When a parent steals a child away: child abductions across international borders are increasing, leaving many bereft parents scrambling for help from legal and diplomatic authorities. Follow these steps to help clients locate missing children and bring them home.
In January 200l, Esteban moved to Mexico to assume a temporary position as assistant vice president of Central American operations for his employer, Cignus PetroChemical Co., on a two-year contract. Five months later, Juliana and the children left North Carolina to join him. They occasionally returned to North Carolina, each parent having signed permission forms to travel independently with the children.
Toward the end of 2002, Esteban became secretive and verbally abusive. On the advice of a lawyer in Mexico, Juliana hired a private investigator, who produced evidence that Esteban was using drugs and frequenting prostitutes. The marriage ended, and Juliana left Mexico with the children in December 2002.
Shortly after Juliana returned to North Carolina, Esteban came to the United States without her knowledge. On February 10, 2003, he picked up the two youngest children--Isabelle and Anna--from day care and fled with them to Mexico. Unable to locate Esteban or the children, Juliana began a desperate search for them in Mexico and initiated a Hague Convention application for her daughters' return to North Carolina.
Juliana's case is not unusual. The U.S. Department of State reports that, since the late 1970s, at least 16,000 children were either abducted from the United States or prevented from returning to this country by one of their parents. (2)
The Internet and e-mail have helped eliminate many barriers to international communication. As a result, the number of international marriages is on the rise. The surge has been paired with an increase in international child abductions when those marriages end. (3)
A stunned parent can face significant obstacles to locating and recovering a child. He or she often lacks sufficient funds to pay for assistance in investigating the abduction or tracing the child's location, and the parent may encounter difficulties with foreign laws and officials--including judges who are inexperienced in handling international abduction cases or law enforcement agencies that fail to respond adequately. (4) This parent will look to his or her lawyer for legal advice on how to locate the child and secure the child's return.
The Hague Convention
The United States and other countries implemented the Hague Convention on the Civil Aspects of International Child Abduction in 1980 "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence, as well as to secure protection for rights of access." (5) Congress adopted procedures in 1988 to implement the Hague Convention by enacting the International Child Abduction Remedies Act (ICARA). (6)
The Convention's signatory countries have agreed that a child who has been wrong-fully removed to, or retained in, another country in violation of a parent's custodial rights must be returned to the country of his or her "habitual residence," which is determined on a case-by-case basis. (7) However, if the parent submits the application more than one year after the abduction or unlawful retention, a court in the responding country may determine that the child is so settled in the new country that he or she should not be returned. Further, if the parent or agency opposing the return demonstrates facts supporting one of four of the following exceptions, the judicial or administrative authority is not required to return the child:
* The person seeking the return of the child did not have rights of custody (as defined by the Convention) at the time of the child's wrongful removal or retention.
* He or she consented to or acquiesced in the removal or retention.
* There is a grave risk that returning the child will cause physical or psychological harm or place the child in an intolerable position.
* The child objects to being returned and is of sufficient age and maturity that his or her views should be taken into consideration. (8)
The first thing you should do for a client whose child has been abducted to, or retained in, a foreign country that is a signatory to the Hague Convention is report the abduction to the State Department's Office of Children's Issues (CA/OCS/CI), which serves as the United States' "central authority" under the Hague Convention. (9) Every signatory country has a central authority--an agency designated by the government to discharge the duties imposed by the Convention. (10)
In most cases, you would report a child abduction or wrongful retention to the CA/OCS/CI by submitting an Application for Assistance under the Hague Convention on International Child Abduction (Form DS-3013), along with the country-specific requirements. (11) But not all responding countries accept this form. For example, Germany requires parents to complete its own application, in both English and German. Some countries require translation of all English-language documents into their own language. Check the State Department Web site, which lists the specific requirements of more than 50 countries. (12)
The CA/OCS/CI will forward the application to the central authority of the country where the child was allegedly taken or unlawfully retained. From this point on, the CA/OCS/CI acts as an intermediary between your client and the responding country's central authority. The CA/OCS/CI does not act as a party in any legal proceedings; it can only facilitate the commencement of legal proceedings with the goal of obtaining the child's return. (13)
Tell your client that the waiting period following submission of the application may be long, depending on how the foreign country's central authority and courts process the case. In the interim, the client can tap into resources offered by the Office of Children's Issues. It can work with the embassy or consulate of the responding country to locate the child, make visitation arrangements, help find an attorney in the foreign country who does Hague Convention work, monitor administrative or judicial proceedings, and facilitate the parent's access to local officials or contact them directly on the parent's behalf.
