Can you kidnap your own child? What if you are a divorced parent in a custody battle? The answer in India apparently is – yes, you can, and it’s legal.
I was reading this article on the Atlantic about how some parents in the US who are involved in custody battles kidnap their children from abroad. The article is disturbing at many levels, not least because most of the people involved are identified by their real names and apparently face no legal issues in the US because they haven’t broken any US laws.
And then I read this paragraph:
One morning in November of 2005, an engineer (who asked that his name and other identifying details not be used here because of pending legal issues) left his home in the Midwest for work, carrying the lunch his wife had packed for him. A few hours later, he picked up a voice mail from her saying that she had taken their 2-year-old daughter shopping and wouldnt be reachable for a while. Only that evening did he learn that shed fled to India. The engineer flew to Mumbai, hoping to reconcile. But the marriage seemed irretrievable. On his lawyers recommendation, he filed for divorce and custody after he returned to the U.S. in January. Ten months later, the engineer called Gus, who advised him to let the custody issue play out in the courts first. Shortly thereafter, the engineer won a default custody judgment in a court in his home state when his ex-wife didnt show up to contest it. At the end of 2006, he flew to Mumbai and met Gus. He returned home with his daughter days later. A kidnapping case is still pending against the engineer in Mumbai.
I started thinking about the plight of that woman – fleeing a bad marriage, presumably an abusive one (given the manner in which she fled), to what she considered the safe haven of India and her relatives. Only to find her daughter snatched away with no possibility of shared custody or even visiting her. It’s very sad that 2 year old is probably going to grow up never knowing her mother.
I wonder why that kidnapping case doesn’t result in an extradition. I also wonder why, in this age of speakerphones and Skype (which as far as I know some US courts do admit as testimony) why the woman had to be physically present in the US to fight her case (given the cost and possible visa issues involved).
Digging a bit deeper, it seems that International parental child abduction is much more prevalent than I had realized. The US State Dept. ’s website has a page that describes what to expect (and how the State Dept. can help) if the other parent abducts your child to India. Which brings us to the flip side of the story. What if you are the parent on the other side of the story ?
As the US State Dept.’s website helpfully explains – Parental child abduction is not a criminal offense in India.
India is not a signatory of the Hague Convention on the Civil Aspects of International Parental Abduction; therefore, left-behind parents must rely on other avenues to recover their children from India. Once a child has been abducted to India, remedies are very few. India does not consider international parental child abduction a crime, and the Indian courts rarely recognize U.S. custody orders, preferring to exert their own jurisdiction in rulings that tend to favor the parent who wants to keep the child in India. For these reasons, it is often very difficult for left-behind parents in the United States to obtain any access to a child who has been abducted to India. In the rare scenario that a case is resolved, it is usually due to an agreement between the parents, rather than the result of court orders or arrest warrants. The State Department can help by attempting welfare and whereabouts visits; however, these visits may only be conducted with the consent of the childs physical guardian.
You can see how such a law can work both ways – if parental abduction is not a crime in India, not only can ex-spouses abduct children to India, but they can also abduct them out of India. You don’t even need to be a non-resident Indian for this law to affect you. If a couple living in India is divorcing and one parent makes off with the kid(s), it seems to me there is not much the other parent can do.
I think we need to change Indian laws on parental abduction if we are to protect the rights of Indian citizens better.
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I have been reading stories like these in the press of late (in India). I think this is a modern affliction, because in traditional India I have not heard of this happening.
Yes, but divorce was a rarity back then, and women would live in abusive relationships because they really had no choice
But I suppose there would have been cases where the mother took the child back to her parents’ home?
Lekhni:
Interesting.
What’s even more interesting is if you compare the situation to other non-Hague signatories such as China and Japan, especially the latter. Meanwhile, most of the African/Central and West Asia countries are in the same boat as India.
Nita:
‘Traditional’ India? Child abduction amongst separated or divorced parents is quite prevalent – except that it mostly happens by the husband’s side…mard jaat and all that. It does get resolved easier, perhaps, but it does happen.
Yes, japan has a similar policy and I remember reading this story some time back of a US Dad who was jailed in Japan for trying to abduct his sons (he had won custody in the US). It’s a very similar story to the Indian one I mentioned. Here is a great article in Japan Times that talks about why the Japanese law on parental child abduction needs to be changed.
