Child Abductions, California Child Custody Law, and International Human Rights

Child abductions are clearly a very serious problem, locally and globally. Anybody driving up and down any of California’s major highways has likely seen the digital signs hanging over the road announcing specific child abductions in progress and providing identifying information about the car the alleged kidnapper is likely driving. Yet the number of such announcements is miniscule compared to how many child abductions the California Family Law Court system sees every day in child custody cases, where custodial or non-custodial parents run away with the children out of vengeance or fear of the other parent. Where the kidnapping parent provides allegations, be they evidenced or not, of domestic violence by the other parent, the child custody court will often allow the abducting parent to preserve the majority or the entirety of custody over the children. Allegations go a long way in Family Court, and any seasoned California Divorce Attorney knows that one parent will often make unevidenced allegations of abuse to justify taking the children away from the other parent, like so much property.

The California Family Law System is deeply dysfunctional, and it is need of some serious positive changes. Though the problem of child abductions is connected to various international issues which shall be discussed later in this article, on the local level alone, it is often inextricably linked to the discussion of California Child Custody and Divorce laws regarding domestic violence. Thus, the problem of child abductions cannot be resolved in California unless the Family Law Court system increases its demands for evidence when faced with one parent’s allegations of abuse and negligence, and nurtures a professional environment that is truly committed in deed, and not just in word, to the welfare of children and the right of a child to have equal time with both parents, rather than jaded by slanted political and gender debates and financial interests.

Serious Problems and Real Solutions for the
California Child Custody and Family Law Court System

As a California Family Law Attorney practicing in San Jose, Redwood City, San Francisco, Oakland, Santa Cruz, and the surrounding areas, and having a Divorce Law practice that focuses on Child Custody, Equal Parenting Rights, and Collaborative Divorce, I join many of my progressive colleagues in urging California legislators to adopt some serious changes to our Family Law Courts, such as:

1. Allow jury trials in Child Custody cases to help avoid the judicial cynicism and fatigue that may creep into judge-controlled Family Law cases in California;
2. Take seriously citizen complaints about child therapists and social workers, and set up a third-party independent review process meant to weed out from the Court’s list of recommended professionals the psychological evaluators, Special Masters, and other therapeutic practitioners who are repeatedly alleged by various clients to act in a biased or unprofessional manner;
3. Make a concerted effort to educate lawyers, judges, and divorce professionals about the science that supports the essential albeit practically marginalized role of fathers in children’s lives, so that we can start to see divorced fathers being given back their natural human right to spend equal time with their children; and
4. Understand that the current model of extended court-based mediation and post-mediation hearings often subjects parents and their children to kangaroo court injustices where the laws of evidence are held in abeyance and therapists’ and mediators’ knee-jerk evaluations hold ultimate sway for months if not years, at which point then the parties may proceed to the litigation process of discovery and trial, which can take months and years itself. Our California Family Law Courts need to set up more stringent deadlines for this presently unending mediation process, bolster the goal of giving every child his equal time with both parents, and uphold and fortify evidentiary requirements upon both parents who are often found slinging whatever mud they can grab during this current mediation-based process.

Given that these necessary and inevitable changes are likely to take decades to occur in California, it is particularly unfortunate to see so many unrepresented parties in the Family Court system, because only a diligent and ethical Divorce and Child Custody Attorney could help a party to find their way past these pitfalls which are so common in our Divorce Courts in Santa Clara County, Alameda County, San Francisco County, and the other jurisdictions of Northern and Central California.

California Child Abductions by Foreign-Born Parents to Foreign Nations

What is even more troubling is a recent trend in Child Abductions, particularly by foreign parents to nations with even more aggressively gendered child custody laws. For example, there has been serious concern raised by California divorced fathers with ex-wives from Japan who have kidnapped their children and taken them to that country, where Japanese Child Custody laws strongly favor automatic, lasting, and unilateral child custody for mothers. Such laws are born of outdated modes of thinking that women are better or more natural caregivers and parents than fathers. Worse still, Japan is the only major industrial nation that has failed to sign the 1980 Hague Convention, which would require a member nation to mandate the return of abducted children to their country of origin.

