international family law
U.S. law says that if a child is taken into the United States without permission, the parent left behind can ask the court to make the other parent pay for all the costs of trying to get the child back. This includes legal fees, travel, and other related expenses (22 U.S.C. §9007(b)(3)).
However, if a child is taken out of the U.S., the law does not clearly say that the parent left behind can ask for the same kind of reimbursement from the abducting parent.
There is a disagreement between two federal courts—the Ninth and Tenth Circuits—about whether a law meant to help crime victims (called the Victim and Witness Protection Act) allows a left-behind parent to recover legal expenses after a child is taken internationally.
This law lets a judge order someone convicted of a crime to pay for certain expenses the victim had during the investigation or trial (18 U.S.C. §3663(b)(4)).
In the Ninth Circuit case U.S. v. Cummings (2002), a father took his children from Washington State to Germany, violating a custody order. He was found guilty under the International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. §1204.
The mother took legal action in both Germany and Washington to get her children back. The court ordered the father to go to jail and pay for the mother’s legal costs. The court said these civil cases were connected to the criminal case, so the restitution was allowed.
In a later case, U.S. v. Mobley (2020), the Tenth Circuit disagreed. A mother took her children from Kansas to Russia and later filed for divorce and custody there. The father did the same in Kansas.
Even though the mother was convicted under the IPKCA, the court of appeals said the father could not be paid back for his legal expenses. They said his civil cases were not part of the government’s investigation or criminal trial, as required by law.
The court relied on a Supreme Court decision (Lagos v. U.S.) that says restitution only covers costs directly tied to the government’s criminal investigation or trial.
It’s still possible that, in future cases, a parent might show that their legal efforts helped the government in a kidnapping case. In those rare situations, the court might still allow restitution.
However, even then, this would only apply in cases where the abductor is charged under the IPKCA. And even in those cases, it would be very hard to actually recover the money.
Moshier Law
Helping Families Through Complex International Child Abduction Cases
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