Mr. Leo James Chaplin, an American, met his wife, MDS, in the Philippines. The two moved to the USA, married, and had two children. They lived in Alaska and took vacations to the Philippines. In 2014, Chaplin “convinced MDS and their minor children… to accompany him to the Philippines, where he absconded with the children under false pretenses and hid them from MDS – or prevented her from seeing them – for more than four years.” Chaplin filed for divorce and custody in the Philippines. MDS filed for the same in Alaska. The Alaskan court ordered Chaplin to return the children, and he refused. MDS’s lawyer referred the case to the FBI, who pursued criminal charges against Chaplin under the International Parental Kidnapping Crime Act. Chaplin was arrested, extradited, and found guilty in a federal bench trial. He now appeals to the 9th Circuit, arguing that two elements of the crime were not sufficiently proved. He argued (1) that he “did not retain the children by denying MDS access to them in the Philippines, because he never prevented them from leaving the country, and (2) he did not intentionally ‘obstruct the lawful exercise of parental rights‘ by filing for custody before a Philippine court, because MDS could have done the same but chose not to.” The 9th Circuit disagreed with Chaplin, and affirmed the conviction in an unpublished opinion.
First, the parents differed on their definition of “retention.” The court found that “[t]he act of retention may be satisfied when a defendant passively declines to abide by lawful demands to return a child.” Chaplin’s retention must be done “with intent to obstruct the lawful exercise of parental rights.” The court found that this was, in fact, true in Mr. Chaplin’s case, in particular because the Alaskan court continued to order the children’s return, and he failed to comply each time.
The opinion then took a turn in a confusing way when discussing Mr. Chaplin’s second argument about parental rights. Most specifically, the 9th circuit refers to the trial court having used the Hague Abduction Convention “to determine which jurisdiction’s child-custody laws controlled.” It further refers to the Hague Convention as defining “parental rights by reference to the ‘law of the State in which the child was habitually resident immediately before the removal or retention’ – in this case, Alaska.” Chaplin argued that his custody suit in the Philippines contested Alaska’s jurisdiction over custody, and therefore the district court should not have looked to Alaska law to determine parental rights. First, and most importantly, the Hague Abduction Convention does not determine child-custody jurisdiction. The Hague Child Protection Convention does, but that is not yet ratified in the USA, and is therefore not the law in the USA. Second, and perhaps more obvious, is that while the Philippines acceded to the Hague Abduction Convention, the USA never accepted their accession. So, there should have been absolutely no reference to this particular treaty, at all, in this case. The Hague Abduction Convention is a civil remedy to returning an abducted child, and certain parameters must be proven by a Left Behind Parent, including that the LBP had a “right of custody” under the law of the habitual residence (which is presumably what this court was referring to). The treaty is irrelevant to this analysis. This lawsuit was a criminal suit brought under the International Parental Kidnapping Crime Act, which is entirely separate from the remedies and analysis in a Hague Abduction suit.
Ultimately, Chaplin argued that if he was retaining the children, he was doing so after he filed his lawsuit in the Philippines for custody. However, the indictment stated that he began his retention in November 2014, before the Philippines custody suit was filed. Therefore, the court defaulted to Alaskan “operation of law” which gives both parents equal rights to the child. Therefore, his retention constituted a criminal act, and his conviction is affirmed.