There has been a rash of cases concerning parents who remove a child from the United States to India without the consent of the other parent and then refuse to return the child to this country.
India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.
The Convention is the fundamental international treaty that protects the rights of abducted children and serves to have them returned promptly to the country of their habitual residence. It has been adopted by more than 90 countries.
India's Law Commission expressly recommended that India should adopt the treaty but the Indian Law Ministry opposed it on the ground that it would hurt Indian parents who take their children to India.
Parents often have a grave misunderstanding of the serious nature of such parental child abduction. Many believe that simply because India is not yet a party to the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") the legal system can neither prevent nor cure a parent's unauthorized removal of a child from the United States to India. Such views are totally mistaken.
U.S. federal law makes kidnapping a crime even when it is committed by one of the child's parents. The International Parental Kidnapping Crime Act makes it a federal felony to remove a child under the age of 16 from the United States, or to retain a child outside the United States with the intent to obstruct the lawful exercise of parental rights.
In addition, every state recognizes that the abduction of a child by his or her parent is a serious crime, subject to penalties in excess of one year in prison.The International Parental Kidnapping Law has been used against Indian parents on many occasions.
For example, Dr. Fazal Raheman, who was convicted of the crime in the following circumstances: He had married his wife in India and moved with her to Massachusetts. They had two children. After a few years he apparently became concerned that his wife was becoming too "independent" and he "made threats" against her. He then took the children without her consent to his former home in Nagpur, India and refused to return them. His wife obtained an emergency custody order from a court in Massachusetts while the husband obtained a custody order in his favor from the Nagpur Family Court. The mother traveled to India to try to find her children and bring them home but her husband filed criminal charges against her in India and she fled to the United States without her children.
Dr. Raheman was then charged with the crime of international parental kidnapping. He was also charged with wire tapping since he had illegally tapped his wife's telephone and videotaped her. He was captured during a return trip to the United States and after trial he was convicted of both charges and was sentenced to three years' imprisonment, followed by three years of supervised release. He was ultimately released from prison on condition that he effect the return of his two children then 12 and 8 years of age to their mother in the United States.
However, Dr. Raheman then proceeded to provide false information to the Nagpur Family Court, which was found to have inhibited the likelihood that the children would be returned to the United States. As a result he was sentenced to a further year and a day in prison. The Nagpur court transferred custody of the children to Raheman's elderly mother in Nagpur and the mother had no contact with them except for sporadic visits.
Imposing the second sentence, the judge harshly criticized Raheman for stealing the children from their home in the U.S., and noted that Raheman had betrayed the trust of the country which had given him great benefits while he lived here.
Dr. Raheman appealed but a federal appellate court held that the International Parental Kidnapping Act was applicable to a father who took his children from the United States to India even though the pre-decree abduction was not illegal under state law. United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40 (1st Cir. 2004).
As a consequence, courts outside India should be extremely wary about allowing parents to take children for temporary visits to India over the objections of the other parents since there is a great likelihood that parents who wrongfully retain children in India will get away with their wrongful conduct scot-free in India.
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