United States v. Fazal-Ur-Raheman-Fazal

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) provided a civil remedy for the wrongful removal of a child from his home country, but many countries, including India, were not signatories. Congress enacted the International Parental Kidnapping Crime Act (IPKCA) to criminalize the removal of a child from the United States with the intent to obstruct the lawful exercise of parental rights. Under the IPKCA, parental rights included rights that arose by operation of law of the state where the child resided. Saihba Ali and Fazal Raheman (defendant) were natives of India and resided in Massachusetts. Ali and Raheman had two children, both of whom were citizens of the United States. The marriage deteriorated, and Raheman repeatedly threatened to take the children to India. Ali moved out of the marital home with the children. Raheman traveled to his hometown in India and petitioned an Indian court for custody of the children, alleging that Ali was committing adultery. The law of that area of India was based on Islamic law and was favorable to Raheman. Raheman returned to the United States, picked up the children, and took them to India, without Ali’s knowledge or consent. Under Massachusetts law, Raheman and Ali had equal rights of physical custody when Raheman took the children to India. Raheman’s actions were permissible under Massachusetts law because there was no custody order to the contrary. Ali reported the matter to the police as a kidnapping and obtained an emergency custody order from a Massachusetts probate court. Raheman obtained a custody order from the Indian court. Ali fought for the return of the children for years, but because India was not a signatory to the Hague Convention, Ali’s remedies were limited. A federal grand jury indicted Raheman for violating the IPKCA. When Raheman returned to the United States on another matter, he was arrested, tried, and convicted for violation of the IKPCA. The court sentenced Raheman to three years’ imprisonment and ordered him to cooperate with the return of the children. Raheman appealed to the United States Court of Appeals for the First Circuit, arguing, among other things, that because there was no custody order in place, his conduct was legal under Massachusetts law, and the IPKCA could not criminalize conduct that was permissible under Massachusetts law.