On October 12, 2021, the Court addressed motions in limine filed by Defendants and the Government in a federal criminal case related to the kidnapping of minor children between Guatemala and the United States. You can read more about the case here. It is a fascinating read involving the Jewish religious community of Lev Tahor, child religious marriage, secreting children back and forth between different countries, and parental rights.
The October 12th opinion includes a discussion on a variety of points, but the most relevant to this Blog is the discussion about the International Parental Kidnapping Crime Act. IPKCA has three delineated defenses to the crime of abduction/kidnapping: (1) acting within the provisions of a valid court order, (2) fleeing a pattern of domestic violence, and (3) failure to return the child due to circumstances beyond their control. The court noted that the Defendants are planning to argue the second of these codified defenses. Defendants claim that the Mother who removed the children from Guatemala and brought them to New York, and her collaborators, “abused” the children. The Court clarified, based on U.S. v. Nixon in the 7th Circuit, that the defense is limited to a showing of physical abuse and the Defendants would be prohibited from adducing evidence of emotional, psychological, and financial abuse, out of concern that every “child-kidnapping prosecution” would then be a “replay of the child-custody proceedings, in which the defendant would try to relitigate the domestic-relations case by showing that he or she really should have received custody.”
Defendants have also argued that when they removed the children, the children left willingly. However, lack of force and consent of the Minors is not a cognizable defense to kidnapping under IPKCA, and therefore the Defendants are precluded from asserting it at trial.
Defendants further intend to argue that the Family Court in NY should not have granted the mother sole custody, and therefore she did not have parental rights that they violated under IPKCA. There is a question as to whether the Family Court had jurisdiction to issue the custody order it issued. One Defendant also argues that because he was “married” in a religious ceremony to one of the Children, that extinguishes or supersedes the custody order. But, the Defendants never sought to contest the custody order in the family court proceedings. There was never an appeal. Therefore, the order is to be obeyed, and cannot make the basis of an argument for the Defendants.
Finally, the Defendants argued that the Mother’s bad behavior in abducting the children from Guatemala excuses their behavior. But, the children’s father failed to meet his requirements to pursue a Hague Abduction Convention return suit, and therefore his suit was denied, with prejudice.