The International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. § 1204, serves as a potential deterrent against parental child abductions. In U.S. v. Cummings, 281 F.3d 1046 (9th Cir. 2002), the court held that the IPKCA was constitutional and that it could be used to force a father to removed his children to Germany would have to pay restitution to the mother for her expenses related to the civil causes of action she sought based on the abduction.
In that case, the father and mother had three children when they divorced in 1995. In November 1997, a Washington court granted the father temporary custody of the oldest child after the child's stepfather allegedly struck the child in the face. In March 1998, the father picked up his middle child for a visit and took both children with him to Germany.
The mother tried to get an immediate return under the Hague Abduction Convention, but a German court denied her petition. So, she filed a contempt action against the father in Washington. Additionally, the United States indicted the father on four counts of child abduction under IPKCA. The father conditionally plead guilty to two counts, and the district court sentenced him to six months in prison, one year supervised release, a $200 special assessment, and $15,090.82 in restitution to the mother.
The father appealed, arguing (1) that IPKCA was unconstitutional and (2) that the court could not order restitution for the separate civil actions in state and German courts.
The court held that Congress had the authority to enact IPKCA based on the Commerce Clause. The father contested the regulation of illegal retention because it could occur only after commercial activity (he did not challenge Congress's ability to regulate illegal removals). The court's began its stroll down Constitutional Law Avenue by reminding that the power to regulate commerce, "like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196, 6 L.Ed. 23 (1824).
Unsurprisingly, the court went on to hold that IPKCA regulated on of the three "categories of activity that Congress may regulate under its commerce power"--the ability to regulate the channels of commerce. United States v. Lopez, 514 U.S. 549, 558 (1995). The court held that by taking the children to Germany on commercial airlines, the father had used a channel of commerce, which Congress has the power to regulate. The court was unpersuaded by the father's distinction between removal and retention. The court held that Congress has the power to regulate activity that impedes foreign commerce, and the father impeded the children's travel abilities by retaining them in Germany. Finally, the court held that IPKCA's jurisdictional elements ensure that each individual case involving IPKCA will involve the Commerce Clause powers. Thus, IPKCA was held constitutional.
The court had no problem upholding the restitution award. First, the restitution was appropriate because a court can order restitution under the Victim and Witness Protection Act of 1982, 18 U.S.C. § 3663(a)(1)(A). Second, the mother's legal costs were a direct result of the father's offense, which can call for restitution under United States v. Stoddard, 150 F.3d 1140, 1147 (9th Cir.1998) ("'[A] restitution order must be based on losses directly resulting from the defendant's criminal conduct.'"). Despite the father's argument that the costs were wholly unrelated and thus inappropriate under U.S. v. Barany, 884 F.2d 1255 (9th Cir. 1989), the court distinguished the facts and recognized that 18 U.S.C. § 3663(b)(4)--enacted after Barany in 1994--made restitution appropriate in this case.
Thus, IPKCA may not get a return remedy, but it can deter abductions with criminal repercussions and help parents recover legal costs.