Questions about any criminal charges against abductors

[phillyone]

Does anybody know if any criminal charges can be raised against any parent that abducts a child to another country without the permission of a left  behind parent?
 
I just feel that abducting a child and taking him/her out of the country of habitual residence is a serious crime and should be punished to the full extent of the law. All the parents that have abducted the kids mentioned on this website should be caught and brought back to the US to face charges.
 
If a murderer had committed his/her killing and left the country, the US authorities would hunt them down, extradite them to the US and fully prosecute them to the nth degree.
 
Why should abducting a child be any different?
 
Bruna obvioulsy knew she did wrong when she pleaded with David not to go to the police and file criminal charges. Shouldn't her parents (the Bianchi's) and JPlS be accountable for aiding and abetting and hiding a child? Shouldn't JPLS be debarred of practicing law? Shouldn't JPLS be arrrested for hindering a court order when Sean was supposed to visit with David?
 
Or are the Bianchi's and JPLS going to get away with this crime ?
 
Any thoughts on this?:conf:

[JonathanR]

it's been mentioned here before that the subjects of hague convention cases do face civil libaility - abductors, according to the treaty, are at least responsible for the legal costs incurred by the parent (david). i doubt david's finances will be further dicussed here, understandably, but i think everybody hopes that they will get taken to the cleaners!!

[phillyone]

Thanks for responding Jonathan. I understand that according to the Hague treaty the kidnappers are responsible for the financial debt .. but what about criminal charges (jail time). I certainly hope the brazilian family does get taken to the cleaners and fall from grace!

[André Felipe]

It depends on the circunstances of each case.
In Brazil, I see difficulties on classifying Bruna's actions as crime of kidnapping, according to the brazilian criminal law. The crime of kidnapping is related to the restriction of the victim's locomotion, easily visualized when we imagine a person locked inside a small and dark room, awaiting for the payment of the ransom, unable to leave the room.
 
Bruna took Sean to Brasil. Although he didn't have his father presence, except for that, he was having a "normal" life, going to school, to the park, cinema, beach, playing with friends, doing sports, etc. He could go to anywhere, except to USA, of course. Even so, I think it's very difficult to imagine a judge that would classify all of this as a crime of kidnapping. But maybe there's a judge somewhere that believes it's a kidnapping crime.
Course I think that not having a father is not normal. I mean "normal" because he was not in a similar situation that the person I mentioned above, locked in a small and dark room.
 
Also the Hague Convention is about the Civil Aspects of the international child abduction. It can not be used to file criminal charges against the "abductor" parent. If a country wants to do that, it needs to use another legal document, it needs to create a criminal law/act, in order to prosecute the parent, or use an existing one. Note that unlawful does not necessarily mean crime. The crime is a kind of illicit, it's the worst kind of illicit, which is punished with jail (in some countries, also with the death penalty).
 
And, I bet that +90% of the Familiy/International Law experts envolved on the creation of the Convention, and the others law experts around the world, and considering that the parent did not comitted other unlawful conduct except the wrong remmoval of the child, would think that applying Criminal Law in these cases is not a good solution.
 
Remember, all of this, the Hague Convention and the internal laws of each country are based on the best interests of the child, and having one of the parents locked in jail is not on the best interest of the child. The judges would consider it a Family Law issue, and not a Criminal Law issue. The best solution is solving the case, in order to maintain the presence of both parents in the child's life. We can also imagine a situation where the only thing that prevents an "abductor" parent to return with the child to the child's previous habitual residence is the threat of being arrested.
 
I think that Criminal Law should be applied in very especific situations, and not be considered as a rule over Hague cases.

[KarlHindle]

Criminal warrants are a tricky and thorny subject.

Some jurisdictions will not order a return of a child if there are criminal warrants outstanding - the issue seems to revolve around LBP's either take a civil route (the Hague) or pursue a criminal route - not both.

Articles 7 & 21 of the Hague operate, notably that,

"...The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights."

Slapping an abductor in jail breaches the Hague in this context.

Following a criminal path is fraught - first of all the LBP has no control over the proceedings as criminal prosecutions are by the state unlike the civil process which is mounted by the LBP.  Second, some countries will not extradite their citizens, in many instances the US will not ask for extradition even when they will, in some cases and depending on the state involved, no extradition will be considered even when there is a treaty obligation (the UK does not consider the criminal courts of Mississippi as fit for purpose for instance) and by now I think you are getting the picture.

