International parental child abduction from the U.S. to India

March 28, 2008, News India-Times

By Jeremy D. Morley

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.

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 (IPKCA), 18 U.S.C. 1204, 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, Judge Patti B. Saris 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).

In a second case, Sanjay Sardana, a father of Indian descent, was convicted after a jury trial of taking his three-year old daughter to India with the intent to obstruct the lawful exercise of parental rights by the child's mother, his estranged wife, in violation of the International Parental Kidnapping Crime Act. The defendant appealed unsuccessfully to the United States Court of Appeals for the Second Circuit. Details of the case are at U.S. v. Sardana, 101 Fed. Appx. 851 (2d Cir. 2004).

Another recent case of great significance concerned a Syrian national who abducted his child to Syria. In that case the Tenth Circuit Court of Appeals upheld the imposition of the maximum sentence of 36 months against the abductor even though the sentence significantly exceeded the sentencing guidelines for the crime. The reason for the harsh sentence was that the father refused to bring his children back from Syria. USA v. Riadh Abdul Rahman Dallah, 192 Fed. Appx. 725 (10th Cir. 2006).

Some other relevant laws are:

§ The Extradition Treaties Interpretation Act of 1998, 18 U.S.C. 3181, which authorizes the United States to interpret extradition treaties that list "kidnapping" as including the offense of parental kidnapping;

§ The Fugitive Felon Act, 18 U.S.C. 1073, which enhances the ability of states to pursue abductors beyond state and national borders; permits the FBI to investigate cases that would otherwise be under state jurisdiction; and authorizes the use of Unlawful Flight to Avoid Prosecution (UFAP) warrants in family abduction cases; and

§ The Alien Exclusion Act, 8 U.S.C. (A)(9)(C)(I), which provides that any alien who, in violation of a custody order issued by a court in the United States, takes or retains a child out of the United States, may be excluded from the United States.

On many occasions parents of Indian origin have taken a child to India and have immediately sought favorable custody orders from the Indian courts. Usually such efforts will not be recognized in the United States and they may well be counterproductive. A U.S. court will not permit parents to evade U.S. jurisdiction by the subterfuge of a parent taking the child to another jurisdiction.

A recent example is the California case of In re Marriage of Sareen, 153 Cal.App.4th 371, 62 Cal.Rptr.3d 687 (Cal. App. Dist.3 06/21/2007). The parents were married in New Delhi and then moved to New York, where their daughter was born. They later went on vacation to Switzerland but when changing planes in Germany the husband insisted that they fly to India. Three days later the husband filed for divorce and custody in India, took his wife’s and the child’s passports, left his wife and child in India and flew back to New York. Eventually the wife was able to return to the United States with her child and settle in California. The California court ultimately ruled that it had jurisdiction of the case, not India, because the husband had taken the child to India by means of a subterfuge.

Nonetheless, for many reasons India is generally a safe haven for child abductors who stay in India and do not leave. This is firstly because India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and because no Indian legislation sets forth helpful law on this issue. Furthermore, the court system in India is extremely slow so that an abductor has ample time to create “facts on the ground” in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India.

The law in India was previously settled that foreign children taken by a parent to India without the consent of the other parent would normally be returned to their country of residence or nationality. However recent decisions of courts in India have changed that rule and have held that foreign custody orders are merely items to consider as part of an overall custody review. Thus in a decision dated March 3, 2006 the Bombay High Court at Goa refused to issue a writ of habeas corpus on behalf of a British mother from Ireland whose eight-year-old daughter had allegedly been abducted to Goa by the child’s American father. The High Court dismissed the mother’s application on the ground that normal custody hearings should be undertaken and completed in Goa. One case where a fair result was ultimately obtained was Gahun v. Gahun, the High Court of Delhi at New Delhi ruled in 2006 that it would not accept jurisdiction of an application for custody by a mother of Indian descent who had lived with her husband in Canada for 12 years, had then taken their daughter for a vacation in India and had refused to return her to Canada. 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.

Grave Risk of Harm and Hague Convention: Judge orders girl back to Australia

A Sheridan (Wyoming) woman who fled Australia with her young daughter a year ago must -- according to the rules of an international treaty -- return the child on April 8 to that country where her convicted rapist father is in jail, according to an order by Chief U.S. District Judge William Downes.

