Most kidnapped children are taken by a parent. That doesn’t mean they’re safe

Most kidnapped children are taken by a parent. That doesn’t mean they’re safe

 

By Jane K. Stoever July 21
Jane K. Stoever is a clinical professor of law and director of the domestic violence clinic at University of California, Irvine School of Law.

When my client told me her abusive ex-boyfriend had shown up after a long absence, beaten her and kidnapped their children, I assumed the police would respond quickly and issue Amber alerts. But a D.C. police officer refused even to write a report, dismissing the complaint as a “private family matter” and opining, “What safer place for the children than with their dad?”
We were met with similar indifference from the child-abduction unit supervisor, who pondered, “Isn’t possession nine-tenths of the law?” (No, it’s not.)
The reaction of the judge in the family court’s domestic violence unit was equally alarming. She incorrectly questioned whether she had jurisdiction, now that the children were several states away. And when she learned that my client had declined her ex-boyfriend’s marriage proposal, and that he’d texted that if she wanted to see their children again she would agree to marry him, the judge said, “Aw, it sounds like he’s just heartbroken.”
Eventually, persuaded by my clinical law student’s recitation of the applicable law and by my client’s visible bruises, the judge entered a temporary protection order that awarded my client custody of the children. After several days on the road, the ex-boyfriend said he would return with the children if my client would not pursue criminal charges for abduction. She desperately wanted her children back home with her and readily agreed.

I was relieved — but also disheartened that the justice system seemed to care so little about the plight of these children who had been abducted by their abusive, estranged father.

(Asked by The Washington Post this past week about parental abductions, a D.C. police spokeswoman said that the department “treats each missing persons case with seriousness and utmost zeal. We use the press, social media and a variety of other avenues to locate missing children as quickly as possible.”)
On the other side of the country, when I began representing abuse survivors in California five years ago, I saw the same state refusal to respond to abductions committed by abusive parents. One client found our domestic violence law clinic after her abuser reported her to immigration authorities, fled with their infant and went to extreme lengths to hide. His actions violated multiple laws. Moreover, we had serious concerns about the baby’s safety — our client had been granted a domestic violence green card because of the life-threatening abuse she experienced from this man. Yet several police departments refused to take a police report on the kidnapping, even when presented with evidence of the man’s domestic violence convictions. I had to read aloud to a police chief the criminal-code section detailing how taking, withholding or concealing a child from someone who has a lawful right to the child is the definition of child abduction. Even with a police report, though, the district attorney’s office did not act.

The case haunted my students in the legal clinic, my co-teacher and me. “Have you found my baby yet?” our client asked every time we spoke with her. And so we continued to search for possible leads, hired private investigators, hung “missing child” posters throughout the region and engaged in a media campaign that, one year after the baby went missing, proved key to recovering her.
Our society fixates on “stranger danger.” Popular media portrays abductors as pedophiles, serial killers and other strangers who prey on children. Parental and societal fears are fueled by the well-known murders of Danielle van Dam, Adam Walsh, Polly Klaas, Samantha Runnion and Carlie Brucia, and the stories of Elizabeth Smart, Erica Pratt and Jaycee Dugard, who lived to tell of their kidnappings.
But contrary to the dominant narrative, nearly all child abductions are perpetrated by family members. Stranger abductions — certainly alarming and tragic — actually occur with “lightning-strike rarity,” as a report in the journal Criminal Justice Studies put it, in contrast to the more than 200,000 parental abductions committed each year that meet the criminal criteria and are not merely delayed visitations or misunderstandings.

That might seem reassuring, but it shouldn’t be. Abduction by a parent can pose significant risk to a child’s safety and well-being. And for the domestic violence survivor whose child is abducted, this is the ultimate form of abuse.
Parental abduction frequently is part of a larger dynamic of domestic violence. Most left-behind parents report that the abductor physically abused them, threatened their lives and threatened to kidnap the child before doing so. Particularly when the victimized parent seeks to end the relationship, abusive partners commit abduction as a way to exert control, fulfill a quest for revenge or hurt them. And it works. Left-behind victims report that the trauma of losing their children far exceeds any physical, sexual or mental abuse they experienced during the relationship.