In the U.S. most international abductions are by the mother. It may be that the marriage is not going well, it may be that the foreigner is disillusioned with life in the U.S. or simply homesick. Many people have moved to a foreign land and decided they don’t like it. Unfortunately, when you have a child, one that was born and has established it’s life in a country, you just have to “suck it up” for the sake of the kid. It happens even within the country, that when things go wrong one parent wants to move far away, back where they came from, or to a state where the family lives. Sometimes thousands of miles away. It’s not difficult here to establish abuse, Just watch the cop shows on T.V. If abuse has occurred, then the best thing is to report it and seek help immediately.If your marriage is not what you’d hoped for in most countries and you separate, your child is still given the opportunity to know both his parents. If one parent abducts the child and keeps him in a country to which the other parent has no access, then the abuse to the child is deplorable. For a child to grow up thinking his father or mother abandoned him, or worse is dead, is child abuse. What happened to adults taking responsibility for making the choices they have made? Now it’s time to think of the child. Why make the child pay? It maybe “EASIER” to go home, but it’s not fair to the child to lose his connections with the other parent, because we want an easy fix for using poor judgment in making a decision on whom to marry or move so far from home. And, there are plenty of people who have left a marriage in just this way because they are cowards. They want everything to be easy. They don’t want any kind of restrictions on them about time spent for the child with the other parent, they just want to “cut ties” and move on without haggling, or confrontation. They selfishly take away their own child’s other parent and they will pay the price for that sooner or later, but the child will pay the price his whole life.
I wouldn’t agree that spouses have to “suck it up” if they are not happy in a marriage. Isn’t a child going to get scarred if he sees his parents fighting every day, worse if there is physical abuse involved too? But yes, ideally they should certainly work it out so that both parents can stay in touch with the child. Unfortunately, some relationships are apparently too toxic for such level-headed discussions.
I think you are making too many assumptions here. I am sure they must have had a bad marriage, but there’s no evidence that he abused her in any way – in fact to me, the reverse seems more likely. The ex-wife basically left the country with their daughter – it could be that she was getting back at him. So essentially she initiated the “kidnapping” – by taking their daughter out of the country without his knowledge. I cannot imagine how traumatic that must have been for the guy!
Also he came to Bombay later and then returned to the US with his daughter. It’s very hard to believe that he took the kid away forcefully – I am sure the kid went with him with her mother’s approval. Once he left, she must have filed a kidnapping lawsuit against him (continuing her attacks against him). This would be a far more plausible version in my opinion.
I understand that your blog focuses on feminist and women’s issues. But if you bend stories to suit your needs, you end up losing your credibility as a respected blogger.
Sure, it’s quite possible that your scenario of events happened. I agree that women can also be the abuser in a marriage. In this particular case, the husband had hired Gus and wanted him to kidnap his child even before he had won custody in the US (which would have been illegal and a criminal offense as per US law as well). To my mind, that points to an aggressive mentality, and surely he knew he would be breaking the law? Or did he just have a casual disregard for the law? Either way, his actions make me inclined to believe he was more likely to have been the abuser rather than the abused in his marriage. Of course, I’m just speculating, I could be completely wrong -who knows what the truth is
But that was the logic behind my thinking – no feminist ideology involved
Besides, irrespective of whoever the abuser was, the point is the child will never be able to grow up seeing both her parents. All that scenario really shows is why we need to change the laws of parental child abduction in India.
I meant to reply to this sub-thread but replied to the main thread instead. My bad!
Parental abduction from US/west of a child is usually by the mother, since in most Indian nuclear families in the US, the husband has job/financial ties while the wife has less/none of those. In many such cases, the husband has few options. If he files for custody in India, he can’t attend the hearings in India and the cases drag on. If he files for custody in the US, the estranged wife more often than not files criminal cases (IPC 498A, PWDVA 2005, 125 CrPC) against him and members of his family to bring him to his knees. She can even get his passport impounded and get him arrested. Such cases are too common to ignore.
