April 2, 2014 by Robert Franklin, Esq.
It’s a different case, different countries, a different year, but the results are maddeningly the same. We’ve seen countless cases of parents abducting their children out of the country in which they’ve lived their whole lives, thousands of miles away to countries whose people, language and cultures are strange and confusing to them. We’ve seen how that, plus their isolation from familiar places and people – friends, neighbors, relatives, teachers – constitutes a form of abuse of children that’s similar to Stockholm Syndrome. They come to see the abducting parent as the sole source of nurture, protection and society, creating a total dependency on that single individual. For anyone, that would be an emotionally/psychologically precarious position, but for children, it’s all the more so.
Finally, we’ve seen the wheels of justice turn with agonizing slowness, leaving in place that abuse for months and years. Remember Tomasso Vincenti, the Italian man whose ex-wife kidnapped their four children to her native Australia? Despite the fact that there was never a doubt that the children’s habitual place of residence was Florence, Italy, where they’d spent their entire lives, Australian courts took almost three years before finally ordering their return. That directly contradicts the terms of the Hague Convention on the Civil Aspects of International Child Abduction that seeks the return of children within 60 days.
And so it was here (CNN, 4/1/14). A Colorado man, Dennis Burns was married in this country to an Argentinian woman, Ana Alianelli. They had two daughters, Victoria and Sophia. Alianelli filed for divorce in 2009, when the girls were six and four years old. Thirteen months later, the judge in Colorado ruled that Burns had been their primary parent and so would be given primary custody.
That apparently didn’t sit well with Alianelli; she was gone in a week, having fled to Argentina with the children. They’ve been there ever since – three and a half years. The court in Argentina ordered Alianelli to permit the girls to visit with their father three times a week via Skype, but as the case there wore on and she lost at every level, Alianelli cut off all communication between Victoria, Sophia and Burns. She violated the court’s order by doing so.
Finally, Argentina’s Supreme Court ruled in Burns’ favor, as had all previous courts. He expects an order returning his daughters to him soon.
Argentina and the United States are both signatory nations to the Hague Convention, and of course both are bound by its terms. As in all such cases, the courts of the country to which a child is abducted have essentially one job to perform. They have to determine which country is the child’s habitual place of residence. Once that determination is made, the children are supposed to be returned to their home country whose courts are then to adjudicate whatever matters may arise. So if Mom claims Dad’s abusive, neglectful, or unfit to parent the children, she’s required to bring the issues before the courts of the country the children understand to be their home. That regimen is meant to provide stability for the children while their parents fight it out in court.
It would be a sensible approach if it worked, but time and again we see that it doesn’t. In the Burns/Alianelli case, the children have spent ages 7 – 10 and 5 – 8 in Buenos Aires. By now, their home in Colorado is likely only a distant memory, so their return – when it happens – may be every bit as traumatic as their original abduction.
So how can a case take so long, as almost all of them seem to? Well, in this case, Alianelli simply took advantage of every procedural safeguard available to her in the Argentinian legal system. She appealed, appealed and appealed again, and the whole sorry affair lasted over three years. Vincenti’s ex did much the same in Australia. Courts move slowly and vindictive parents often figure that the next best thing to winning is making the other parent suffer. Sadly, making children suffer in the process seems to be an acceptable price for many parents. Alianelli is obviously one of those.
What is to be done? How can the Hague Convention be fixed to function as it’s intended to? There’s no obvious way. After all, nation states like Argentina and Australia aren’t going to abandon their rules on due process of law just to satisfy one of the countless conventions they’ve signed, nor should they. The United States wouldn’t do that and no country should be asked to. So how do we give effect to the plain terms of the Convention?
That may not be possible, but I can think of a couple of fixes that may do a lot to, if not change the Convention itself, give it greater effect. First and most obviously is enforcing criminal laws against parental kidnappers. Essentially every jurisdiction has some sort of criminal penalties for those who trample the custodial rights of parents. For reasons that escape me entirely, those laws are rarely enforced. Indeed, a fine bit of investigative reporting recently revealed that, district attorneys for the five largest cities in Texas simply refuse to enforce the statute making custodial interference a felony. Out of hundreds of cases in the past year, only a handful resulted in charges.
That nullification of a criminal statute by officials who were elected to enforce the criminal laws should be a scandal, but the district attorneys clearly believe they can do so with impunity.
The same held true in Vincenti’s case, but even more shockingly. Not only did Australian authorities refuse to punish his ex-wife, Laura Garrett, for her multiple violations of criminal law (including sequestering the children in secret in violation of an Australian court order), but during the legal wrangling, Australia’s television news program 60 Minutes revealed that Garrett had, years before, perjured herself claiming sexual abuse by a man later found to be innocent of the charges. That a revelation of such serial criminality produced not a single criminal charge against her would astonish anyone not familiar with the way the criminal justice system ignores mothers who kidnap their kids.
But Vincenti’s case turned out to be even worse. Before the family court agreed to order the children’s return to Italy, as it should have literally years before, it received an affidavit from the Italian prosecutor in Florence swearing that Garrett wouldn’t be prosecuted there, should she return with the children. In short, Australia refused to prosecute her and Italy promised not to.
It’s hard to imagine a door more wide open to mothers who might be thinking about abducting their children. The failure on the parts of police and courts to in any way punish the wrongdoing of those parental abductors fairly shouts to them “Give it a try! What have you got to lose?” The worst that can happen to them is that mothers like Garrett and Alianelli will ultimately lose their cases and the children will be sent home. And who knows? - they may get away with it as, unfortunately, a few do.
So fix No. 1 would be to enforce the laws already in place. If that were uniformly done, parents thinking about abducting their children would probably think again.
Fix No. 2 is shared parenting. Ana Alianelli had just lost custody of her two kids when she hied them all to Argentina. Now, at this point we don’t know why she was treated like so many fathers are – demoted to visitor in the lives of the children. It appears that Burns had taken on the role of primary parent, so he got primary custody. That’s admirably consistent with how custody cases are usually decided, but consistency isn’t the point. The point is children’s welfare, and the system of primary/secondary parents is by now well known to be failing our children. At the time the judge decided custody, there was nothing to indicate that Alianelli was an unfit parent, so why didn’t she get half – or approximately half – parenting time? The answer seems to be that, well, that’s just not what courts do, even though equally shared parenting is by far the best arrangement for kids and the one they prefer.
Had she gotten the 35% - 50% parenting time to which every fit parent should be entitled, maybe Alianelli would have stayed put. Had she done so, the children would have been far better off for all the usual reasons, and into the bargain wouldn’t have endured the trauma of abduction. Oh and by the way, Burns has spent every cent of his life savings litigating the matter, so his daughters now won’t have the life they would have had if Alianelli had stayed in Colorado.
It’s tempting to say that all’s well that ends well, but the truth is that this one didn’t end well. It ended as well as can be expected under the circumstances, but many of those circumstances are the result of policies, both official and unofficial, that encourage the very behavior Alianelli engaged in.
It’s odd to realize how much good could be accomplished simply by doing the obvious.
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