Abusive abductors may also be motivated by a fear of losing custody or a desire to gain custody of a child. Because such scenarios are common, and parental abductions occur in families in discord, police often dismiss complaints as messy family situations, assume complainants are overreacting or think that parents are embellishing reports of parental abduction to further their own custody claims.

Domestic violence is also a motivating factor in a smaller number of abduction cases in which an abused parent seeks to safeguard a child from harm. Abuse survivors who flee with their children tend to do so when the courts and law enforcement have failed to provide needed protection.
As with stranger abduction, children kidnapped by their parents are often traumatized and harmed. Unsurprisingly, these children face greater physical danger when the abducting parent has a history of perpetrating domestic violence. A Justice Department study concluded that one-third of children abducted by a parent suffer serious sexual, physical or mental harm, with many more children experiencing other emotional and physical trauma. The abducting parent’s deception, which may involve adopting a fugitive lifestyle, creates its own set of problems. Children may be pulled out of school, denied medical attention, coached to lie and warned away from making friends. While some abducting parents return children on their own and some left-behind parents succeed in their self-initiated efforts, 20 percent of abducted children remain missing for more than a month, and some are never recovered.
These kidnappings can end tragically. In one prominent case, Simon Gonzales violated a restraining order and abducted his three daughters in Colorado in 1999. Their mother sought help from police seven times on the phone and twice in person in the hours that followed, but she was rebuffed with comments such as, “At least you know the children are with their father.” Gonzales went to a police station that night and opened fire. After a shootout, police found the bodies of the three girls inside his truck.
Despite the harms of parental abduction, and state and federal laws prohibiting parental kidnapping and custodial interference, these crimes are not typically viewed as requiring legal intervention. Police response and prosecution are rare.
The Justice Department reports that although an estimated 155,800 children are victims of “serious” parental abductions each year, only 30,500 police reports are officially registered, 9,200 cases are officially opened in prosecutors’ offices, an estimated 4,500 arrests for parental abduction are made, and 3,500 criminal complaints are filed. In a national survey of law enforcement offices, about half of the 17,000 responding offices said they always refuse to take a missing-child report for a parentally abducted child, instead viewing it as a private family issue or a matter for family court.
The failure to initiate investigations, take reports or obtain photographs is contrary to national guidelines recommending that police be immediately dispatched in response to all complaints of missing or abducted children. Police often instead misinform parents that the child has to be taken across state lines or be missing for a specified period of time before they can respond. Parental abductions most often occur during scheduled visitation with the non-custodial parent, so police instruct the left-behind parent to wait, presuming the issue will resolve itself. However, the first few hours are crucial for locating an abducted child, and any delay favors abductors.
The reluctance to intervene does not reflect legal gray areas. Although the 1932 Federal Kidnapping Act, which made abduction a federal offense, excluded parental abduction based on the presumption that parents always act out of concern for their children, numerous federal and state laws now address parental abduction. For instance, the 1990 National Child Search and Assistance Act prohibits law enforcement agencies from creating waiting periods before accepting a missing-child report, regardless of custody status. Congress went further with the International Parental Kidnapping Crime Act of 1993 and the Uniform Child Abduction Prevention Act of 2006. Current laws could be improved — especially at the state level, where some states require preexisting custody orders to act and others lack family violence defenses — but the failure to implement and enforce existing laws is the first hurdle.
So how can the failure of legal authorities to respond to parental abduction be explained? Although domestic violence is increasingly recognized as a serious crime, we still tend to be socialized to believe that danger lurks outside the home and that harm doesn’t often occur within a family. Violent crimes committed by strangers garner significantly more resources and attention, and are more likely to lead to arrests and prosecution, than identical crimes committed against family members or intimate partners.
At the same time, our society longs for parental engagement, especially by fathers. Judges tend to reward fathers who demonstrate interest in custody of their children — overlooking histories of domestic abuse.
Gendered and racialized intervention practices are also telling. The majority of parents who abduct their children, including abusive abductors, are white men . Yet women are more likely than men to be convicted and incarcerated for abduction-related offenses, even when they are fleeing to protect their children from family violence. Studies show that police and courts trivialize and distrust legal complaints from women but don’t apply the same skepticism to complaints from men.
And beyond the context of parental abduction, the state has shown itself to be more comfortable targeting, regulating and punitively intruding on families of color, especially poor ones, than it appears to be with white families. For example, poor parents of color are disproportionately incarcerated for not paying child support, which is pitched as a crime against the state. Low-income women of color who experience abuse are often charged with neglect for exposing their children to domestic violence or for living in conditions of poverty. Officials also increasingly arrest and prosecute abuse survivors who inflict defensive wounds, and they incarcerate victims who refuse to testify against their abusers.
Although state intervention is unwarranted and unwanted in some family matters, it is desperately needed to prevent and respond to abusive abductors.
Because histories of violence and kidnapping threats commonly precede parental abduction, family court judges could issue more restrictive visitation or custody orders to prevent kidnappings. Law enforcement, prosecutors and judges also need training on the many laws that facilitate abduction investigations, authorize protective court orders, and enforce and prosecute custodial interference or child abduction. And they need to be able to distinguish between the very different motives and situations of abusive abductors and survivor abductors. Exemptions or affirmative defenses for family violence victims also need to be available and used.
I woke up on Thursday to an email from a fellow West Coast lawyer who represents abuse survivors, seeking help recovering a child who was abducted by an abusive parent to the Midwest. The parent had fled their state with the child in violation of a domestic violence protection order, but, still, law enforcement officials refused to intervene because the child was with a parent.
These children, and the left-behind parents who desperately ask, “Have you found my baby yet?,” deserve the help of our justice system.

