The 2nd Circuit Court of Appeals, in the case of U.S. v. Houtar, recently addressed the issue of whether the International Parental Kidnapping Crime Act (IPKCA) was unconstitutionally vague as applied against a father who had not actually abducted his children, but instead retained his children in Yemen after they had already lived there for several years. The parents were married in Yemen, moved to the U.S., had children, and then returned to Yemen with the children. They obtained a divorce in Yemen, and then returned to the U.S. separately, leaving the children with Mr. Houtar’s family in Yemen. In September 2016, Mr. Houtar’s ex-wife obtained a custody order from the Kings County Family Court, which ordered Mr. Houtar to bring the children back to the U.S. from Yemen. He defied the order, fled the U.S., and resumed living in Yemen with the children. The mother then went for three years without seeing the children. Mr. Houtar was charged with 2 counts of parental kidnapping under IPKCA, and passport fraud. He plead guilty to the charges, but appeals on the question of vagueness as IPKCA applied to him, given that the children had already been living abroad and he didn’t actually remove them from the U.S. and take them overseas.
A statute can be unconstitutionally vague if it: “either ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited,’ or is ‘so standardless that it authorizes or encourages seriously discriminatory enforcement.'” “To establish a violation of the IPKCA, the government must prove: (1) that the child had previously been in the United States; (2) that the defendant took the child from the United States to another country or kept the child from returning to the United States from another country; and (3) that the defendant acted with the intent to obstruct the lawful exercise of another person’s parental rights.” Unfortunately, Mr. Houtar’s argument fails. The statute does not require that the children have been in the United States immediately before their retention overseas, and it is clear that Mr. Houtar retained the children overseas, in violation of the NY custody order. In that this is a federal criminal suit, it does not address the fact that Yemen apparently issued the initial custody order, and whether the New York court had authority under the UCCJEA to modify that initial order.