Pressing Criminal Charges
International parental child abduction is crime in every State and the District of Columbia under specified circumstances. International parental child abduction is also a federal crime under the International Parental Kidnapping Crime Act (IPKCA).
Your Decision to Use Criminal Charges
Your decision about whether to pursue criminal charges against the taking parent is a difficult one that should be made through consultation with your legal representative and in consideration of its potential impact on other aspects of your efforts to secure your child’s return. The Office of Children’s Issues can provide information about U.S. laws that make parental abduction a crime, resources for how to pursue a criminal warrant, and observations about some of the potential consequences of such an action based on knowledge of the laws and/or practices in the country to which your child has been abducted. We cannot, however, recommend a specific course of action or guarantee a specific outcome.
Depending on the circumstances, criminal charges filed against the taking parent can either help or hinder the successful return of your child. Therefore, it is important to weigh the pros and cons carefully and to obtain legal advice from an attorney before making the decision that you believe is best for your child. The purpose of a criminal warrant is to authorize law enforcement officials to apprehend and present the taking parent for prosecution. Your child is not subject to the warrant, which means that successful apprehension of the taking parent will not necessarily result in the return of your child. It can, however, serve as a negotiation tool since the taking parent may agree to voluntarily return the child in exchange for leniency or dropped charges.
The existence of criminal charges may also negatively impact a foreign court’s decision about whether to order or deny your child’s return under the Hague Abduction Convention. Although the Hague Abduction Convention pertains to children, not to their taking parents, in practice many judges are reluctant to order a return if the taking parent cannot accompany the child back to the United States. If the judge hearing the Hague Abduction Convention case is aware the taking parent faces arrest upon arrival, the judge may deny the return or order it only if the criminal charges are dropped. While you may request withdrawal of criminal charges against the taking parent, only the entity which issued the charges and/or a judge has the authority do so and may not agree to your request.
You will need to consider your goals and the implications criminal charges may have for you and your child. The prosecutor, the laws of the country where your child is located, and the taking parent’s behavior will all have an effect on how successful criminal charges are in securing your child’s return. Understanding these considerations may help you predict whether criminal charges can be an effective option for you and your child.
Pros and Cons of Pressing Criminal Charges
The process of filing criminal charges may help you locate your child.
A criminal charge will potentially facilitate cooperation from foreign law enforcement authorities by authorizing issuance of an INTERPOL red notice.
If the taking parent is a U.S. citizen, criminal warrants can serve as justification to revoke his or her passport, thus limiting subsequent international travel and potentially creating obstacles for his or her ability to remain legally in a foreign country.
Public awareness of the successful prosecution of a taking parent may deter others from abducting their children.
An outstanding criminal charge may deter a voluntary or negotiated return if a taking parent believes that he or she may be arrested when they return to the United States.
Criminal charges may adversely affect Hague return proceedings. Some judges may refuse to order a child’s return if there is a warrant for the taking parent’s arrest.
Criminal charges may encourage a taking parent to go deeper into hiding to avoid arrest. This is especially true when the taking parent has family or deep ties to the community.
The arrest, prosecution, and incarceration of the taking parent could be emotionally damaging for the child.
The goals of the criminal justice system to arrest a taking parent may be in conflict with your wishes, and once initiated, the prosecutor has control of any and all criminal proceedings. How these proceedings develop will be out of your hands.
Begin by Contacting Law Enforcement
When your child is missing you should immediately report the abduction to law enforcement. Law Enforcement should respond immediately, and enter your child into the National Crime Information Center (NCIC) Missing Person Database. The initial response from law enforcement could determine whether or not a child is quickly and safely recovered.
Entering your child into NCIC does not automatically initiate criminal proceedings against the taking parent. It is best to consult with an attorney before you decide to pursue criminal charges. Depending on your State laws, law enforcement may require that you have a custody order, before seeking criminal warrants.
HELPFUL HINT: We recommend that you keep a record of all your correspondence with all parties you interact with, including law enforcement. Note as well the names of the people you speak to, the dates and times of the conversations, and the information provided.
Your Local Police: Most international abductions are first reported to your local police. If they pursue warrants, your local police (in coordination with the local prosecutor) may seek issuance of a warrant based on your state’s criminal parental kidnapping laws. You may also want to arrange to meet with your local prosecutor’s office to understand law enforcement’s considerations for moving forward, and to advocate for your case.
The Federal Bureau of Investigation (FBI): You may also report your case directly to the FBI at the field office nearest your home. If possible, you should also consider meeting with the Assistant U.S. Attorney to discuss the possibility of pursuing federal criminal charges against the taking parent. The FBI may decide to treat the abduction as a felony under the International Parental Kidnapping Crime Act. Visit their website for more information.
HELPFUL HINT: Many law enforcement professionals have limited experience with parental child abduction cases and specifically, with procedures in international parental abduction cases. The Office of Children’s Issues can provide resources and communicate with law enforcement officials about the federal laws that will authorize them to assist you.
Coordinated Effort: Successful resolution of international parental child abduction cases through use of criminal charges required a coordinated effort among federal, state, and local law enforcement authorities. In some cases, U.S. law enforcement will also enlist the help of Interpol and foreign law enforcement authorities to carry out an investigation.
Foreign Police, Customs, and Laws: Be aware that parental abduction is not a crime in most countries, and this can hinder efforts to prosecute a taking parent. Other factors that may obstruct the process are local customs as they relate to religion, gender, nationality, and other factors.
Foreign Criminal Charges: You should always consult an attorney in the foreign country if you intend to pursue foreign criminal charges against the taking parent. In some countries, you may be able to pursue the prosecution of the taking parent by the authorities of the country where the child is found. In many countries, citizens can be prosecuted for crimes committed abroad if the act is a criminal offense under local law; however, parental abduction is rarely considered a crime outside of the United States.
Source: U.S. Department of State, Bureau of Consular Affairs