U.S. law allows a left-behind parent whose child has been abducted to the United States to compel the abducting parent to repay all of the fees and expenses incurred in seeking the child's return. 22 U.S.C. §9007(b)(3). But there is no similar provision that clearly entitles a left-behind parent whose child has been abducted out of the United States to seek reimbursement from the abductor of the fees and expenses incurred in seeking the child's return to the United States.
There
is appears to be a split between the Ninth and Tenth Circuits as to whether
federal legislation that authorizes an award of restitution to a victim of criminal
offense can be used to recoup a left-behind’s parent’s legal expenses in cases
of international parental child abduction once the abductor has been found
guilty of international parental child kidnapping pursuant to the International
Parental Kidnapping Crime Act (the “IPKCA”) 18 U.S.C. §1204.
The
Victim and Witness Protection Act of 1982 authorizes a federal district court
to sentence a criminal defendant to pay restitution to a
victim of the offense to the extent of “expenses related to participation in
the investigation or prosecution of the offense.” 18 U.S.C. §3663(b)(4).
In
U.S. v. Cummings, 281 F.3d 1046 (9th Cir. 2002), the
defendant father was successfully prosecuted under the IPKCA for having abducted
his children from their home in the State of Washington to Germany. The left
behind mother brought a return action against the father in Germany under the
Hague Abduction Convention and an action in the State of Washington for
contempt of court for his violation of a custody order. The father was
sentenced to a term in jail and was required to pay the mother’s legal fees and
expenses in the two civil actions. The Ninth Circuit upheld the restitution
award, holding that the mother’s civil cases were not “wholly separate” from
the government’s prosecution of the father. This was supported by the fact
that, by initiating a case under the Hague Convention, the mother had followed
the procedure specifically described in the IPKCA as the preferred “option of
first choice” for a left-behind parent.
More
recently, however, the Tenth Circuit held in U.S. v. Mobley, 971 F.3d 1187
(10th Cir. 2020) that it would not follow Cummings. In Mobley, the
government prosecuted a mother under the IPKCA for her abduction of her children
from their home in Kansas to Russia. Once she was in Russia, she had filed there
for divorce and custody in Russia. The left-behind father had then sued for
divorce and custody in Kansas. The Russia court had given custody to the
mother, and the Kansas Court given custody to the father. The district court found
the mother guilty under the IPKCA and ordered restitution to the father of the
legal fees and expenses that he had incurred in connection with the two civil
cases.
On
appeal, the Tenth Circuit overturned the restitution award. It held that §3663 is
not satisfied by evidence that the expenses were incurred in proceedings that
were merely “related to” the criminal offence. Instead, the expenses must be “related
to participation in the investigation or prosecution of the offense or attendance
at proceedings related to the offense.” It held that the terms “investigation”,
“prosecution” and “proceedings” are limited to the government's investigation,
the government's criminal prosecution, and the criminal proceedings, in
accordance with the ruling of the U.S. Supreme Court in Lagos vs. U.S.,
138 S. Ct. 1684 (2018). There was no evidence that the government had directed
or sanctioned the father’s civil proceedings, and the mother's attempts to
secure children’s return “did not assist the government in its investigation or
of prosecution of the mother.”
It
remains to be seen whether Mobley will, in future cases, be successfully
distinguished on its facts. Specifically, it is possible that proof could be
elicited that the litigation efforts of a left-behind parent assisted the
governor's prosecution of an international parental kidnapping case. In such a
case, a restitution award might still be deemed appropriate. Even then,
restitution would be restricted to those few cases in which an abductor is
prosecuted under the IPKCA. Of course, recovery in any such case would be
extremely remote.