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posted: 4/22/2010 12:01 AM

After Elian, global child custody issues more prevalent

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  • Nearly 10 years after being returned Cuba from the U.S., Elian Gonzalez attends the Union of Young Communists congress in Havana earlier this month.

      Nearly 10 years after being returned Cuba from the U.S., Elian Gonzalez attends the Union of Young Communists congress in Havana earlier this month.
    Associated Press

 
 

Ten years ago today, heavily armed U.S. Border Patrol officers stormed into a Miami home in the wee hours of the morning and plucked 6-year-old Elian Gonzalez from his hiding place in a closet, providing a dramatic climax to a chaotic international child custody dispute that dominated the news for months.

Found drifting alone on an inner tube in the ocean after his mother and others drowned during their ill-fated attempt to escape Cuba and seek refuge in the United States, young Elian became a pawn in a high-stakes custody battle between relatives in Miami and his father in Fidel Castro's communist Cuba. President Bill Clinton, voicing a sentiment he recently reaffirmed to an Associated Press reporter, said international law was on the side of the father and Cuba, and that little Elian had to be returned no matter how unpopular that decision was in some sectors.

International custody battles these days don't usually start on the high seas or garner round-the-clock coverage from news teams. For example, consider the case of a Hoffman Estates mother trying to get her son back from India. But those sad cases when a child is torn between parents in two countries cause just as much drama and trauma.

"Parental child abduction is a tragedy. When a child is abducted across international borders, the difficulties are compounded for everyone involved," says John Echard, spokesman for the U.S. State Department's Bureau of Consular Affairs, in an e-mail responding to questions from the Daily Herald.

The smaller the world seems to be, the more such abductions grow.

In 2000, the U.S. State Department opened 438 new cases of child abduction from the United States to other nations. In 2009, the number of such abductions reported to the State Department jumped to 1,139, involving 1,631 children. Currently, the department has more than 2,000 open cases involving more than 3,000 children.

"More parents abduct their children to and from the United States than any other country," Echard says.

"These cases can forever alter the lives of those involved. International parental child abduction not only jeopardizes children but has substantial long-term consequences for the left-behind parent, the family, and society as a whole," Echard adds. "Children who are abducted by their parents are often suddenly isolated from their extended families, friends and classmates. They are at risk of serious emotional and psychological problems. Similarly, left-behind parents face emotional trauma and significant financial costs, compounded by unfamiliar legal, cultural, and/or linguistic barriers."

Hoffman Estates lawyer and divorced mother Malini Byanna, 41, knows the heartache well. Granted sole custody of her son, Tejas, after her 2002 divorce from her husband Vikram Akula, Byanna and Tejas built a life in the suburbs. Then last fall, Byanna and the boy leased a home in Hyderabad, India, home of his father. Akula, a multimillionaire microfinance entrepreneur who lectures and attends meetings with Bill Gates and U.S. Treasury Secretary Timothy Geithner, filed documents to stop Byanna from bringing the boy back to Hoffman Estates.

Since then, Tejas remains in India and his mother has been fighting through the courts in Illinois and in India to regain the 9-year-old from his father in what has been a grueling legal battle. Akula, through his prominent Chicago attorneys, says Byanna's parenting and a life in the United States are not in the best interest of his son's welfare. Byanna's attorneys say Akula filed false documents and used his wealth and power to pull off a "kidnapping." Akula's attorneys vehemently object to that characterization, but the State Department does not.

"The Byanna-Akula case is one of scores of Indian-American families who have been victimized by the crime of international parental child abduction," says Echard, adding that cases between these two nations are on the rise. "The Department of State's Office of Children's Issues is currently providing assistance in 93 cases of wrongful removal to, or wrongful retention in, India, cases that involve 105 children. With the exception of Mexico, the Department has more open cases to India than to any other country in the world."

The International Parent Kidnapping Crime Act of 1993 makes it a federal felony to remove or retain a child younger than 16 from the United States with the intent to obstruct the lawful exercise of parental rights. The 1980 Hague Convention on the Civil Aspects of International Child Abduction is "the most effective solution available to left-behind parents to reunite with their abducted children," Echard says.

India, despite consistent urging from the U.S. and others, is not one of the 68 Hague partner nations. So there is no formal agreement between the world's largest democracy and its oldest.

"Where the Convention is not in force, left-behind parents have few remedies under which to seek the return of, or access to, their children," Echard writes.

As exemplified in the Gonzalez case, the United States does comply with international law. In 2009, 154 children who were wrongfully retained in this nation were returned to their home country. Additionally, 436 children who were abducted or wrongfully retained in other countries were returned to the United States.

In the Byanna-Akula dispute, Cook County Circuit Court Judge Pamela E. Loza asserted Illinois jurisdiction in the case, but the India courts may not recognize the ruling.

"The Office of Children's Issues, the U.S. Embassy in New Delhi, and the U.S. Consulate General in Hyderabad continue to monitor this case and its progress through the Indian court system," Echard says.

In general, "once a child has been abducted to India, remedies are very few," warns the State Department's Web site. "India does not consider international parental child abduction a crime, and the Indian courts rarely recognize U.S. custody orders, preferring to exert their own jurisdiction in rulings that tend to favor the parent who wants to keep the child in India."

Indian officials "seem to be desensitized" to her plight because such cases "have become so prevalent," Byanna says by telephone Wednesday from India. "That's been the most horrifying part of this. There just seems to be a cavalier approach."

The American mother says she feels the burden to prove cases rests with the left-behind parents because of a bias for the abductors.

Splitting time between her life and career in the suburbs and her son in India, Byanna continues to fight. Buoyed by a wide network of supporters throughout the suburbs and in India, Byanna's Hoffman Estates townhouse still sports Christmas decorations and a tree, waiting for her son to come home for the holiday. She battles to return him to his suburban soccer team, his karate lessons, his Scout troop and his class at St. Hubert Catholic School.

"Tejas promised me that he would remain strong, courageous and faithful until such time that he is fully and finally liberated from India," Byanna says.

"We really have no recourse because we are at the mercy of the system. But the facts and the law are on our side."

The State Department's website (http://travel.state.gov/childabduction) offers help with everything from finding lawyers in a foreign land to hooking parents up with not-for-profit agencies that will help with the reunification process. Prevention is key, and one of the main tools to prevent an abduction is the Children's Passport Issuance Alert Program, which notifies a parent if the other parent applies for a U.S. passport for their child. The Department of State's round-the-clock toll-free phone number is (888) 407-4747.

"With the significant increase in abduction cases," Echard concludes, "the need for preventing international parental child abduction has never been more apparent."

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