Here is how the process worked in Juliana's case:
Immediately after Esteban abducted Isabelle and Anna, Juliana consulted a lawyer experienced in international child abduction, the Hague Convention, and ICARA. Mexico became a signatory to the Hague Convention in 1991, so Juliana initiated a petition for the return of the children by completing the CA/OCS/CI application form she obtained through the State Department Web site. She submitted English and Spanish versions, as Mexico requires, and the CA/OCS/CI transmitted her application to the Mexican central authority in April 2003.
While the CA/OCS/CI can assist clients pursuing recovery of an abducted child, you can also initiate a judicial Hague proceeding by filing a petition for relief in a state or federal court that has jurisdiction over such action and is authorized to exercise it where the child is located. (14) The issue before that court would not be the best interest of the child, but rather which jurisdiction should hear the custody matter--the jurisdiction from which the child was abducted, or the jurisdiction to which the child was taken and is now located.
To prevail, the petitioning parent must prove by a preponderance of the evidence that:
* the child was abducted from the country of his or her habitual residence.
* the petitioning parent had either sole or joint legal custody of the child at the time of the wrongful removal.
* the petitioner was exercising those rights at the time of wrongful removal. (15)
There is no fixed period of time that a child must live in a country for it to be considered his or her habitual residence. The outcomes of cases addressing the issue have differed substantially. (16)
A respondent who opposes the return of the child has the burden of proving the following by clear and convincing evidence:
* The petitioner failed to act for more than one year.
* The person caring for the child at the time of wrongful removal was not actually exercising rights of custody--as defined by the Convention--at that time.
* There is a grave risk that returning the child would expose him or her to physical or psychological harm or place the child in an intolerable situation. (17)
If the child objects to returning and has attained an age and degree of maturity such that his or her views should be considered, the court may do so.
If your client's child has been taken to a country that is not a signatory to the Hague Convention, or if the facts of the case fall outside its parameters, the client can seek enforcement of a U.S. custody order in the country where the child has been taken. While a U.S. custody order is not binding in a foreign country, it can have some persuasive power with local authorities.
Your client will also need to obtain legal counsel in that country. Contact CA/OCS/CI for information on legal practices and customs, authentication of documents, obtaining service of process, and a list of attorneys who may be able to assist your client. Advise your client that a foreign country's domestic relations laws, cultural norms, and tradition of comity with the United States will ultimately determine whether a U.S. order will be enforced.
Passport alert program. Tell your client about the State Department's Children's Passport Issuance Alert Program, which allows parents to request notification before a U.S. passport is issued in the child's name. If an abducted child does not have a passport or has an expired passport, the State Department will alert the requesting parent if the child applies for a passport in the United States or with U.S. consulates in foreign countries. The request will remain valid until the child turns 18. Keep in mind that a U.S. passport for a child under the age of 16 expires five years from date of issuance.
In July 2001, the State Department enacted new passport regulations requiring children under 14 to appear in person with their parents--who must present identification--to apply for a passport. Both parents must consent to the issuance or renewal of the passport unless the parent applying has sole legal authority to obtain the passport without the consent of the other parent.
For minors ages 14 to 17, the child must appear in person, and parental consent may be requested. If the child does not have proper identification, the parent must accompany the child, present identification, and cosign the passport application.
If the State Department alerts your client that someone has attempted to obtain a U.S. passport for his or her abducted child through a U.S. consulate in a foreign country, you should immediately contact the CA/OCS/CI to seek help in informing local law enforcement officials or the central authority of the responding country so they can take steps to locate the child. Keep in mind that the program does not provide any means of monitoring whether a child is taken out of the United States or enters a foreign country if the child has valid travel documents.
