Case Update (18 Feb 2022): U.S. v. Patel; federal parental kidnapping and the need for clearly written custody orders
The Defendant in this criminal matter is the father of the minor child at issue. Pursuant to a NJ Family Court order from May 2017, the father had sole custody of the child. The mother had no delineated access schedule (only access "as agreed by the parties"). In July 2017, the father and son moved to India. The mother sought criminal charges through the U.S. Attorney's office against the father. She claimed that she thought the move was only a brief trip for establishing the child's legal rights to property in India, and that the father and son were returning within weeks. In September 2018, the mother petitioned the NJ court for joint custody. In November 2018, the father petitioned the local court in India for sole custody. On October 16, 2018, the NJ family court entered an order directing the father "to return the child to the United States immediately." It did not grant the mother's visitation and custody petition.
The father allegedly received notice of the NJ court's October 16, 2018 return order by email from the mother on October 19, 2018. On September 27, 2019, the U.S. Attorney's Office presented a criminal complaint against the father, charging him with one count of violating the International Parental Kidnapping Crime Act. On July 22, 2020, a grand jury charged the father in a one-count Indictment. On October 2, 2020, the father was arrested in London on a provisional arrest request. His extradition was delayed when the mother filed a "without notice" application under the Hague Abduction Convention. Father therefore remained in the custody of the London authorities and the child was a ward of the High Court of London and placed with a foster family.
The mother sought custody in NJ again, and a separate case was opened in the Family Division of the London High Court. The High Court found the mother to be deliberately lying and fabricating a case of abduction to secure a green card. It denied her Hague Abduction return request and temporarily sent the child to India to be in his paternal grandparents' custody pending reunification with his father. The father, however, was extradited to the United States.
The father sought to dismiss the indictment. The indictment alleged that the father violated IPKCA when he failed to obey the NJ return order. The father argued that the return order had no delineated parental rights for the mother, nor could the government prove she had any. She had no custody rights, and her visitation was vague, at best.
"[T]his Court holds that under IPKCA, the term "visiting rights" must mean those rights that are concrete and specifically defined in a court order or a legally binding agreement between the parents established prior to the initial act of unlawful removal or retention that has continued." "The visiting rights must be clearly and with certainty spelled out (in a family court order or legally binding agreement as required by [IPKCA])." The indictment should be dismissed.