"To be absolutely clear, the Court is not discounting Respondent's (the mother's) allegations of rape or ignoring Petitioner's (the father's) constant pattern of extremely poor behavior," Downes wrote in the March 10 order. "Ordering the return (of the child) to Australia is the sad duty of this Court, but it is clearly required by law. If harm should come to (the child) and her mother because the Petitioner is lawless and indifferent to the orders of any judge, the fact that this Court obeyed the law will be cold comfort," Downes wrote after considering arguments at a Feb. 28 hearing by attorneys for Jill Maloy and Robert Charles Wilesmith. Downes also implored the Australian judicial system to ensure the child's and mother's safety.

Meanwhile, Maloy has filed an emergency motion to stay -- or stop -- the order to return the child, and soon will file a notice of appeal to the 10th U.S. Circuit Court of Appeals in Denver, her attorney Jeremy Morley of the International Family Law Office, based in New York, said Tuesday.

Wilesmith filed the petition to return the child on Oct. 24 through the Central Authority of Australia under the Hague Convention on the Civil Aspects of International Child Abduction, which requires courts to act quickly. Wilesmith is represented by attorney Todd Ingram of Clapp & Associates in Casper.

This unique and troubling case, Morley said, highlights a stark problem with the Hague Convention. The United States, as a signer of the treaty, is obligated to honor quickly such requests to return abducted children as other countries would be obligated to honor a request from the United States. Custodial rights are the responsibility of the country from where the child was removed, according to the Hague Convention's Web site, www.hcch.net.

But the treaty allows countries to refuse the request under two narrow exceptions: If the parent opposing the child's return can prove the other parent was not exercising custody rights, or "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

The case centers on the nature of "grave risk," according to attorneys for both parents. That risk is obvious, wrote Morley and Maloy's Sheridan attorneys, Jonathan and Rene Botten. Wilesmith, they wrote, has been convicted of multiple crimes: three counts of rape and one count of unlawfully depriving a person of personal liberty, illegal possession of brass knuckles and a pistol crossbow, assault, violent juvenile offenses in the 1980s, current incarceration because of violating a stalking order, attempted hiring of hit men to kill his ex-wife and burn down her and her family's homes, road rage, and other offenses. Morley has seen difficult cases before, but never like this, he said. "What struck me is the judge expressed in extreme language the disgust of the father, yet he's nonetheless ordered the child to his (the father's) place of residence," Morley said. "I think it's outrageous." Morley's firm has handled hundreds of child abduction cases through the Hague Convention, which is a good treaty, he said. "But if it's applied too rigidly, it creates an injustice."

Both Morley and Ingram generally agree the girl's "habitual residence" was in Australia, according to court documents. Maloy stated in her affidavit she lived by herself in an apartment in Australia from December 2001 to April 2002, when she and Wilesmith lived together until December 2002. They returned to Sheridan in January 2003 to have the child, and he returned Australia 10 days later when he raped his ex-wife. Maloy returned to Australia in February. From late January to April 2003, Maloy lived alone while Wilesmith was in jail, according to Maloy's account of their relationship.

Wilesmith was out on bail from late April to early July, and lived with Maloy and their daughter. He returned to jail in July 2003 until mid-June 2006. After his release, they lived in RunawayBay on the Gold Coast in Queensland until she left Australia on April 27, 2007, after he raped Maloy earlier that month, according to court documents.

Both sides gave contradictory accounts of events, especially about whether Wilesmith gave her permission to leave the country with their daughter, when she decided to press rape charges, and how long she would stay in Australia after she returned the child to authorities. Like Morley, Ingram said he believes the case centers on the meaning of " grave risk." Proving grave risk requires "clear and convincing evidence," Ingram wrote.

At the Feb. 28 hearing, Ingram questioned Maloy's credibility about why she stayed so long with Wilesmith. But under cross-examination, Maloy told her attorney Rene Botten about her fear of him. Maloy offered accounts of Wilesmith's behavior including abusive treatment of her, but no direct evidence he hurt their daughter or will do so because he is currently in jail, according to the transcript. Eleven days later, Downes agreed.