National Center for Missing and Exploited Children. This organization transmits images and information on missing-child cases via an online service to clearinghouses in 50 states, the District of Columbia, and Puerto Rico; the Royal Canadian Mounted Police; New Scotland Yard in the United Kingdom; the Belgian Gendarmerie; the Netherlands' Politie; the Australian National Police; SOS Crianca in Brazil; the international police organization known as Interpol; the U.S. Secret Service Forensic Services Division; the State Department; and the U.S. Customs Service. (18)
National Crime Information Center. Your client can file a missing-persons report with the local police department and request that it enter the child's name and description into the missing-persons section of the National Crime Information Center database. The local police can then request through Interpol that police in the country where the child is believed to have been taken launch their own search.
Federal Parent Locator Service. On request, the Office of Child Support Enforcement, a part of the U.S. Department of Health and Human Services, will use its Federal Parent Locator Service to search for parental abductors. (19) The request must be made by a person authorized to enforce a custody order, such as a judge or a police officer. (20)
Political and cultural differences between countries compound the obstacles parents face when trying to locate and retrieve their children, and time is critical, both in finding a child and filing a petition under the Hague Convention. When you represent a distraught parent who has lost a child to international parental abduction, always be completely honest: Explain that because the case involves the laws and culture of another country, there are no guarantees of the child's return. But assure your client that you will help him or her do everything possible to bring the child home.
Juliana, unfortunately, is still separated from her two daughters:
Juliana's lawyer discovered that family court judges in Mexico have jurisdiction to hear Hague Convention cases. However, because the whereabouts of Juliana's children were unknown when she submitted her application, the Mexican central authority had to first submit a request to the appropriate police agency to locate the children. Juliana was shocked to learn that the courts would not consider her petition until the police found her daughters.
Her attorney told her that the Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, periodically issued by the State Department, categorized Mexico as "not fully compliant" or "noncompliant" with the Hague Convention--citing habitual problems with the inability of the local police to locate missing children. (21)
Juliana redoubled her own efforts to locate her children in Mexico and found Isabelle and Anna nine months after she hired local investigators to search for them. Her case was sent to the family court in the jurisdiction where the children live with their father, but the court has not yet acted on her application and has even denied her request to visit the children. Juliana has taken all the official steps she can take and is now just waiting for her case to be heard.
In 2003, when Juliana submitted her application, the CA/OCS/CI knew of 904 open abduction cases and 156 access cases initiated by U.S. parents seeking the return of or access to, a child currently located in a foreign country. (22) Juliana has not seen her daughters in more than three years.
Juliana's case highlights the sometimes unavoidable obstacles on a parent's path to recovering a child abducted and taken across international borders, but not all parental abductions have the same outcome. Attorneys can help a client achieve the best possible result by guiding him or her through the steps required under the Hague Convention and advising the client about alternative resources. While recovery of children kidnapped internationally can be difficult and sometimes impossible in certain countries, many cases have been brought before the Hague Convention in which the kidnapped children were returned and families were reunited.
Precautions against child abduction
Clients married to citizens of other countries should take precautions in the event of marital discord to avoid the possibility that their child could be taken abroad without their consent. Advise your client to take these steps, recommended by the State Department's Bureau of Consular Affairs on International Child Abduction:
* keep a current list of friends, business associates, and relatives who live in the foreign country--including mailing addresses, phone numbers, and e-mail addresses
* have current photographs of his or her children and spouse on hand
* maintain up-to-date records of personal information pertaining to the child's other parent--including numbers for his or her passport, Social Security, bank accounts, credit cards, driver's license, and license plates
* teach the kids how to use a phone and practice making collect calls.
--CAROLE S. GAILOR AND CATHY C. HUNT
(1.) The facts in this example are based on actual cases, but the parties' names and other factual details have been changed.
(2.) U.S. Dept. of State, 2003 Report to Congress on International Child Abductions in Response to the Statement of Managers Accompanying F-103 Omnibus Appropriations Bill P.L. 108-7, http://travel. state.gov/family/abduction/hague_issues/ hague_issues_573.html (last accessed Nov. 2, 2006).