I'm torn on the subject - part of me believes abductors should be severely punished because punishment is appropriate as well as sending out a deterrence message, but then again, if the threat of retribution risks not getting a child back home at all, is that too high a price to pay?

[JonathanR]

Thanks for responding Jonathan. I understand that according to the Hague treaty the kidnappers are responsible for the financial debt .. but what about criminal charges (jail time). I certainly hope the brazilian family does get taken to the cleaners and fall from grace!

i have no legal background so i couldn't say for sure. however.....i think *criminal* charges might be a stretch, only because they would be brought by an american on american soil against foreigners in another country. brazil would have to have an extradition treaty in order for them to be tried in an american court. and david, as an american, probably couldn't compel a brazilian court to try them in brazil.
 
again, i don't want to spout off too much because legally i don't know anymore than the next person. but nevertheless, that would be my guess.

[luvthelake]

I am not a LBP but last I knew kidnapping was a felony no matter where it happens. My husband was arrested for interstate interference with custody when the mother left the child with us on our non visitation time so she could go party. After 5 days when she came back she had the charges filed and they came to our home and arrested him. The child lived in another state and she had brought him to our house. My husband called from jail and my then 4 year old step son asked his daddy if he was bagging a metal cup on the bars. I am just so happy the child is nineteen and we do not have to deal with her anymore:)

[JonathanR]

I am not a LBP but last I knew kidnapping was a felony no matter where it happens. My husband was arrested for interstate interference with custody when the mother left the child with us on our non visitation time so she could go party. After 5 days when she came back she had the charges filed and they came to our home and arrested him. The child lived in another state and she had brought him to our house. My husband called from jail and my then 4 year old step son asked his daddy if he was bagging a metal cup on the bars. I am just so happy the child is nineteen and we do not have to deal with her anymore:)

that's HORRIBLE!! why would she pull a stunt like that?!!

[luvthelake]

JonathanR
That was just one of hundreds of things we went thru with her.:mad2: We joined a Fathers Right Group in Atlanta to help me deal with our anger in the court system. I always believed she should had been charged for kidnapping my step son. Imagine spending years and thousands of dollars to get a peice of paper granting you joint custody and weekend visitation with your own child who you the Dad is paying child support and you drive three hours one way to exercise your visitation, you get there to his mothers house to pick him up and the mother says no you can't have him, even though you see him looking out of his window at his dad. We call the police to get a report of Denied Visitation made and all they can do is write your report and tell you to call your lawyer on Monday. We probley had at least 20 to 30 reports and the court system would not do nothing against her. But let a man do that and he could be in jail in a minute. Denied visitation to me is kidnapping because that is your legal time with your child and the child is being with held against their rights to be with both parents. Sorry so long but I feel:)

[JonathanR]

JonathanR
That was just one of hundreds of things we went thru with her.:mad2: We joined a Fathers Right Group in Atlanta to help me deal with our anger in the court system. I always believed she should had been charged for kidnapping my step son. Imagine spending years and thousands of dollars to get a peice of paper granting you joint custody and weekend visitation with your own child who you the Dad is paying child support and you drive three hours one way to exercise your visitation, you get there to his mothers house to pick him up and the mother says no you can't have him, even though you see him looking out of his window at his dad. We call the police to get a report of Denied Visitation made and all they can do is write your report and tell you to call your lawyer on Monday. We probley had at least 20 to 30 reports and the court system would not do nothing against her. But let a man do that and he could be in jail in a minute. Denied visitation to me is kidnapping because that is your legal time with your child and the child is being with held against their rights to be with both parents. Sorry so long but I feel:)

Good Lord what a NIGHTMARE!! I hope your stepson came to the realization on his own that his mother was a selfish, vindictive person.

[dhanika]

Does anybody know if any criminal charges can be raised against any parent that abducts a child to another country without the permission of a left behind parent?
 
I just feel that abducting a child and taking him/her out of the country of habitual residence is a serious crime and should be punished to the full extent of the law. All the parents that have abducted the kids mentioned on this website should be caught and brought back to the US to face charges.
 
If a murderer had committed his/her killing and left the country, the US authorities would hunt them down, extradite them to the US and fully prosecute them to the nth degree.
 