"This is not a situation where a court is ordering a child returned to the custody of an abusive parent. Rather, this Court is ordering the child's return so an Australian court can make a determination regarding (the child's) custody," the judge wrote. "Petitioner's (Wilesmith's) abuse of his former wife and (Maloy), though absolutely abhorrent, does not put (the child) in grave risk of harm should she be ordered to return to Australia," Downes wrote.

By TOM MORTON Star-Tribune, Wednesday, March 19, 2008

Offshore Trusts and Divorce

The chief justice of the Cayman Islands, Mr Justice Smellie, has launched a staunch defence of trusts and has railed against what he described as the “entirely misguided” criticism of offshore trusts by onshore authorities. So reports legalweek.com.

This fuels expectations that there will be an unprecedented stand-off between offshore and onshore judges over the issue. In the landmark Charman v Charman divorce ruling, the English Court of Appeal ruled last year that assets in offshore trusts created by one spouse may be included in the "matrimonial pot" of assets that an English court in a divorce case should “fairly” divide. In that case the husband had created a discretionary family trust in Jersey for the purpose, he claimed, of benefiting his prospective heirs. He had then moved his business and himself to Bermuda, changed the jurisdiction of the trust from Jersey to Bermuda and appointed a Bermudan trust company trustee.

Ms. Charman now has an action pending in Bermuda to enforce the English judgment and compel the delivery to her of a portion of the trust assets.

In a number of similar cases involving Jersey trusts, Jersey’s Royal Court has sided with the English courts. But Justice Smellie’s speech has raised expectations that Caribbean offshore jurisdictions might now take a tougher line and refuse to follow the English practice.

India - Good News in an International Child Abduction Case

For more than three years, Deepa Topiwalla fell asleep every night wondering where her young son was. She doesn't have to wonder anymore. He sleeps in her bedroom in a small bed next to hers. After a court battle that took her halfway across the world, she has returned home to Cary with her son, and together they look forward to starting a new life.

This year marks a new chapter for them, after a tumultuous struggle that began in 2004 when Topiwalla was granted primary custody of Mihir, then 2, in Wake County Family Court. During a weekend visitation, the boy's father kidnapped him and fled to India.

Topiwalla hired a private detective in India but had no idea where to begin her search. A native of Tanzania, she had only twice visited India, which is about one-third the size of the U.S. and has a population of more than 1 billion. To complicate matters, “I was told that even if I go there, if I find out where my son is, Americans won't be able to do anything because India does not follow American laws,” Topiwalla said. Because India is not a member of the Hague Convention on the Civil Aspects of International Child Abduction, U.S. court orders aren't automatically enforceable there, Chester said.

Last June, on a trip to India to visit her dying father who traveled to India for treatment, Topiwalla began her search again. With help from relatives, she hired an Indian lawyer and issued a public plea for help in the local newspapers and television stations, showing an old photo of Mihir and asking for any information on his whereabouts. That call for help led to a tip -- and authorities were able to track down her son. But her battle wasn't over. Attorneys warned Topiwalla that she could face years of custody litigation, and “based on what we were hearing from the (U.S.) Department of State, the chances of Deepa ever getting the child back were really slim,” Chester said.

She persuaded an Indian court to grant her emergency custody of Mihir. After a hearing, the Indian judge decided to honor the American custody order, and last October, Topiwalla brought her son home to the U.S.

Topiwalla now works at a local day care center -- a job she chose in the wake of her son's abduction. “I thought, 'If I cannot be with my son, I can be with other kids and experience what's going on in their lives every day,' " she said. “Because I was missing all that growing up with my own son, I thought, 'If I do this with another child, I will feel a little bit better.' “

Topiwalla's ex-husband faces federal parental kidnapping charges but has not been arrested, Chester said. To their knowledge, he has not returned to the United States.

Nearly $50,000 in court costs decimated Topiwalla’s savings. But rather than focus on the past, she is determined to look forward. “I hope to have a good future with my son. I want to give him the best education you can have and do everything possible for him, so he can grow up to be a good person," she said. "It's huge for me to get my life back because my son is everything to me.”

© Copyright 2008, The News & Observer Publishing Company. By Cara Bonnett, Correspondent, News Observer