Recently the Supreme Court took cognizance of the mala-fide acts of such a wife/mother. More details here:
http://www.ndtv.com/news/india/supreme_court_returns_nri_custody_case_to_america.php
http://economictimes.indiatimes.com/News/Politics/Nation/Indian-court-cant-settle-NRI-custody-dispute-SC/articleshow/5329231.cms
Another related case:
http://www.dnaindia.com/india/report_sc-asks-nri-woman-to-fight-child-custody-battle-in-england_1323147
http://www.indianexpress.com/news/nri-custody-battle-sc-raps-police-for-failing-to-trace-woman/534140/
Sure, but I wouldn’t say that all estranged wives return to India because of mala fide intentions (though I’m sure that happens). Look at it this way – if she is a wife on a dependent (H4) visa, she doesn’t have the money to hire an attorney to file a suit for custody, and she cannot live in the US after the divorce unless she finds work (and it’s not easy to find an employer willing to sponsor you for an H1 B visa ). Her best option is to return to India.
Lekhni: If the wife is not financially independent, and does not have money to hire attorneys etc, and then takes the child away to India, the child is effectively being used as a “bargaining chip”. It is not unusual in custody battles for the courts to order payment of costs of the other side as well as maintenance payments. I don’t see how the mother’s behaviour re the child is to be seen any different from or nobler than the father’s.
Okay, I did not read the external articles you linked to, so I don’t really know who Gus is (I assumed Gus was his attorney).
Again, I am not trying to blindly argue here, but parental behavior where their kids’ safety is concerned can be quite unpredictable. As a dad who has been unfairly separated from his daughter I can see how he chose to risk the illegal route just to be back with his daughter (kinda the equivalent of maternal love I guess).
My main point is that there is not enough data to pass judgement on the guy.
And when I think of the kid, I feel sorry for her. Whichever parent eventually gets her, she’ll always have the wrong idea that her other parent abandoned her. Cross country divorces are not conducive to parents sharing their kids’ times. Oh well. Maybe women’d learn not to blindly marry a guy just because he’s in the US on an H1 visa or a Green Card, specially when it’s an “arranged” marriage.
No, Gus was the agent he hired to kidnap his daughter
Hey, I’m really sorry about your situation – and yes, I can see how that would color your perception. But I’ve explained my thinking – it wasn’t because I thought that men are more lilkely to be in the wrong, but this guy’s actions were disquieting to me. Sure, I could be wrong, it’s just my opinion and I don’t know all the facts.
But I also wouldn’t say she married him only because he lived in the US
## As a dad who has been unfairly separated from his daughter I can see how he chose to risk the illegal route just to be back with his daughter ##
Okay, I need to clarify that sentence. I was not referring to myself there, I was talking about the guy in the article. I guess I should have written that as “Looking at that guy as a dad who has been…”
Sorry about the ambiguity.
## But I also wouldnt say she married him only because he lived in the US ##
Yeah it was mostly conjecture on my part. But a huge number of “arranged” marriages occur where a young woman ends up marrying a guy who lives abroad (US, UK, Canada, Australia the most popular countries). By principle, I am against the concept of arranged marriages in general, but this particular form of it where the girl marries a guy who only gets to India a few days before the wedding is simply abominable in my opinion. (getting off topic here now – I will wait for you or the Indian Home Maker to blog about arranged weddings before I throw in more thoughts on that).
Okay, I need to clarify that sentence. I was not referring to myself there, I was talking about the guy in the article. I guess I should have written that as Looking at that guy as a dad who has been
I’m so glad to hear that. I wouldn’t want anyone to be in that kind of situation
Your 2nd point goes into the whole issue of arranged marriages. People marry after just one or two meetings (even when both of them are living in India) and yes, I too cannot see myself doing that
But it seems to work for some, and anyway that, as you say, is a topic for another day.
Lekhni: I think your assumption that the marriage was abusive towards the wife is a bit unfair. If the father’s decision to get his child abducted is a sign of aggression, as you mention to someone in a reply above, what would you call the mother’s behaviour? Surely that is hardly the behaviour of a helpless victim but rather of a bold woman who decides something and goes ahead and does it! How do we know who is to blame? Gone are the days when men were oppressors and women were sufferers. Crime and violence statistics of various kinds show that women are fast catching up with men.
In a recent case I read about in India just last week, a judge ordered a couple to sort their custody issues in UK courts, because at the time of the start of the custody battle they were resident in the UK. It may not be precedent-setting in the USA but is definitely precedent-setting in India. See: http://news.bbc.co.uk/1/hi/world/south_asia/8407512.stm