The issue of international child abductions by parents is a growing problem in the US. According to the US Department of State, reported abductions by parents in the context of child custody disputes have increased by a factor of almost three in the past decade. This rise in parental abductions is a logical outgrowth of multi-national marriages and, by extension, divorces. The US Governmental response to this problem has been limited and “left-behind” parents have sometimes sought to make airlines responsible for preventing abductions. Some parents have commenced litigation in US courts to impose civil liability upon commercial airlines for international parental child abductions. Such litigation has been consistently resolved in favor of the airline, as typified by the recent appellate decision in Bower v. El-Nady.
The scepticism of US courts for such claims is fortunate from the perspective of the airlines and their insurers; if courts were to recognize such claims, airlines could face significant liability exposure in the US. As any parent would appreciate, the value of a child’s companionship is incalculable, and the loss of that relationship is unimaginable. Of course, this has not stopped the efforts of plaintiffs’ attorneys to value the relationship in monetary terms. For example, in one case – Pittman v Grayson – a New York jury awarded the “left behind” parent USD 15 million, payable by the airline, although that judgment was later overturned.
Notwithstanding these successes, airlines continue to face pressure to respond to the government’s failure to address the underlying problem. Just as the problem of international child abduction will likely not go away anytime soon, so too will US litigation against airlines for their unwitting roles in such abductions.
In the US, state courts are tasked with resolving child custody disputes between parents. They do so primarily by issuing court orders, ideally in the child’s best interests, that pertain to the child’s upbringing. Determining where the child will reside, and where the child may (and may not) travel, are fundamental to such child custody orders. Court orders prohibiting parents from travelling internationally with their children are common, so common that many US family courts automatically – without a hearing and even without a Judge’s signature – order both parents to refrain from removing their minor children from the geographic boundaries of the state when a parent commences a divorce or paternity action.
Unfortunately, child custody orders are among the most frequently disobeyed orders issued by US courts. Examples abound of parents abducting their children in violation of a court order. While the US Government has implemented efforts to limit parental child abductions – for example, through the requirement that both parents consent to the issuance of a child’s passport and Department of Justice AMBER alerts distributed to the Transportation Security Administration in verified cases of child abduction – those efforts have inherent limitations and, as a fundamental matter, the US Government essentially has no centralized controls for gathering child custody data and preventing “at-risk” children from leaving the US.
Claims against airlines for parental child abductions are relatively rare, and there are few recently reported cases in US courts that involve the issue. To date, all reported decisions correctly conclude that airlines are not liable for this type of claim. US courts have rejected these claims on two primary grounds. First, courts have concluded that a
commercial airline has no legal duty to determine whether a parent is transporting his or her child out of the US in violation of a child custody order. Second, courts have determined that the matter is preempted by the Airline Deregulation Act of 1978 (“ADA”), which prohibits states from enforcing any law “relating to a price, route or service” of any air carrier.”
Bower v El-Nady
The legal issues involved in these cases are typified in Bower v El-Nady, the most recent US federal appellate court decision in this area. In Bower, the First Circuit Court of Appeals affirmed the entry of summary judgment in favor of EgyptAir and dismissed a claim by a “left-behind” father whose two minor sons flew from the US to Egypt with their Egyptian-born mother in violation of a family court custody order.
The father’s efforts in the Egyptian courts to secure the return of the children to the US were unsuccessful and the mother and children remained in Egypt. The father then sued the mother and EgyptAir in the US, claiming that the circumstances surrounding the mother’s travel with her children were so unusual that EgyptAir should have prevented the children’s travel. Specifically, the father claimed that the mother and the children traveled pursuant to one-way tickets; the mother used cash to purchase the tickets (costing almost USD 10,000) at the airport terminal on the same day as the flight and the children’s last names were different from the mother’s last name.
The District Court dismissed the case on summary judgment, holding that EgyptAir did not owe the father any duty of care because he did not purchase a ticket from EgyptAir, nor did he have any relationship – contractual or otherwise – with the airline. The District Court, however, did rule that plaintiff’s negligence claims were not preempted by the ADA because such claims did not relate to the “price, route or service” of EgyptAir.
Plaintiff appealed and the First Circuit Court of Appeals affirmed the dismissal, albeit on different grounds than those articulated by the District Court. Specifically, the First Circuit agreed with EgyptAir that the District Court erred in finding that plaintiff’s claims were not preempted by the ADA. Because plaintiff’s claims essentially challenged the ticketing, check-in and boarding procedures of EgyptAir, the First Circuit held that plaintiff’s claims were sufficiently related to the “service” of an air carrier that they were preempted by the ADA. Because the claim was preempted, there was no need for the court to reach the issue of whether EgyptAir owed a duty to prevent parental kidnapping.
Prior to the recent Bower decision, other US courts have consistently dismissed similar parental abduction claims brought against airlines. These cases include Pittman v Grayson from the Second Circuit Court of Appeals, Braden v All Nippon Airways Co., Ltd., an intermediate appellate decision in California state court, and Ko v Eva Airways Corp from the District Court for the Central District of California.
Notwithstanding, civil actions against airlines by “left-behind” parents are likely to continue. The US Government’s efforts to solve the underlying problem have been limited. International child abductions will likely continue, as will litigation in US courts arising from such abductions. However, airlines and their insurers can take some comfort in the fact that US courts to date have correctly recognized that commercial airlines owe no duty to prevent their passengers from abducting their children and, furthermore, that claims by the “left behind” parent are directly related to an airline’s “service” and are, therefore, preempted by the ADA.