Child Abduction

• Author: International Law Group

In 1990, Lawrence Robert Whyte [plaintiff or the father] married Marsha Whyte [defendant or the mother] in 1990. A child, Nina, was born in January 1995. In September 1995, one of them filed divorce proceedings in the District Court of Harris County, Texas; it led to a final decree in January 1998. The court entered it with both parties' agreement and accompanied by submission to the court's jurisdiction. The decree designated both parties as Nina's "Joint Managing Conservators" but granted the father "primary physical residence" in Texas.

The decree consisted of about 25 pages of the most detailed provisions in relation to Nina's residence, care and contact with her parents. It specifically provided for Nina's time with each parent, and her delivery by the one to the other; clause 15 explicitly enjoined either parent from taking Nina to a country not party to the Hague Convention on the Civil Aspects of International Child Abduction, in force for U. S. July 1,1988 [T.I.A.S. 11670].

The clear purpose of that clause is to facilitate control of any breach of the custody orders.

The decree also spelled out sanctions for breach of its terms. For example, Clause 20 provided that a party violating the terms of the decree would be liable for any costs and fees reasonably incurred by the other as a result of the violation. Finally, a note reminded the parties that breach of the order was a contempt of court, punishable by imprisonment.

Flouting the divorce decree in August 1998, defendant exploited one of her periods of agreed custody to abduct Nina to the Russian Republic, a country not one of the over fifty parties to the Convention. She refused to return her. After proceedings in the Russian courts, those courts declined to honor the Texas decree and awarded custody to the defendant.

In desperation, the father had Nina seized in Russia and returned to Texas in December 2001. The defendant's flagrant defiance of the Texas court order, and the dislocation, distress and trauma that Nina had to go through as a result -- having been at the time of the abduction three and a half years old -- were obvious to the forum court.

The plaintiff, however, did not proceed against the defendant under the divorce decree's penal provisions; instead he filed proceedings against her under chapter 42 of the Texas Family Code. That allows for damages for "interference with possessory interest in child". They may include the costs of recovering possession; "mental...