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By: Cole Benson, Volume 105 staff member

The case of United States v. Mobley was decided by the Tenth Circuit on August 21, 2020.[1] Mobley held that defendant parents who are found guilty for international kidnapping are not liable for restitution under 18 U.S.C. § 3663A(b)(4) when the other parents incur attorney’s fees in their attempts to recover their children who have been illegally taken and retained abroad.[2] This Post argues that the Mobley decision is concerning because it conditions restitution for attorney’s fees on participation in criminal proceedings, which can leave parental victims of international child kidnapping financially ruined when their children are taken to countries who are non-signatories of the Hague Convention. Eighteen years prior to Mobley, the Ninth Circuit in, United States v. Cummings, held that attorney’s fees relating to child retrieval were, indeed, recoverable under § 3663A(b)(4).[3] However, this Post argues that if future circuits are presented with this statutory question, they will likely side with Mobley due to the Supreme Court’s interpretation of § 3663A(b)(4) in Lagos v. United States on May 29, 2018.[4] This is a harrying prospect because the case in Lagos did not involve international parental kidnapping, and, therefore, the Court likely did not consider the implications of its decision for this unique context of litigation.


18 § U.S.C. 3663A(b)(4) permits victims to recover restitution for “lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.”[5] Whether this language applied to attorney’s fees in the attempts to recover children kidnapped abroad was first addressed in Cummings.[6] Cummings involved a plaintiff’s attempt to recover her children after they were unlawfully removed and retained by their father in Germany.[7] That action incurred attorney’s fees of $14,085.50 in state civil and international proceedings.[8] Because fees could be recovered as restitution as long as they are “based on losses directly resulting from the defendant’s offense,”[9] Cummings held that the plaintiff could be reimbursed for attorney’s fees because there would have been no need to engage in proceedings to recover the children if the defendant had not removed them from the country.[10] However, the weight of the Cummings decision is diminished due to the Supreme Court’s subsequent interpretation of § 3663(b)(4) in Lagos.[11]

Lagos is a crucial decision that involved the Supreme Court providing its own interpretation of § 3663A(b)(4). The Supreme Court interpreted the words “investigation” and “proceedings” to refer only to criminal proceedings and government actions.[12] The Court simply assumed that the word “prosecution” in § 3663A(b)(4) referred to a government’s criminal prosecution.[13] Furthermore, the Court reasoned that because the word “investigation” is directly linked to “prosecution” with the word “or” and because the two words share the article “the” that “investigations” as used in § 3663A(b)(4) must also refer to investigations of a criminal nature.[14] Similarly, the Court also held that the word “proceedings” must also refer to criminal proceedings.[15] Although Lagos dealt with the issue of fraud as opposed to international parental kidnapping,[16] the decision was extremely influential on the Tenth Circuit’s opinion in Mobley.[17]

Mobley analyzed the previous decision of a district court to award a parent $18,100 in restitution for attorney’s fees he incurred in the attempt to retrieve his children unlawfully taken and retained in Russia.[18] The Tenth Circuit held that such fees are not recoverable because § 3663(b)(4) does not apply to expenses that are merely related to the offense.[19] Using the language from Lagos, the Tenth Circuit held that the attorney’s fees could not be awarded because there was no evidence that they were related to the parent’s “participation” in the government’s investigation or prosecution of the defendant.[20] The court reasoned that the plaintiff’s attempt to secure his children’s return did not assist the government in its investigation or prosecution of the defendant.[21] In the eyes of the court, the government already knew that the girls were in Russia and did need to return them to the United States to obtain a conviction against the defendant.[22] Overall, future circuits will likely adhere to the interpretation of the Supreme Court and reach a similar conclusion to Mobley when applying § 3363A(b)(4) to attorney’s fees in international parental kidnapping cases. This approach will have dire ramifications for parents whose children are unlawfully taken to Non-Hague countries.


A problematic aspect of the Mobley decision is its oversight regarding the diminished control of criminal courts in acquiring children unlawfully taken abroad. Federal prosecutors generally have no influence over the decisions affecting children retained abroad or the foreign authorities making those decisions.[23] Therefore, there is “no certain mechanism by which a U.S. criminal court can order the return of a child located overseas.”[24] The compelled return of kidnapped children is often handled by the stateside parent filing a civil petition under the Hague Convention on the Civil Aspects of International Parental Child Abduction.[25] The United States has enacted a statute to help parents recover for attorney’s fees enacted pursuant to the Hague Convention,[26] but not all countries have signed this treaty.[27] As of July 2019, only 101 nations were signatories of the Hague Convention,[28] while the United States recognizes 195 countries across the globe.[29] Parents whose children are taken to non-signatory counties by the other parent may be left to fend for themselves. These parents will receive limited aid from the government,[30] and will have to seek out attorneys that are knowledgeable about foreign laws relating to child retrieval,[31] which may result in substantial fees unless they can obtain pro-bono services.[32]

