DESCRIPCIÓN AGROLÓGICA DE LA CAÑA DE AZÚCAR
1.6 PROCEDIMIENTO METODOLÓGICO
1.6.1 TIPO DE INVESTIGACIÓN
Many law-enforcement agencies do not treat parental kidnapping as a serious criminal act and are reluctant to commit the law-enforcement resources neces- sary to fully investigate, in part because of their belief some victimized parents press charges in order to barter for the return of the child only to drop the charges later when the child is located.
You must seriously consider whether you want the abductor to be prosecuted. Think about how your child will react to having a parent arrested, tried, and possibly sent to jail. Realize if you have a change of heart, you may not be able to stop a prosecution later on. Your child and you, as well as other relatives and close friends, may be called on to testify in the criminal trial. This will prolong your involvement with the criminal-justice system and may make psychological recovery more difficult for both your child and you. If your child is called to testify as a witness, call NCMEC at 1-888-24-NCMEC (1-888-246-2632) to request a copy of Just in case...Guidelines in case your child is testifying in court. This brochure is also available at www.missingkids.com. From the home page click on the “More Publications” link, and then on the “Just in Case...Series” link. Then scroll to the “Just in case...Testifying” link. Also be aware a criminal conviction does not automatically restrict the abductor’s visitation rights. To accomplish this you will have to go back to civil court to modify the custody order. Criminal charges can complicate child-recovery efforts in international- abduction cases involving Hague Convention countries. See the section titled “Pursuing Federal Criminal Charges In International-Abduction Cases” on page 54.
On the positive side a felony warrant may be the determining factor in a recovery. Some jurisdictions will render assistance in abduction cases only if there is a criminal warrant. A criminal court may exert continuing authority over the abductor through conditions of the sentence that may help prevent a reabduction. If you are determined to have the abductor criminally charged, prosecuted, and punished and are willing to assist law enforcement, prosecutors, and the court as requested, then it is appropriate for you to pursue criminal charges against the abductor and accomplices, assuming the abduction is punishable under state or federal law.
Pursuing State Criminal ChargesFollow the steps noted below to pursue state crimi-
nal charges against the abductor.
Review the criminal parental-kidnapping laws in your state and the state in which your child is located. Use the section titled “Nationwide Directory of Family-Abduction Laws and Resources,” beginning on page 199,to find statu- tory citations. Make copies of these laws.
Be prepared to show law enforcement or the prosecutor how the laws apply in your case. You may find it useful to talk to your lawyer, missing-child clearinghouse officials, or a missing-children organization such as NCMECF
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There is confusion about whether criminal charges can be brought against a parent who abducts a child in violation of a joint-custody order. Some states have passed laws making it clear criminal-custodial-interference laws apply to joint-custody orders. In jurisdictions without such laws legal arguments can be made that a joint custodial parent who unilaterally takes a child without consent violates the joint custodial parent’s rights. The more detailed the joint-custody order is about the child’s residential arrangements, the easier it will be to establish that a criminal-law viola- tion has occurred. Even if criminal charges are not filed against the abductor, your rights under the joint-custody order can still be enforced in civil court once your child is located.•
There may be confusion about which jurisdiction can charge the crime. Generally speaking the jurisdiction from which the child was taken charges the abductor with a crime. When the initial taking is lawful but the child is subsequently wrongfully retained, for instance when a lawful visit becomes an unlawful holdover, the wrongful retention may be a crime in both the jurisdiction in which it occurred and the jurisdiction from which the child was originally removed. It should not matter if the violated court order was obtained in another state provided the order is valid.•
Law-enforcement authorities may be reluctant to act if presented with conflicting custody orders – your order and one obtained by the abductor in another jurisdiction. The best way to avoid this legally ambiguous situation is to promptly file or register your custody determi- nation in a civil court in the state to which the abductor has taken your child. The UCCJA authorizes such filings, and the UCCJEA has a special registration process. The more quickly you act the better your chances of preventing the abductor or accomplice from getting a custody order from a local court.