Why should abducting a child be any different?
 
Bruna obvioulsy knew she did wrong when she pleaded with David not to go to the police and file criminal charges. Shouldn't her parents (the Bianchi's) and JPlS be accountable for aiding and abetting and hiding a child? Shouldn't JPLS be debarred of practicing law? Shouldn't JPLS be arrrested for hindering a court order when Sean was supposed to visit with David?
 
Or are the Bianchi's and JPLS going to get away with this crime ?
 
Any thoughts on this?:conf:

I am currently involved in a hague case and have also proceeded to file criminal charges.  My case is listed here:  http://www.bringseanhome.org/athukorala.html
 
In the United States you have two levels at which criminal charges can be applied.  First at the state level, presumably the habitual residence of the child.  You have to check first there whether it is a crime to abduct a child.  In my case I had to testify (even after it was determined to be a crime) before a 23 member grand jury.
 
Second, at the federal level based on the International Parental Kidnapping Act of 1993 specifically addresses international parental abduction and is potentially 3 year felony.
 
A good place to read up more about this is the FBI's website: http://www.fbi.gov/hq/cid/cac/family.htm
 
 
There is a lot of debate about whether you should file a criminal complaint when a Hague Petition is pending.  In my case I went with both.  It is generally recommended not to file one if there is a chance the Hague Petition might work but who really knows?
 
A couple of things you might want to consider when you decide whether to proceed:
 
1.  Is there an extradition treaty with the other country?
2.  Is the crime an extraditable offense?  Here by definition a crime is an extraditable offense if its a crime in both countries.  If parental abduction is not a crime in the abducted to jurisdiction then there is very little chance of an extradition.  Some nations dont consider parental abduction a crime.
 
Hope this helps.

[phillyone]

Thank You all for this insight about criminal charges. I now undersatnd the Hague treaty was not meant to "harm" any parent .. just to bring the child back where he/she belongs. HOWEVER... There should be a painful slap in the wrist for the parent who has abducted the child to another country and that's what I'm looking for. I know the treaty is supposed to hold the abducting parent to all the legal costs. I imagine that would be painful for some , but I haven't seen that happening yet!
 
That needs to happen to deter a parent from abducting a child to another country. Ok, so the parent doesn't need to go to jail, but they need to pay for the consequences ! Until that has happened, there is nothing that's going to stop a parent from taking their child and running with them to another country because there is no "pain" for their wrong doings.
 
Let me know if I'm misinformed (I know you will).

[JonathanR]

I am currently involved in a hague case and have also proceeded to file criminal charges. My case is listed here: http://www.bringseanhome.org/athukorala.html
 
In the United States you have two levels at which criminal charges can be applied. First at the state level, presumably the habitual residence of the child. You have to check first there whether it is a crime to abduct a child. In my case I had to testify (even after it was determined to be a crime) before a 23 member grand jury.
 
Second, at the federal level based on the International Parental Kidnapping Act of 1993 specifically addresses international parental abduction and is potentially 3 year felony.
 
A good place to read up more about this is the FBI's website: http://www.fbi.gov/hq/cid/cac/family.htm
 
 
There is a lot of debate about whether you should file a criminal complaint when a Hague Petition is pending. In my case I went with both. It is generally recommended not to file one if there is a chance the Hague Petition might work but who really knows?
 
A couple of things you might want to consider when you decide whether to proceed:
 
1. Is there an extradition treaty with the other country?
2. Is the crime an extraditable offense? Here by definition a crime is an extraditable offense if its a crime in both countries. If parental abduction is not a crime in the abducted to jurisdiction then there is very little chance of an extradition. Some nations dont consider parental abduction a crime.
 
Hope this helps.

dhanika, looks i stand corrcted! i didn't know there could be a simultaneous criminal charge with a hague case. i wish you a great victory! :cheer:

[dhanika]

dhanika, looks i stand corrcted! i didn't know there could be a simultaneous criminal charge with a hague case. i wish you a great victory! :cheer:

There is only 1 accepted excuse under the law in the United States for parental kidnapping and that is a pattern of domestic violence.  In my case there has been no such pattern and in fact the only possible incident that might be considered domestic violence occurred in the Dominican Republic when I was on a scheduled visitation with my daughter.  My daughter's abductor struck me across the face and then attempted to bribe a witness to say that I assaulted her.