A Case Shows Shift in Kidnap Laws
What a difference two decades make.
In 1979, when Stephen Fagan abducted his two young daughters and fled from Massachusetts to Florida, his former wife, Barbara Kurth, had few places to turn. Parental kidnapping was often regarded by law-enforcement officials as a family matter. Ms. Kurth has stated publicly that police and the FBI refused to get involved, citing a lack of laws.
Today, in the wake of Mr. Fagan's highly publicized arrest in Palm Beach last month on kidnapping charges, advocates for missing children are using his case as a measure of how attitudes, resources, and laws have changed.
"We have come light years in these cases," says Ernie Allen, president of the National Center for Missing and Exploited Children in Arlington, Va. "In 1979, it wasn't even a crime in every state. There was a pervasive attitude that we still battle to some extent today: 'The kid's with the parent, how bad can it be?' You couldn't even enter missing-child information in the National Crime Information Center, a national data base for 17,000 police departments."
Now, Mr. Allen says, more training exists for police. More judges are taking cases seriously, and penalties are improving.
So are recovery rates. Since 1990, the center has located more than 80 percent of the children it seeks. "Most kids are recovered, most abductors are identified, and most kids are returned to their lawful parent," Allen says. "But it's a continuing battle."
As the Fagan case illustrates, that battle can continue even after children are found. (Police discovered Fagan living under the name William Martin.) Ms. Kurth, a research scientist in Charlottesville, Va., has denied Fagan's claims that she was an alcoholic and a neglectful mother. But their daughters, Rachael and Lisa Martin, refuse to see her.
Every year, as many as 350,000 children are involved in family abductions, according to the US Department of Justice. A family member either takes a child in violation of a custody decree or fails to return a child at the end of a legal or agreed-upon visit. Children typically range from 2 to 11 years old. In nearly half of cases, the child is missing from two to seven days.
Progress in dealing with these cases began in 1980, when a federal law prohibiting parents from abducting their children took effect. Its purpose is to ensure that state child-custody determinations will be honored by courts of other states.
"If you have a custody order in Georgia and the other parent takes the child to California, California should honor these papers," says Frank Bernhardt, director of community outreach for Children's Rights of America in Atlanta. "But in some cases that is still a problem."
In 1982, Congress passed the Missing Children Act, a law that provides for missing children to be entered into the FBI computer. By the early 1980s, all 50 states had enacted the Uniform Child Custody Jurisdiction Act, a uniform state law designed to promote interstate cooperation in enforcing custody orders. And if a parent takes a child out of state or out of the country in defiance of a court order, law-enforcement officials can obtain a warrant for the abducting parent's arrest.
Other tools range from missing-children clearinghouses and the Internet to posters and milk cartons. Even television programs like America's Most Wanted can help, says Howard Davidson, director of the American Bar Association Center on Children and the Law in Washington.
Yet challenges remain. Disputes between the state where a child lives and the state where a child is found can keep children in legal limbo. "Laws involving abducted children must work like those for stolen automobiles or stolen money," says Ivana DiNova, executive director of Missing Children Help Center in Tampa, Fla. "If it was your auto, they'd call you up and say, 'We've got your car.' It's federally mandated that your car is protected in this way. But when they find a child, there are so many questions asked."
Some problems occur when one parent takes a child to another state and initiates court action there. Nearly three years ago, David Conca's wife abducted the couple's 18-month-old son from their home in Wappingers Falls, N.Y., to Michigan, then filed for divorce.
Under New York law, Mr. Conca cannot obtain a felony warrant against her because she left the state before custody had been determined. In an effort to change state laws, he founded the Coalition for Missing and Abducted Children.
Conca cannot afford to hire a private investigator to find his son. "Between having to retain lawyers in New York and in Michigan, it gets very expensive," he says.
Calling private investigators "tools for the rich," Mr. Davidson notes that most parents whose children are abducted are poor. The National Center for Missing and Exploited Children and the American Bar Association urge lawyers to take some cases pro bono or on a sliding-fee scale.
Some of the most heartbreaking stories, Davidson finds, involve international kidnappings. One co-founder of Conca's group last saw her children 10 years ago, when her former husband abducted them to Egypt. Forty-nine nations, including the United States, have signed the Hague Child Abduction Convention, an international treaty promoting intercountry cooperation. But enforcement remains a problem. And many countries have not signed.
In the US, advocates see a continuing need to educate police, attorneys, and judges. They also want uniform laws. In some states, parental abduction is only a misdemeanor. "When you have custody arrangements, when someone willfully and maliciously abducts a noncustodial child, it should be a felony in every state," says Karen Strickland, executive director of Find the Children in Los Angeles.
Allen says it is hard to get aggressive prosecution and meaningful sentences for abductors. At the same time, parents often waive warrants to get their children back safely. "They say, 'I'll do whatever it takes,' says Mr. Bernhardt.
Advocates' ultimate goal, of course, is prevention. In an era of high divorce rates, they emphasize the importance of keeping custody issues from becoming adversarial. Washington state, Ms. DiNova notes, is requiring parents to undergo counseling before a divorce. "The whole point is, your child is going to come first."
Adds Allen, "What the abductor has done is steal a childhood, and rob one or the other parent of their child's growing-up years. How do you give that back? The answer is, you don't."