Call the local prosecutor’s office and find out who makes the decision to file criminal charges in the jurisdiction where the crime occurred. It may be law enforcement, the prosecutor, or a local magistrate. Then make an appointment to speak to the person who makes such decisions. You may want to have your lawyer or a representative of a missing-children organi- zation attend this meeting with you. Take a certified copy of your custody decree with you, which you can obtain from the clerk of the court.
If law enforcement, the prosecutor, or a magistrate has questions about the operation of the criminal laws, ask them to call NCMEC’s Missing Children Division at 1-888-24-NCMEC (1-888-246-2632) and ask to speak with a lawyer.
Request felony rather than misdemeanor charges if appropriate under that jurisdiction’s law. Felony charges are more serious and more law-enforce- ment resources can be assigned to resolve them including increasing the ease of searching for your child outside of your jurisdiction. Felony charges enable issuance of a nationwide warrant for arrest of the abductor through the NCIC Wanted Person File. Felony charges also enable the prosecutor to seek a federal UFAP warrant so the FBI can provide investigative assistance if the abductor has left the state.
If you cannot obtain a felony charge ask for misdemeanor charges. Use this opportunity to discuss with the prosecutor or law enforcement the use ofsubpoenas or search warrants and other special investigative tools to obtain private records in the search for the abductor and your child. These are more fully discussed in the chapter titled “Searching for Your Child” beginning on page 63.
If an arrest warrant is issued, ask for the warrant number along with the NCIC Wanted Person File number. You should use the warrant number on posters or fliers of your missing child. All NCIC entries for the abductor and your child should be cross-referenced.
You can help law enforcement with their investigation by providing family background information including the abductor’s marital status, child- support obligations, whether the abductor is receiving welfare assistance, whether complaints about or prosecutions for domestic violence or child abuse have occurred in the past, and the status of custody orders and custody- related court proceedings.Pursuing Federal Criminal Charges In International-Abduction Cases Parents of children abducted from the United States to other countries, or wrongfully kept in another country should follow the steps noted below to pursue federal crimi- nal charges against the abductor.
Contact the nearest FBI field office to request an investigation. Check your local telephone directory for the number or visit www.fbi.gov. From the home page click on the “Your Local FBI Office” link. Arrange a meeting with an FBI Special Agent, preferably the Crimes Against Children Coordinator, to dis- cuss what the FBI can do and what you should do. The FBI Special Agent can get technical assistance from the FBI’s Crimes Against Children Unit in Wash- ington, DC, at 202-324-3666. Information about this Unit is available on the FBI’s website at www.fbi.gov. From the home page, in the “Search” field, type “Crimes Against Children.”
Contact the U.S. Attorney’s Office to arrange a meeting, in person or by tele- phone, with an Assistant U.S. Attorney to discuss the possibility of the federal government charging the abductor under the International Parental Kidnap- ping Crime Act. Have a copy of IPKCA, found beginning on page 178, handy for your reference and, if need be, to familiarize the federal prosecutor with the law. The U.S. Attorney can get technical assistance with IPKCA prosecu- tions from the U.S. Department of Justice, Criminal Division, Child Exploitation & Obscenity Section at 202-514-5780 and on international extradition from the Office of International Affairs at 202-514-0000. Informa- tion about these sections is also available at www.usdoj.gov. From the home page click on the “DOJ Agencies” link. Then respectively click on the “Criminal Division” and “Child Exploitation & Obscenity Section” links. Also from the home page, in the “Search” field, type “Office of Interna- tional Affairs” and select the links of interest.Convincing the Prosecutor to ProsecuteThe prosecutor has discretion in deciding to prosecute a case. In other words it is up to the prosecutor to decide which cases are prosecuted and which are not. You cannot force a prosecutor to prosecute a case; however, there may be ways to raise the profile of your case, which in turn