Imagine this situation. The taking parent is the child’s mother. The child is very young. The mother has returned with the child to her country of origin, a country with which the Hague Abduction Convention is not in force and where parental child abduction may not even constitute a criminal offense in comparable circumstances.
The left-behind parent understandably wants every available mechanism deployed. He reports the abduction and pursues criminal action in the United States. But what happens next?
Aside from the criminal action, suppose that, after considerable hardship, the father finally reaches the stage where a foreign court, in a civil proceeding, is asked to order the child’s return to the United States. If returning the child effectively means that the mother could face arrest or criminal prosecution upon returning to the child’s country of habitual residence, the United States, the criminal action may suddenly become the core of the problem rather than its solution.
Could the foreign court hesitate to order return?
Could it seek assurances that the mother will not be arrested?
And if the left-behind parent, recognizing the problem, then changes his mind, can he simply withdraw the criminal complaint?
What Criminal Action Can Mean in the United States
International parental child abduction can trigger not only civil proceedings for the child’s return, but potentially serious criminal, immigration, passport, and extradition consequences.
Several federal statutes may become relevant when a child is wrongfully removed from the United States or retained abroad.
The International Child Abduction Remedies Act (ICARA), 22 U.S.C. § 9001 et seq., implements the Hague Convention on the Civil Aspects of International Child Abduction in the United States. It permits proceedings in state or federal court seeking the prompt return of a child wrongfully removed to or retained in another Hague Convention country. ICARA and the Hague Convention are fundamentally civil return mechanisms, however, not criminal prosecutions.
Separate from the Hague framework is the International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. § 1204. IPKCA makes it a federal crime to remove a child from the United States, attempt to do so, or retain a child outside the United States with the intent to obstruct another person’s lawful exercise of parental rights. A violation may result in a fine, imprisonment for up to three years, or both, subject to the statutory defenses.
Other federal laws may also come into play.
The Fugitive Felon Act, 18 U.S.C. § 1073, can permit federal involvement where an alleged parental kidnapper crosses state or national boundaries to avoid prosecution, including through an Unlawful Flight to Avoid Prosecution warrant.
The Extradition Treaties Interpretation Act of 1988 provides for certain U.S. extradition treaties referring to “kidnapping” to be interpreted as encompassing parental kidnapping, potentially making extradition another component of the criminal process.
Passport law also provides preventive safeguards. Section 236 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 introduced requirements intended to prevent one parent from unilaterally obtaining a U.S. passport for a minor child. Passport controls, however, have limitations where a child is a dual national and may be eligible for a passport issued by another country.
Finally, the Immigration and Nationality Act (INA) may create immigration consequences for certain non-U.S.-citizen abductors—and, in some circumstances, those who assist them—who take or retain a child outside the United States in violation of a U.S. custody order. Depending upon the circumstances and applicable statutory exceptions, inadmissibility to the United States can therefore become another significant source of leverage.
When the Leverage Becomes the Problem
The difficulty is that international child abduction cases do not operate within one legal system.
The United States may regard particular conduct as criminal while the country in which the child is located views the same family situation very differently. That becomes particularly significant where the taking parent is the primary caregiver of a very young child and her return with the child could expose her to immediate arrest or prosecution.
Nor is the issue necessarily confined to non-Hague countries.
Even in Hague Convention proceedings, the consequences awaiting a taking parent upon return can become relevant to the practical mechanics of returning the child. Courts may be asked to consider undertakings, assurances, or other arrangements intended to make the child’s return practically possible.
This creates a genuine strategic paradox:
Criminal proceedings may create powerful leverage against an abducting parent. But in some cases, that same leverage can eventually become an obstacle to obtaining the very result the left-behind parent wants: the child’s return.
So the analysis should not end with: Can criminal charges be brought?
It should also ask:
When should criminal remedies be invoked? What effect might they have upon civil return proceedings abroad? Could an arrest warrant make the taking parent unwilling, or practically unable, to accompany the child back? Could a foreign court seek assurances concerning arrest or prosecution before ordering return? And, critically, once the machinery of criminal prosecution has been set in motion, does the left-behind parent actually have the power to stop it?
That last question deserves particular attention.
A criminal prosecution belongs to the government, not to the complaining parent. A parent who reports an international abduction may therefore discover that he or she cannot simply “withdraw the charges” later because the strategic landscape has changed.
International parental child abduction cases can involve several legal regimes operating simultaneously: criminal law, immigration law, custody law, the Hague Convention where applicable, and the domestic law of the country in which the child is located.
Criminal intervention should therefore not necessarily be treated as an automatic companion to a return case.
Sometimes it may be indispensable. Sometimes it may provide precisely the leverage needed to secure a child’s return.
But sometimes, the question is not whether you can press the criminal button, but whether, once pressed, you can ever unpress it.