(3.) Nigel Lowe, Report, International Forum on Parental Child Abduction, Hague Convention Action Agenda (Apr. 1999), http://pact-online.org/pdf/ forum_report.pdf (last accessed Nov. 2, 2006); Press Statement, Maura Harty, Assistant Secretary for Consular Affairs, Canadian Embassy in Tokyo, Harty on Hague Convention on the Civil Aspects of International Child Abduction (Dec. 3, 2005), http://tokyo.usembassy.gov/e/p/tp-2005120371.html (last accessed Nov. 2, 2006).
(4.) Janet Chiancone et al., Issues in Resolving Cases of International Child Abduction by Parents, Juv. Just. Bull (Dec. 2001), www.ncjrs.gov/pdf-files1/ojidp/190105.pdf (last accessed Nov. 2, 2006).
(5.) Hague Convention on the Civil Aspects of International Child Abduction, Preamble (Oct. 25, 1980), http://travel.state.gov/family/abduction/ hague_issues/hague_issues_565.html (last accessed Nov. 2, 2006) [hereinafter Hague Convention].
(6.) 42 U.S.C. [section] 11601(b)(1) (West 1998).
(7.) Hague Convention, supra n. 5, Preamble.
(8.) Id. at ch. III, art. 13.
(9.) U.S. Dept. of State, Children, http://travel. state.gov/family/about/faq/faq_602.html (last accessed Nov. 2, 2006). The office's long acronym is derived from its status as part of the State Department's Bureau of Consular Affairs; the office comes under the Directorate of Overseas Citizen Services.
(10.) Hague Convention, supra n. 5, ch. II, art. 6.
(11.) U.S. Dept. of State, Applications for Assistance under the Hague Convention on International Child Abduction, http://travel.state.gov/pdf/ DS-3013.pdf (last accessed Nov. 2, 2006).
(12.) U.S. Dept. of State, Country-Specific Abduction Flyers, http://travel.state.gov/family/ abduction/country/country_486.html (last accessed Nov. 2, 2006).
(13.) Hague Convention, supra n. 5, ch. II, art. 7(f).
(14). 42 U.S.C. [section] 11603(b) (West 1998).
(15.) Id. [section] 11603 (e) (2) (A).
(16.) Continuous periods of at least one year have almost uniformly been held to constitute habitual residence, but depending on the facts of the case, habitual residence could also be established in a shorter period of time. See Feder v. Evans-Feder, 63 F.3d 217,224 (3d Cir. 1995); Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) ; Delvoye v. Lee, 224 F. Supp. 2d 843 (D.N.J. 2002), aff'd, 329 F.3d 330 (3d Cir. 2003).
(17.) Hague Convention, supra n. 5, ch. II, arts. 12-13.
(18.) International Photo Distribution, www. missingkids.com; select "site search," search "international photo distribution" (last accessed Nov. 2, 2006).
(19.) Guidelines for Using the Federal Parent Locator Service, www.missingkids.com/en_US/ print_friendly/JIC_FPLS.htm (last accessed Nov. 2, 2006).
(20.) U.S. Dept. of State, Bureau of Consular Affairs, How to Search for a Child Abducted Abroad, http://travel.state.gov/family/abduction/ resources/resources_550.html (last accessed Nov. 2, 2006).
(21.) U.S. Dept. of State, Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, http://travel.state. gov/pdf/2006_Hague_Compliance_Report_doc041806.pdf (Apr. 2006) (last accessed Nov. 2, 2006).
(22.) U.S. Dept. of State, 2003 Report to Congress on International Child Abductions in Response to the Statement of Managers Accompanying F-103 Omnibus Appropriations Bill P.L. 108-7, supra n. 2.
CAROLE S. GAILOR and CATHY C. HUNT are partners at Gailor, Wallis & Hunt in Raleigh, North Carolina.
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|Author:||Hunt, Cathy C.|
|Date:||Dec 1, 2006|
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