International child abduction

The term international child abduction is generally synonymous with international parental kidnapping, child snatching, and child stealing. However, the more precise legal usage of international child abduction originates in private international law and refers to the illegal removal of children from their home by an acquaintance or family member to a foreign country. In this context, 'illegal' is normally taken to mean 'in breach of custodial rights' and 'home' is defined as the child's habitual residence. As implied by the 'breach of custodial rights,' the phenomenon of international child abduction generally involves an illegal removal that creates a jurisdictional conflict of laws whereby multiple authorities and jurisdictions could conceivably arrive at seemingly reasonable and conflicting custodial decisions with geographically limited application. Such a result often strongly affects a child's access and connection to half their family and may cause the loss of their former language, culture, name and nationality, it violates numerous children's rights, and can cause severe psychological and emotional trauma to the child and family left behind. There is a common misconception that because the abductor in these cases is usually not a stranger the children are not in danger. The harmful consequences for children and families have been shown in several studies and child abduction has been characterized as a form of parental alienation and child abuse. Adding international dimensions to the detrimental effects of child abduction significantly increases the detrimental effects on children and families. The modern day ease of international travel and corollary increase in international marriages is leading to a rapid rise in the number of international child abductions. International child abduction occurs when one parent unlawfully takes (or retains) a minor child in a country other than the one the child has his/her habitual residence. If that country is a party to the Hague Convention on the Civil Aspects of International Child Abduction (applicable to children under 16), then the child will usually be returned to the country of origin. If there is a conflict of law between two countries, the guardian must follow the laws of the country where the child physically present. It is very common that a parent that has legal custody of the child in the country where the child physically present, is wanted for parental abduction in another country. In such cases the child cannot be removed from the country where the child physically present, before child custody ends at age 18, because otherwise the child will not be returned to the taking parent. This does not have any thing to do with children's rights or welfare, only parental rights. According to the law the left behind parent is legally the only victim if the child is not returned before child custody ends at age 18. What is today called 'parental kidnapping,' 'international child abduction,', 'parental child abduction' and 'parental child trafficking' has existed as long as different legal jurisdictions and international borders have—though often under different names. None of these names achieved the modern day broad acceptance of terms like international child abduction. Lacking a common set of terminology or specifically designed laws to address the, at the time, poorly defined problem, researchers on the history of cross-border child abduction must search for terms like 'custodial interference,' 'contempt of child custody orders,' 'legal kidnapping' or, in cases where children were viewed more as property than as individual subjects of rights, name variations on theft, child-maintenance debt and smuggling, among others. Lawmakers struggled to typify and discuss international child abduction and discussions at the Hague Conference on Private International Law noted that, what some were referring to with variations on 'legal kidnapping,' was an oxymoron since that which is legal cannot be kidnapping and that which is kidnapping cannot be legal. The response to these concerns was the coining of the term 'international child abduction.' The terms first prominent use was in the title of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The term is not, however, used anywhere in the actual text of the convention itself in preference of the more technical terms 'wrongful removal' or 'wrongful retention' which were better suited for describing the mechanics of the Convention's system. The use of the term is now widespread in international law. In all family law disputes a determination must be made as to which legal systems and laws should be applied to the dispute. This question becomes much more complicated when aspects, or parties, of the case occur in, or hail from, multiple legal jurisdictions. Today's international family law norms were heavily influenced by the concepts of domicile and nationality. In Europe these ideas were refined during the nineteenth century by Italian politician, Pasquale Mancini, who believed matters of personal status were to be governed by the nationality of the person. During the same period in the US and Latin America the prevailing principle was that jurisdiction over personal matters was determined by domicile which, in the Americas, was acquired immediately upon moving to a foreign jurisdiction even if neither citizenship nor nationality were acquired.