The 1980 Hague Convention is a famous and deeply respected international treaty that has been signed and ratified (i.e., made into domestic law) by many nations to help support basic human rights and upgrade the treatment of people all over the world according to common and basic understandings of morality and decency generated by the world’s leaders and ambassadors to the United Nations. Therefore, it is very concerning that Japan has not signed and ratified this Convention, and even more so that Japan’s outdated Child Custody Laws have become a solace to certain Japanese mothers who are abducting their children from California fathers and running away to Japan, never allowing the fathers and children to see each other again. Japanese officials have argued that they are doing a public service by not allowing the California fathers to see their children again, as the mothers are running away from them because they were abusive. Yet it is precisely such questions of fact that must be answered by way of a legal court proceeding, not by private persons taking the law into their own hands and abducting a child to a foreign nation to hide behind allegations of abuse. Japan’s defense of such vigilantism is wrong and hypocritical, as it would never tolerate such flouting of its own laws.

Why the USA Refuses to Ratify the
United Nations Convention on the Rights of the Child

Another international Treaty, or “Convention”, that provides for basic human rights to children is the United Nations Convention on the Rights of the Child. Only two of the many nations that have signed this noble Treaty have failed to ratify and make it into their own domestic law — Somalia and the United States. Somalia has not been able to ratify the Treaty because it currently has no recognized central government, being a war-torn nation. It is a source of international shame and outrage that the United States has failed to ratify this Treaty. The United States refuses to ratify this Treaty because if it did, it would have to immediately cease its long-standing laws and policies which permit imprisoning juveniles under 18 years old (e.g., 16 or 17 year olds) with adult prison populations, permit giving the death penalty to juveniles, and permit juveniles to join and fight with the US military — boorish laws and policies that set the United States shamefully apart from nearly all of its dozens of industrialized international allies. Also, if the USA signed this Treaty, it would have to provide universal health care coverage for all children, which it refuses to do, making it a glaring exception among the major industrialized nations in the world.

Further, if the USA were to ratify the United Nations Convention on the Rights of the Child, each of the state’s family laws and separate child custody systems would have to be seriously scrutinized and revamped to fall in line with that Treaty’s requirements that all children be given the human right to spend equal time with both parents, absent evidenced, continuing, and serious reasons to do the contrary. Problematically, state’s Family Law Courts across the USA, including in California, currently provide mothers sole custody of children the great majority of the time in contested custody cases, fathers sole custody a small minority of the time, shared custody a modicum of the time, with a true 50–50 time-share of child custody between divorced parents happening very rarely, according to the 2000 US Census and coeval California State Family Court Services reports.

I am strongly in favor of the USA’s ratification of the UN Convention on the Rights of the Child, as the above-outlined problems in our nation’s treatment of children’s human rights demand immediate resolutions that this Treaty would require. In addition to such above-noted problems, children in the USA deserve more funding than they receive for their educations, funding for children’s parks and community recreation centers, and funding to relieve poverty, hunger, and homelessness among children in the USA — fundamental problems that the world’s wealthiest nation should not have, especially as it spends billions or trillions of dollars on corporate bailouts, corporate welfare, and military research and warfare worldwide.

1.2 Million Children Are Abducted Every Year Around the World

According to UNICEF, 1.2 million children are abducted and sold by strangers or even by their own parents each year all over the world. These children are sold into child slavery or child labor, forced into prostitution or child pornography, forced to become members of the military or tribal killing groups, forced to become members of local circles of thieves and criminals, or plainly killed so that their organs can be harvested and sold to doctors, hospitals, and patients paying hundreds or thousands of dollars for such live organs to be used in organ transplant surgeries. Several human rights organizations around the world work tirelessly to stop this outrageous crime of child abduction and systematic abuse, including Terre des Hommes International Federation, ECPAT International, World Vision, and of course UNICEF. However, little attention is given to this cause, as the victims of such abductions are usually homeless orphans who are lost from international sight and memory in war-torn and impoverished nations. In 1998, some international media attention did momentarily alight upon this disasterous situation when the award-winning fictional Greek film, Eternity and a Day, focused in part on this problem of the sale of abducted children in the Black Market. Yet it will take more than a movie to do anything positive to fix the issues around child abduction. More so, it is the politicians and corporations that we choose to support, versus those that we do not, the kind of work we do to earn a living, and how we choose to spend our money that will likely make the greatest difference in healing the problems outlined in this article.

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