Monday, February 02, 2015

International Child Abduction to India – One Case among Many


Jeremy D. Morley
                                             www.international-divorce.com

 I have repeatedly opined, and I have frequently testified, that India is a safe haven for international child abduction. India has elected not to sign the Hague Abduction Convention and Indian courts generally do not enforce foreign custody orders.

In one extremely exceptional case, Arathi Bandi vs Bandi Jagadrakshaka Rao, (Sup. Ct. of India, 2013), the Supreme Court of India did ultimately issue a conditional order for the potential return of an abducted child to the United States. However, the order was issued five years after the abduction. Moreover, the Court provided any abducting parent with a road map as to how to accomplish an abduction more effectively than the abducting mother in that case.

In Bandi the parties were married in Atlanta, Georgia and relocated to Seattle, Washington where their child was born. In a custody case in Washington State, the mother was given residential custody of the child but her petition for relocation to India was denied. In violation of orders of the Washington court the mother took the child (then age 3) to India in August 2008 and retained the child there. The Washington court then modified the parenting plan so as to give custody to the father and a warrant for the mother’s arrest for custodial interference in the first degree was ultimately issued in Washington State.

The father promptly filed a case in the Andhra Pradesh High Court in India seeking the return of the child. An array of procedural matters, court hearings, changes of attorney, police involvements, excuses, family deaths and other events then transpired. Among other things, the mother brought criminal charges in India against the father under the notorious Section 498A of India’s Penal Code. One of the purposes of such a filing in an international child abduction case is to deter the left-behind father from entering India to recover an abducted child. All of these devices delayed the case until July 16, 2013 when a decision was issued by the Supreme Court of India that conditionally ordered the mother to return the child – then age 8 – to the United States.

In ultimately ordering the child’s return the Supreme Court stressed that because the mother had herself not initiated her own custody case in India there was no reason not to order the child’s return. However, in my experience the abductor usually starts such a case. And the India courts usually retain the case. It was most unusual in this case that the mother did not initiate a custody case.

Nonetheless, it took five years for the Indian courts to complete the case. The child was three years old when he was abducted and eight years old when the return order was ultimately issued.

Even then, however, the Indian courts imposed conditions that the father was required to fulfill before any return order was effective. The various conditions included the following:

                                                                    i.                        The father was required to obtain and pay for airline tickets for the return of both the mother and the child to Washington State;

                                                                  ii.                        The father was required to deposit the sum of US$5,000 in the mother’s name to enable her to engage an advocate in the United States;

                                                                iii.                        The father was required to provide “necessary arrangements” for the stay of the mother and child “in suitable accommodation in a locality according to her status prior to the dissolution of marriage for a period of three months on their landing in USA”;

                                                                iv.                        Prior to making any travel arrangements the father was required to “move the Court of Competent Jurisdiction in USA for withdrawal of the bailable warrants issued against the [mother] to enable her to attend the custody proceedings in the US Courts”; and

                                                                  v.                        Upon the bailable warrants having been withdrawn, the father was authorized to personally escort the mother and the child from India to the USA.

In fact the fourth condition was likely impossible for the father to accomplish since arrest warrants (apart from bench warrants) cannot be dismissed unless the United States Attorney or the District Attorney determines that it is in the public interest to do so. Accordingly, while the order invited further court proceedings in India because the conditions were not merely onerous but were unworkable.

Subsequently the father was required to move to hold the mother in contempt of court and on April 11, 2014 the Indian Supreme Court issued a further order which directed the wife to supply an attested copy of her and the child’s passports, since the mother’s failure to provide those documents had prevented the father from making any travel arrangements. The Supreme Court later listed the matter for yet another hearing “for directions” on July 15, 2014.

By that date about six years had elapsed since the child’s abduction.