Twitter: @jane_stoever

Source:  “Most kidnapped children are taken by a parent.  That doesn’t mean they’re safe”, The Washington Post, 21 July 2017

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Japan signed abduction treaty but for ‘left-behind’ parents that doesn’t mean much

Japan signed abduction treaty but for ‘left-behind’ parents that doesn’t mean much

The Washington Post 

James Cook is a Minnesota man in a custody battle with the Japanese mother of his children. (James Cook,/Courtesy of James Cook)
James Cook wants his four children home in Minnesota. His estranged wife, Hitomi Arimitsu, says they want to stay with her in Japan. And so they have been going around in circles through the courts for almost three years.

If child custody battles are messy, expensive affairs when the parents live in the same country, they’re exponentially more so when the parents live in different countries and are fighting over where the children should live and which place should have jurisdiction.

Japan signed The Hague Abduction Convention, the treaty that governs international child abductions, in 2014 but is struggling to put its provisions into effect.

That is where the Cook family is caught.

“For three years of their lives, these kids have not had their dad. Kids need their dad, they need both their parents,” Cook said via Skype from his home in Minnesota. “I can’t describe to you the hell that this has been.”

Cook, who studied Japanese in college, and Arimitsu, a Japanese woman who attended a university in Minnesota, had lived in the United States for almost the whole time they had been together. But three years ago this week, with their marriage on the rocks, Cook agreed that Arimitsu could take their four children to Japan for the summer — with a notarized agreement that she would bring them back.

When that ended, they agreed that Arimitsu and the children would stay on a little longer, while Cook, who had lost his job, looked for work.

By the end of the year, Cook realized his family wasn’t coming back.

In the past two years, the pair has been going through acrimonious court battles in Osaka and in Minnesota, and each has won some and lost some rounds.

As is common in such cases, they have wildly different versions of events and focus on the rounds they’ve won.

Cook says an order in Minnesota last month, which found Arimitsu in contempt of court and upheld two orders from December that she return the four children to their father, should stand. In that case, the judge awarded Cook temporary sole legal and physical custody of the children.

