If any one of the parent is planning to abduct, all he or she has to do is stay back in India and not return. Indian government and legal system will protect that abductor and help in this abduction.
So far there are more than 150 children who are US Citizens who have been abducted to India. These are just the registered number of cases with the US Department of State. If you include the unregistered cases that number increases by many folds. These numbers have been increasing significantly. Now add the children abducted from other countries. That number would be staggering.
You might doubt how India can decide on the matter as if that child was born in India when in fact that child is a US Citizen or citizen of another country and growing up. Think again. How about not only the child is a foreign born but one of the parent is foreign citizen, still the result is same. This is very true even if both parents and children are foreign citizens, India would like to hear the case and decide the custody and the results are never good.
It does not matter if the child is foreign born and lived there in its country before the abduction took place or this child is visiting India for a short time. It does not matter if the left behind parent has legal child custody by the court where the child was born and growing up. It does not matter if the court in the country where the child was abducted has issued orders to return the child.
If you are in a custody battle in the US court or country of your origin, please educate your judges, lawyers and police about the situation in India and request them not to send the child even on a temporary visit. Once sent they can not enforce the US custody terms. Request those courts to seize the passport of the child just like the way some parents have done to avoid their child being taken away.
Remember the abducting parent is that good in stealing your child that you will not have a clue most of the time. Watch out for signs such as family issues, conspiring and self interested by in-laws, better career opportunities, financial benefits, ex affairs etc.
Please understand yourself on why India is being called as a safe haven for child abduction. Here are some of India’s opinions and actions to such abductions compiled based on their many court verdicts.
1. India is not a party to the Hague convention. Which means it is not obligated to return the child to its original country unlike the countries that are bound to the Hague convention treaty.
2. Within India child abduction by a parent is not a crime. They extend the same opinions on children from other countries too although it is a crime in the country where abduction has occurred.
3. Indian Government and their court system do believe that once the child is in India, it is their obligation to hear such cases and decide the matter there. Almost all the time abducting parent will win let alone the lengthy, exhausting, costly, career affecting legal process that left behind parent would have to undergo.
4. Even in the presence of an existing court order from the country of origin, informing the abducting parent that he / she needs to return the child and a full custody has been awarded to left behind parent, India simply ignores those orders saying that those orders contributes to only part of their decision making. In order to appeal to Indian courts to return the child and the abducting parent to the original jurisdiction, left behind parent has to first locate the abductor and file a habeas corpus petition in that state’s high court. Such requests are made based on the private international law but only to find out that Indian courts do not honor such private international laws and grossly abuse rights of a child and the left behind parent.
5. Courts claim that the child is habituated in India far too long by the time when left behind parent has approached the court. They simply ignore many facts. First is the time taken to locate the abducting parent in hiding. Second is the time spent in finding a lawyer among very few who is aware of such international laws and ready to fight on your behalf. Finally the lengthy Indian legal process and delays. In the meanwhile abducting parent may file many frivolous cases just to delay the matter and those cases need to be decided by the lower courts first as well.
No matter what the left behind parent does, Indian courts will always find reasons to say no to return the child. Here are some of the questionable opinions expressed by Indian courts after hearing through habeas corpus petition filed by the left behind parent.
1. When the child was abducted, there was no existing court order in its country of origin preventing the travel and hence abducting parent has not committed any crime.
At least in US, it is a federal crime to take the child out of the country against the left behind parent’s wishes punishable up to three years. Individual states restrict moving a child. Indian courts even overlook abductions that occur while the custody matter is being decided by the original court. Child abduction is a crime in the country where it is committed. Only after the crime occurs can the criminal charges be filed
2. The foreign court order to return the child to its original country is not clear.
Although original court’s orders states that the child should be returned to the parent’s care, that parent has the full custody and the left behind parent still lives in the country from where the child was abducted.
3. Courts claim that foreign court orders are not served properly hence the abductor is not aware of the fact that he or should return the child.
In most of these cases abducting parent is clearly in hiding with a willful retention of the child. Examples are abductor keeps changing the addresses avoiding detection and accepting court legal papers, not reveal the location of the child, stops communication, threatens with frivolous cases in Indian courts. There is not legal process of serving through Indian courts.
4. Indian Courts say their decision to let the abducting parent stay back in India is based on best interest of the child.
Expert’s opinion is that courts that belong to original jurisdiction are in the best position to decide on the best interest of the child. How can Indian court look after the best interest of the child when that child is a foreign citizen and was growing up (habituated) in its country, no proven prior allegations disqualifying left behind parent in caring for the child. How is separating the child from the left behind parent is good for the child. How about the effects of alienation (separation) from the other parent, siblings, friends, school? How about stress of acclimatizing to new environment in a foreign land with a new language and culture? Last but least, abduction is a form of child abuse and is an extremely selfish act where abducting parent puts his / her interest first not the child.
5. India is not a party to the Hague convention hence they don’t have to send the child back to its original country.
Most of the advanced countries have become member to the Hague convention and understand why it is important to return the child to its original country when abduction occurs. This opinion of India questions its human rights abuse policy and competency among the rest of the advanced countries in the world.
6. Indian court asks left behind parent to address the frivolous complaints filed again in India by the abductor
Most of the time similar complaints were found to be false and baseless in the original country with clear court verdicts. Also Indian courts could direct the abductor to approach original courts. Because the abductor knows about India’s supports on child abduction, he or she is clearly engages in forum shopping. Indian courts do let this only to claim later that the child has been acclimatized in India.
7. They claim that welfare visitation report made by the US embassy shows that child is taken well care of.
Indian court use the welfare visit by the US embassy conducted based on left behind parents request as a proof that mother did show the child to them and child is well taken care of based on their own report.