Seven-year-old Dustan Dinshaw spent an old-fashioned Christmas in America last week. He went to his grandparents' farm in Millington, Mich., where he played with his cousins and went ice skating and sledding. That may not seem remarkable, but it was. Dustan nearly spent this Christmas, and many more, in India, where he lived early this year for five months. He is one of a small but apparently growing number of children who are spirited out of the United States by a parent in custody battles, in violation of US court orders.
Getting him back to the US required months of effort by his mother and maternal grandparents, a good deal of money, a skilled lawyer, and approval by an Indian court.
A modest number of such children are, like Dustan, found and returned to the US. Others are discovered, but courts in the country to which they have been taken permit the abducting parent to keep them in their new country, US court orders notwithstanding. Some children simply go abroad and vanish.
Literally no one knows how many children are taken abroad. No one even knows how many American children are kidnapped - the once oft-repeated figure of 50,000 abductions a year is now dismissed as far too high - let alone how many are spirited abroad.
The US State Department says that since 1973 it has participated in 2,312 international child-custody cases. Most of them apparently have arisen since 1980, when the department's Bureau of Consular Affairs was established and it became known that the department would provide modest help to Americans whose children have been abducted overseas. ``There may be a slow increase,'' says the department's Jenny Foo, ``but it may be because more people are aware of our services. It's hard to tell if there actually are more cases.''
Jeff McFarlane, a staff member of the House Human Resources Subcommittee, which has probed the situation, says flatly that there are ``an increasing number of these cases.''
Georgia Hilgeman, executive director of the Vanished Children's Alliance, says there are ``hundreds and hundreds if not thousands'' of such international abductions. ``I'd say about 2 to 3 percent of all parentally abducted children are out of the country.'' Like some other people involved in the child abduction issue, she has had personal experience: Her child was in Mexico for 4 years before she was able to locate and retrieve him.
For five months early this year young Dustan was the object of an international custody battle. A Michigan court had awarded custody to his mother, but last January his father, an Indian national, spirited him to India.
But his mother and her parents were determined to regain custody. They learned all they could about such cases, went to India, and hired an Indian lawyer. On June 14, Dustan, his mother, and grandparents finally returned home - ``exhausted but happy,'' says his grandmother, Mrs. William Carroll.
During their five-month struggle to find Dustan and bring him back, the Carrolls discovered that the State Department, through its Bureau of Consular Affairs in Washington, would be of only limited help. The department views ``the resolution of child custody disputes [as] a private legal matter in which the Department of State may not properly intervene,'' says a document it provides to parents of children missing abroad.
The department's role is limited to issues of the welfare and whereabouts of US children overseas, and to the question of whether passports should be issued to children in the midst of custody disputes.
In general, which parent gets custody of an American child abducted overseas depends on the law of the country to which he or she is taken; US laws do not apply.
Some children, like Dustan, are eventually returned to their custodial parent in the US. The State Department says it knows of 265 children who have been retrieved this year.
But ``parental kidnapping, for the most part, is not internationally extradictable at this time,'' says Janet Kosid, director of legal technical assistance of the National Center for Missing and Exploited Children in Washington, D.C.
In a few years a new international agreement should make it much easier for parents in the US to retrieve their children from several, mostly European, nations that have ratified it. It would make a 180-degree turn in customary procedure in international child custody cases; it provides that a child should be returned to the nation in which he or she usually lives, and that the custody laws and rulings of that country should apply.
Called the Hague Convention, it was hammered out in 1984. Eight Western nations, primarily in Western Europe, have ratified it. About half of all American children taken overseas go to these nations.
The US, however, has not yet fully agreed to the treaty. The Senate has ratified it, but the House has yet to pass enabling legislation that would spell out precisely how it would be applied.
Even when all these nations become full signatories, large areas of the globe will present serious potential difficulties. ``The problem areas,'' says Ms. Kosid, ``are going to be the Middle Eastern countries'' where there is little interest in joining, and from which it is very difficult to retrieve children, if they can indeed be located. The cultures and laws of many Middle Eastern and developing nations give fathers far more rights in the custody of children than mothers, which poses challenges to any American mother whose child is abducted to such a nation.
Nonetheless, says Mrs. Carroll, a parent whose child is taken abroad should not surrender, but should persist in the effort to achieve the child's return to the custody and community a court has ruled appropriate.