Parents may turn to the legal systems of non-signatory countries, but these systems will be even less helpful.[33] For example, in China, which has not yet ratified the Hague Convention, there are no statutory provisions regarding legal assistance for parties involved in international parental kidnapping.[34] It is unlikely that parents would be eligible for legal aid in an attempt to recover their children and bring them back to the United States.[35] Another example can be seen in Azerbaijan, another non-signatory of the Hague Convention.[36] One study on Azerbaijani law was unable to uncover any specific laws that involved international parental child abduction or legal assistance for those involved.[37] In addition, for minor children residing within its borders, Azerbaijan requires consent from both parents or the child’s legal representative before such children can leave the country for permanent residence.[38] Therefore, when parents unlawfully take their children to non-signatory countries, the left-behind parents will face numerous obstacles in getting their children back and may have to pay extensive fees for private representation.[39] An example is the story of Michelle Littleton who had “put her life on pause . . . [to] save money to pay for court fees,” when her ex-husband unlawfully took her three children to Lebanon, another non-signatory nation, in 2017.[40] At one point in time, Littleton was working thirty hours of overtime in order to pay for her Lebanese legal fees which as of 2018, she expected to reach over $20,000. Stories such as Littleton’s exemplifies the financial strain that left-behind parents can experience when their children are taken abroad to Non-Hague countries.

Overall, future circuits that are presented with the question of whether § 3663(b)(4) applies to attorney’s fees for attempts to recover children in international parental kidnapping cases will likely side with the Mobley court in light of the Supreme Court’s statutory interpretation in Lagos. This is concerning because, as explained above, stateside parents can be stretched financially in trying to obtain legal representation for their attempts to recover their children.[41] Interpreting § 3663(b)(4) as inapplicable to attempts to recover children in civil or international proceedings will take away one possible route to restitution for parents who incur legal fees in their attempt to recover children residing in countries who are non-signatories to the Hague Convention. It is an unfortunate state of affairs where one parent’s ability to be made financially whole depends on whether or not one country has ratified a particular treaty. The left-behind parents that are fortunate enough to recover their children have already been through an excruciating ordeal, and denying restitution for attorney’s fees can leave a lingering effect from their child’s kidnapping. Legal reform is needed, or relief through other laws must be identified. Parents should not be forced to undergo financial hardship with no recourse for restitution for the attempt to recover their children in foreign nations.


[1] 971 F.3d 1187 (10th Cir. 2020).

[2] Id. at 1207.

[3] United States v. Cummings, 281 F.3d 1046, 1052 (9th Cir. 2002).

[4] 138 S. Ct. 1684 (2018).

[5] 18 U.S.C. § 3663A(b)(4) (2012).

[6] Cummings, 281 F.3d at 1051–52.

[7] Id. at 1048.

[8] Id.

[9] United States v. Sablan, 92 F.3d 865, 870 (9th Cir. 1996).

[10] Cummings, 281 F.3d at 1052 (holding that the attorney fees that the plaintiff incurred in an attempt to regain custody of her children were a direct and foreseeable result of the unlawful taking of the children to a foreign nation).

[11] Lagos, 138 S. Ct. at 1688.

[12] Id.

[13] Id.

[14] See id.

[15] Id.

[16] Id. at 1687.

[17] See 971 F.3d 1187, 1207 (10th Cir. 2020).

[18] Id. at 1206.

[19] Id.

[20] Id. at 1207.

[21] Id.

[22] Id. at 1208.

[23] International Parental Kidnapping, U.S. Dep’t of Just. (Aug. 17, 2020), [].

[24] Id. (citing Jacqueline D. Golub, The International Parental Kidnapping Crime Act of 1993: The United States’ Attempt to Get Our Children Back – How Is It Working?, 24 Brook. J. Int’l L. 797 (1999)).

[25] Id.; Hague Convention on Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89.

[26] See 22 U.S.C. § 9007(b)(3) (1988).

[27] Id.

[28] Vanished Without a Trace – Managing Non-Hague Cases, Withersworldwide (Oct. 1, 2019), [].

[29] Ellen Kershner, How Many Countries Are There in the World?, WorldAtlas (Aug. 26, 2020), [].

[30] See How the U.S. State Department Can Help If Your Child Is Abducted Overseas, Travel.State.Gov., [] (Sep. 28, 2020) (explaining that the State Department cannot pay fees associated with litigation or provide legal advice or recommendations about how to proceed).

[31] See International Child Abduction: A Guidebook for Left-Behind Parents,, [] (advising that Canadian parents who have their children taken to Non-Hague countries might be required to obtain the services of an attorney in both the country that the child is obtained but also in Canada).

[32] See generally Janet Chiancone, Linda Girdner, & Patricia Hoff, U.S. Dep’t of J., Issues in Resolving Cases of International Child Abduction by Parents 6 (2001), [] (discussing a survey of left-behind parents that revealed that those surveyed spent an average of $33,500 for the search and recovery efforts for their children, while a quarter of these parents spent $75,000 or more).

[33] See Glob. Legal Rsch. Ctr., Libr. of Cong., Provisions on Child Abduction in Non-Hague Countries 1 (2015),

[34] Id.

[35] See id.

[36] See id. at 5.

[37] Id.

[38] Id.

[39] See supra note 32.

[40] Isadora Rangel, Merritt Island Mom Fights to Bring Back Children Abducted to Lebanon By Their Dad – in 2017, Fla today (Feb. 20, 2018), [].

[41] See supra note 32.