Can you kidnap your own child? What if you are a divorced parent in a custody battle? The answer in India apparently is – yes, you can, and it’s legal.
I was reading this article on the Atlantic about how some parents in the US who are involved in custody battles kidnap their children from abroad. The article is disturbing at many levels, not least because most of the people involved are identified by their real names and apparently face no legal issues in the US because they haven’t broken any US laws.
And then I read this paragraph:
One morning in November of 2005, an engineer (who asked that his name and other identifying details not be used here because of pending legal issues) left his home in the Midwest for work, carrying the lunch his wife had packed for him. A few hours later, he picked up a voice mail from her saying that she had taken their 2-year-old daughter shopping and wouldnt be reachable for a while. Only that evening did he learn that shed fled to India. The engineer flew to Mumbai, hoping to reconcile. But the marriage seemed irretrievable. On his lawyers recommendation, he filed for divorce and custody after he returned to the U.S. in January. Ten months later, the engineer called Gus, who advised him to let the custody issue play out in the courts first. Shortly thereafter, the engineer won a default custody judgment in a court in his home state when his ex-wife didnt show up to contest it. At the end of 2006, he flew to Mumbai and met Gus. He returned home with his daughter days later. A kidnapping case is still pending against the engineer in Mumbai.
I started thinking about the plight of that woman – fleeing a bad marriage, presumably an abusive one (given the manner in which she fled), to what she considered the safe haven of India and her relatives. Only to find her daughter snatched away with no possibility of shared custody or even visiting her. It’s very sad that 2 year old is probably going to grow up never knowing her mother.
I wonder why that kidnapping case doesn’t result in an extradition. I also wonder why, in this age of speakerphones and Skype (which as far as I know some US courts do admit as testimony) why the woman had to be physically present in the US to fight her case (given the cost and possible visa issues involved).
Digging a bit deeper, it seems that International parental child abduction is much more prevalent than I had realized. The US State Dept. ‘s website has a page that describes what to expect (and how the State Dept. can help) if the other parent abducts your child to India. Which brings us to the flip side of the story. What if you are the parent on the other side of the story ?
As the US State Dept.’s website helpfully explains – Parental child abduction is not a criminal offense in India.
India is not a signatory of the Hague Convention on the Civil Aspects of International Parental Abduction; therefore, left-behind parents must rely on other avenues to recover their children from India. Once a child has been abducted to India, remedies are very few. India does not consider international parental child abduction a crime, and the Indian courts rarely recognize U.S. custody orders, preferring to exert their own jurisdiction in rulings that tend to favor the parent who wants to keep the child in India. For these reasons, it is often very difficult for left-behind parents in the United States to obtain any access to a child who has been abducted to India. In the rare scenario that a case is resolved, it is usually due to an agreement between the parents, rather than the result of court orders or arrest warrants. The State Department can help by attempting welfare and whereabouts visits; however, these visits may only be conducted with the consent of the childs physical guardian.
You can see how such a law can work both ways – if parental abduction is not a crime in India, not only can ex-spouses abduct children to India, but they can also abduct them out of India. You don’t even need to be a non-resident Indian for this law to affect you. If a couple living in India is divorcing and one parent makes off with the kid(s), it seems to me there is not much the other parent can do.
I think we need to change Indian laws on parental abduction if we are to protect the rights of Indian citizens better.