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Custody bill aims to protect kids

Kidnapping cases show a vague interpretation of international law

By Jana Donovan
For The Prague Post
July 25th, 2007 issue

COURTESY PHOTO
Marcela Krajníková, center, was convicted of kidnapping her children, Sofie and Lucas, from Argentina.
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It has been more than a year ago now since Marcela Krajníková’s nightmare started.
In May 2006, state workers took away her kids and sent them back to their father in Argentina.
The scene of the desperately crying 6-year-old Sofie, who had to be separated from her mother by force, was broadcast by Czech TV last year. Lucas, 9, was taken away without being given a chance to say goodbye to his mother.
A court in Litoměřice ruled Krajníková was guilty of kidnapping the kids from her husband by returning to Roudnice nad Labem, north Bohemia, from Argentina, where the family had lived.
Krajníková says her husband had given her permission to leave with the children. But her husband argued that their agreement did not allow her to leave with them permanently.
The high-profile case shone a spotlight on the gaps in international child custody laws. But perhaps more importantly for families fighting these battles, the case demonstrated how difficult such fights are for children. To address this sensitive issue, the Justice Ministry has now come up with a new draft law aimed at protecting kids in such situations.
“The most important thing must be the children’s interests, and not a formal decision by the courts,” says Justice Minister Jiří Pospíšil, who wants to submit the proposal for parliamentary debate this fall.
Vague interpretations
Due to the growing number of marriages between Czechs and foreigners, there have been, according to the ministry, 70 cases of parental kidnapping submitted to courts from 1998. So far, 10 have ended with the kids being sent back to their foreign parent abroad.
Many of the cases are still pending. In such cases, courts apply the Hague Convention on child abduction of October 1980. The convention ensures the rights of custody of one country are respected in another country. Krajníková’s husband was able to argue that, as joint-custody holder of the children, she had breached his custody rights.
But Monika Šimůnková, a lawyer for the Naše dítě foundation to help children, says the convention makes a vital exception.
She says children can be returned “only if they are not in danger of physical or psychical hardship,” something many children no doubt experience after protracted legal fights and moves abroad.
“Our courts simply don’t know how to interpret the Hague convention, and I think they are afraid not to send children back,” she says.
According to the lawyer, the main problem is that it takes years for local courts to reach a decision. After such a long time, it becomes extremely stressful for a child to be sent abroad to the second parent.
“One year in the life of a child means so much more than one year in a life of an adult,” Šimůnková says.
To avoid that, the ministry wants to establish a specialized court in Brno that would have six judges trained exclusively in dealing with cases of parental kidnappings.
“It’s a very complicated issue involving international law. Not every judge can be an expert,” Pospíšil says.
Pospíšil wants to set a time limit of six months for the court to come to a decision. The final decision should be based on psychological analyses, and, in cases of older kids, on their own wishes.
“If it regards children, it is necessary to make decisions fast and with priority,” the minister says.
A “contiguous” judge will be appointed to maintain communication between Czech and foreign judges. And the court will be obliged to learn about the social environment to which a kid might be sent.
In order to lower the number of cases involving parental kidnapping, the Justice Ministry has also issued information leaflets that are given to Czechs who marry a foreigner. The leaflet informs people about the legal consequences of taking kids away from the other parent.
Pospíšil also stresses the importance of mediators — social workers who, according to the new proposal, will help parents come to an agreement instead of going to court.
For Krajníková, it all sounds fine, but much too late.
“In my case, the courts did not have any consideration for the children, they did not take into an account the psychologists’ analysis, they did not investigate the conditions my husband lives in,” Krajníková says.
Her husband at first refused to come to take their kids after the court ruling, and it took another six months for him to collect Sofie and Lucas. The kids saw their father just twice during their four years here.
Krajníková says Sofie and Lucas are unhappy and neglected by their father, who has denied such charges.
Krajníková can’t hold back the tears when talking of her kids. “My little girl is 7 years old but she grew so much older in one year. She will never in her life be able to trust anyone after everything that has happened to her.”
Zuzana Baudyšová, director of Naše dítě, says she cannot judge where Krajníková’s kids are better off because she has not spoken with them. “But the execution was just awful,” she says.
Baudyšová has raised a fund that has allowed Krajníková to hire a lawyer in Argentina and covers her expenses when she visits her children. Krajníková and her husband are currently in the process of divorcing and a legal process regarding guardianship will follow.
“Unfortunately, all this is happening in Argentina, so it will be hard for Krajníková to get her children back,” says Šimůnková, who believes the Argentinian courts will argue that domestic law was violated, and rule in favor of the husband.
Ahead of the draft law coming up for debate, a move toward change could be under way. A groundbreaking decision was made in July this year, when the Supreme Court in Brno knocked down a regional court decision and allowed 4-year-old Adrian Santana to remain in the country instead of being sent to his father in California.
In another prominent case, a court originally sent Sara Barao back to her father in Portugal, but with the girl suffering away from home in a strange environment the couple agreed after six months to return the girl to the Czech Republic.
Pospíšil says this kind of communication is ideal. “It’s in the best interest of the kids if parents come to an agreement themselves,” he says.
But, in matters of the heart, agreeing is sometimes just not possible.

Jana Donovan can be reached at news@praguepost.com


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