental abduction. Both law enforcement agencies and criminal justice system are reluctant in enforcing the existing laws, as they fight over jurisdiction and interpretation of laws. Consequently, the parental abduction cases are still rampant in US due to poor enforcement of existing laws and statutes in both state and federal levels.
Loopholes that Enhances Parental Abduction
The main loophole in the fight against parental abduction in the US is the variance in state laws and statutes with regard to what constitute parental abduction. Some states in the US define parental abduction as a felony while others describe it as misdemeanor. Therefore, in order to avoid harsh penalties, abducting parents may move to states with favorable parental abduction laws in order to evade harsh legal penalties or punishment. Consequently, due to low punishment, parents may be encouraged to engage in parental abduction. This legal loophole has led to an increase in parental abduction in the US.
The existing laws such as PKPA do not protect children of unmarried children against parental abduction. As a result, the non-marital children are more likely to be abducted by one of their parents. In rush to punish abducting parents and reduce parental abduction, legislature forgot or overlooked non-marital child who are subject to parental abduction. There are hardly laws protecting non-marital children from parental abduction. 10 A few states in the country have passed laws that gives mother legal custody of their non-marital children. Nevertheless, such legal protections can be overturned by a court of law. At the same time, such laws bring a lot of disputes in a relationship, as mothers can take advantages to abduct their children from their loving fathers if they are not married. 11
In addition, existing laws do not clearly define parental abduction. For instance, states find it hard to prosecute parents who have taken away children from their partners due to harsh treatment and abuses. Some of the left-behind parents are also too irresponsible to take care of their children, yet they claim that their children have been snatched from them. Therefore, lack of clear definition of what constitute a parental abduction encourages the behavior, as law enforcement agencies and courts find a lot of difficulties in handling such cases.
Specific Areas of Reforms
Criminal Courts and Prosecutors
A number of criminal court judges and prosecutors in the US have limited experience on how to handle parental abduction cases. At the same time, many prosecutors’ offices in the country lack specialized parental abduction units that can handle the problem. Therefore, the majority of cases are addressed by non-specialists or by many designated attorney who have no experience on such cases. In many states, the majority of parental abduction cases are handled by domestic violence or family crime units. Therefore, courts and prosecutors lack experience and resources to handle parental abduction cases.
Uniform Child-Custody Jurisdiction
The problem of full faith and credit is custody decree still exist despite the enacted of PKPA laws. 12 As a result, there is still a problem of interstate conflict when it comes to handling parental abduction cases. PKPA has not helped in solving some of the problems it targeted, especially because it is always confused with UCCJA. Therefore, it is not effective in ensuring that state do not modify custody decree given by other states. As a result, it is important to formulate laws that ensure uniform child-custody in all state jurisdictions in the US.
Increasing Parental Access to Legal Information
A significant number of parents in the US are not familiar with the custody and visitation laws. 13 For instance, many parents are not aware that they need to get custody orders in case they are moving to new location, especially when there is child-custody decree. At the same time, unwed parents are not aware that they should that they should obtain custody order. Therefore, lack of legal information and understanding make some parents to be accused of parental abduction, as they act on ignorance. Lack of access to legal information can lead to an increase in the unintended parental adduction cases.
Reforming the Enforcement of Child Custody Orders
The current laws make enforcement of custody orders time consuming and expensive for parents. Left-behind parents always find it hard to get back their children in the case where custody order has been obtained. At the same time, they are forced to hire two lawyers to represent him or her, especially in the case where the abducting parent has moved to a different state. In addition, filling enforcement is time-consuming. In many cases, left-behind parents know where their children are but they cannot get them back. 14
Solution Recommendations
The country should empower criminal court judges and prosecutors to handle parental abduction cases. There is need to retrain criminal justice personnel on how to deal with emerging parental abduction cases. At the same time, the country should make sure that each and every prosecution unit has specialized parental abduction unit in order to ensure successful prosecution of cases.
The US federal government should ensure that it has a uniform child-custody jurisdiction that cut across all states. Specifically, it should ensure effective and full implementation of t he Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) that already exists. The Act can effectively prevent interstate parental abduction and promote uniform jurisdiction in states in the country
Development of public education program that are aimed at promoting parental access to legal information as well as representation. The programs should be used to discuss relevant laws to parent, especially those involving child custody and visitation laws. At the same time, the programs should be used to educate parents of parental abduction crimes. The programs should increase public awareness on relevant laws. 15
The country should pass laws that allow district attorneys to enforce custody orders. The laws should give district attorneys the mandate to take necessary measures to locate and recover the abducted children. This lead to a reduction on the money and time spend by left-behind parents in recovering their abducted children. 16
Conclusion
Parental abduction is still common in USA due to lack of clear laws that can effectively be enforced by relevant agencies. Even though the country has enacted some of the laws like PKPA, effective enforcement of existing laws is still lacking in the country. Besides, criminal justice system and law enforcement agencies lack the required experience, expertise, and resources to enforce existing parental abduction laws. However, the country is making gradual progress in the fight against parental abduction, especially after the passage of the UCCJEA.
Bibliography
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Erickson, Nancy S. "The Parental Kidnapping Prevention Act: How Can Non-Marital Children Be Protected." Golden Gate UL Rev. 18 (2001): 529.
Ho, Keelikolani Lee. "The Need for Concentrated Jurisdiction in Handling Parental Child Abduction Cases in the United States." Santa Clara J. Int'l L. 14 (2016): 596.
Larry, Andrea J. "The Parental Kidnapping Prevention Act of 1980-An End to Child Snatching." J. Legis. 8 (1999): 357.
Sattler, Maryl. "The Problem of Parental Relocation: Closing the Loophole in the Law of International Child Abduction." Wash. & Lee L. Rev. 67 (2010): 1709.