But Arimitsu, through her lawyer Tomoko Kamikawa, said that because the Osaka High Court in February rejected Cook’s request to have the children returned, there is no valid return order under The Hague Convention. Cook has appealed this ruling to Japan’s Supreme Court.

The children do not want to return to the United States, Kamikawa said.

The crux of the problem, Cook and other “left-behind parents,” say, is that Japan — unlike other signatories — has no way of following through on its Hague commitments.

“Enforcement is one of the key problems,” said John Gomez, an American who heads the Kizuna Child-Parent Reunion group in Tokyo and is helping Cook. “Every country has to create implementation legislation to enforce their orders, but Japan basically cannot enforce their orders.”

The legislation that Japan passed to implement The Hague provision forbids the use of force, and stipulates that the children must be retrieved from the premises of the parent who has taken them. The “taking parent” must be present. The enforcement officers are basically bailiffs who are more used to repossessing washing machines than extracting children from emotionally charged situations.

This essentially means that enforcement involves an official at the gate calling for the children to come out, while the taking parent is inside with them.

“All of this was completely predictable,” said Colin Jones, a law professor at Doshisha University in Kyoto and an expert on child custody law in Japan. “Without dealing with enforcement methods, it was just a matter of time until a case like the Cook case happened.”

The U.S. government has expressed misgivings about Japan’s implementation of The Hague convention provisions. “The [State] Department is concerned about Japan’s ability to quickly and consistently enforce return orders,” it said in its 2017 annual report on international child abductions.

But the Japanese government says that it is making good progress.

“It’s been only three years since Japan entered into The Hague Convention,” said Hajime Ueda, director of The Hague Convention Division in the Foreign Ministry. “It takes time because every case is unique. From that point of view, we have been doing quite a good job.”

Eight children involved in five cases have been returned to the United States since Japan signed The Hague Convention, Ueda said.

The convention was a politically charged issue in Japan, with a substantial amount of opposition to signing it, so even becoming a signatory in 2014 was a major achievement. Experts note that it took other signatories some time to change domestic legislation to allow enforcement of The Hague Convention provisions; Germany, for instance, took about five years.

The U.S. Embassy in Tokyo is dealing with about 70 child abduction cases, 42 of them filed since Japan signed the convention, and 10 of those seeking the return of children to the United States.

The other cases just involve access — another thorny issue in Japan, where there is no concept of joint custody.

The prevailing wisdom in Japan says it is upsetting or disruptive for children to continue to see both parents after a marriage breaks down, so one parent — almost always the mother — gets full custody and the other parent usually has two hours’ access to the children each month.

“Visitation is the most problematic thing with Japan. A lot of cases about return orders are actually about access, about the noncustodial parent being able to maintain a relationship with their child,” said Jones of Doshisha University.

According to Gomez’s research, about 3 million children in Japan have lost access to one parent after divorce in the past 20 years – about 150,000 a year.

Children age out of the system at 16, so time is on the taking parent’s side, according to people involved in custody disputes.

And nothing will change for international custody cases until the domestic system that favors sole custody changes, experts say.

This is difficult because Japan has a family registry system, which operates as the foundation for all documentation. A person can be on only one family registry so after a divorce, children are usually removed from their father’s family registry and placed on their mother’s.

“The parent who becomes noncustodial loses all of their parental rights and effectively becomes a stranger to the child,” said Bruce Gherbetti, another “left-behind” parent who is advocating for change through the Kizuna group.

For now, that leaves Cook, who has found work with a medical device company, sitting in Minnesota, having no contact with his children.

“I’m sad we are in this mess and I’m concerned about my children,” he said. “This is the heartbreak of being a ‘left behind.’ ”

An earlier version of this article misspelled the name of Hitomi Arimitsu. The story has been updated.

 

Source:  “Japan signed abduction treaty but for ‘left behind parents’ that doesn’t mean much”, The Washington Post, 16 July 2017