Prompt and effective advice in cases involving potential child-snatching is essential in the legal assistance office. In order to fully understand the remedies that are available in such cases, reference must be made to the Uniform Child Custody Jurisdiction Act (N.C.G.S. Chapter 50A) and the Federal Parental Kidnapping Prevention Act, (28 U.S.C. 1738A). Additionally, the legal assistance attorney should be familiar with N.C.G.S. 14-320.1, providing for felony treatment of child-snatching in North Carolina, and AR 500-40, providing for the return of servicemembers facing civilian charges. The attached article [APPENDIX 1] covers counseling techniques and substantive law for the legal assistance attorney in this area. The outline that follows [APPENDIX 2] and the article following that [APPENDIX 3] are more detailed analyses of the resources, issues and problems that are important in this area.
APPENDIX 1: CHECKLIST ON CHILD-SNATCHING
[reprinted from ABA Legal Assistance Newsletter, No. 27 (Fall 1986)]
by Mark E. Sullivan
When Sergeant and Mrs. Smith separated, Mrs. Smith became increasingly concerned about SGT Smith's threats to kidnap the children if she demanded "too much child support." She comes to you for advice and assistance to stop a possible child-snatching situation. Fast action and competent advice are essential in such a situation. What should you advise? The following items cover some pointers, problems, answers and questions in this troublesome area.
1. In nearly all states, Mrs. Smith will need a court order, not an unincorporated private contract, often called a "separation agreement." Violation of contractual custody provisions may, perhaps, give rise to a remedy involving money damages for breach of contract or the tort of alienation o f affection. But does Mrs. Smith want money for the stealing of her children? No - she wants her children back! As a general rule, all of the effective remedies that Mrs. Smith will want to try to use depend on court orders and decrees, not private contracts.
2. You must advise Mrs. Smith that you cannot stop a child-snatching. You can try to give her as many remedies or preventive measures as possible, but no one can stop a kidnapping. As a practical matter, no court order or separation agreement can stop something from happening, but a well-drafted court order can be the first and most important step toward preventing a child-snatching and providing remedies allowing the return of a stolen child by a non-custodial parent.
3. Find out the facts about the threats alleged by Mrs. Smith. Is SGT Smith threatening to take the children "back home" to his parents, or to remove them overseas? Is he "on orders" overseas, and does he (or the children) have a passport? Do the children have their fingerprints on file or in Mrs. Smith's possession? Gathering all the facts (or as many as possible) at this point will be very helpful in deciding what kind of a court order Mrs. Smith needs and what specific clauses it should contain, as well as what interim preventive measures she should immediately undertake.
4. If SGT Smith is not now "on orders" overseas, he will need a passport for the children if he intends to take them overseas. If the court order provides specifically that the children may not be taken "overseas" or outside the United States, then some important remedies are available through the Passport Office in the Department of State if you do certain things. Quite briefly, the court order she obtains should specify the limitations of travel that you are contemplating and the names and dates of birth of each child, as well as each child's place of birth. You will also need to provide a certified copy of the court order, as well as information on the address and telephone number of the custodial parent (which can be in the form of a cover letter sent along with the court order). The address to which to send this is:
U. S. Passport Office - Legal Section
Department of State
Washington, DC 20520
5. In addition, it would be wise to advise Mrs. Smith to go ahead and obtain passports for the children at once and then keep these documents in her own safe deposit box or in some other secure place. This will make it much more difficult for SGT Smith to obtain passports when originals have already been issued.
6. Be sure to advise Mrs. Smith about the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), as well as the requirements and remedies in the Parental Kidnapping Prevention Act (PKPA) of 1980, 28 U.S.C. 1738A. See also Crouch, "International Child-Snatching," The Family Advocate, Vol. 9, No. 4 (Spring 1987); Hoff, "Federal Court Remedies in Interstate Child Custody and Parental Kidnapping Cases," Family Law Quarterly, Vol. XIX, No. 4, Winter 1986, p. 443 et seq.; Stotter, "International Kidnapping," The Compleat Lawyer, Vol. 2, No. 4, Fall, 1985, pp. 22-23; DeHart, International Enforcement of Child Support and Custody: Reciprocity and Other Strategies (1986, published by the American Bar Assn.); Hoff, Parental Kidnapping: How to Prevent an Abduction and What To Do If Your Child is Abducted (2d Ed., August 1985, published by the National Center for Missing and Exploited Children).
7. Also be sure to advise Mrs. Smith of the possible resources and assistance available through the National Center for Missing and Exploited Children, 1835 K Street, Suite 700, Washington, DC 20006. The Center's toll-free hotline number is 1-800-843-5678. Mrs. Smith should also be informed of the importance of registration of her court order under provisions of the UCCJA in her local jurisdiction and in any jurisdiction where SGT Smith presently resides or might reside in the future, as well as possible criminal remedies under state law.
8. Once you have done this, you have covered the basics. There is still a great deal to do in advising Mrs. Smith about the specific facts and state laws concerning her particular case. With this Checklist at your right hand, you have a good starting point for effective counseling on child snatching.
9. As an additional preventive measure, a certified copy of the custodial court order should be provided to each school which Mrs. Smith's children attend. Finally, the children should be taught how to telephone home, including the solicitation and use of operator assistance.
APPENDIX 2: PARENTAL KIDNAPPING--ARMY JAG SCHOOL OUTLINE
An Overview of Statutory and Regulatory Remedies
Part I: Army Guidance
Part II: DOD Guidance
Part III: State Law
Part IV: Federal Law
Part V: International Law
In domestic cases involving violations of court orders, see Parts I, III, and IV. In international cases involving violations of court orders, see Parts I, II, III, and V. In domestic cases where there is no court order, state law should be researched to determine if recognized parental rights have been violated and to determine if a court order can be obtained. If a child born out of wedlock is involved, also see Part I. In international cases where there is no court order, see Parts II and V.
Part I: Army Guidance
1) AR 608-99, "Family Support, Child Custody, and Paternity," 4 November 1985 (22 May 1987 UPDATE).
2) Arquilla, Family Support, Child Custody, and Paternity, 112 Mil. L. Rev. 17 (1985).
II. Parental Kidnapping.
A. Army Policy.
1) Soldiers are expected to comply with child custody orders.
2) Commanders are directed to assist in cases where soldiers have wrongfully taken or retained custody of a child. Para. 1-4e(10).
B. Abduction of a Child: to be a violation...
1) There must be a preexisting court order establishing custody rights in another individual, and
2) The soldier must know of its existence and act in disregard of its provisions. Para. 2-5a, 2-5b; see 112 Mil. L. Rev. at 56-57.
3) Exception: children born out of wedlock--the mother's custody rights are protected whether or not there is a custody order. Para. 2-5b.
C. Withholding, Detaining, or Concealing a Child: to be a violation...
1) A court order must have been issued giving the complaining party custody, and
2) The soldier continues to withhold, detain, or conceal the child after learning of the order. See 112 Mil. L. Rev. at 56-57.
D. Regulation applies to wrongful abduction, withholding, etc. of children-relatives of the soldier.
1) Natural and adopted children.
2) and wards...
3) and siblings...
4) and stepchildren (see para. 2-5c in the UPDATE).
5) who are unmarried and under 14 years old.
6) The regulation does not address situations where the soldier's spouse has abducted or withheld a child.
E. Joint Custody Decrees. See 112 Mil. L. Rev. at 57.
1) Violation of the regulation occurs despite a joint custody decree if the order gives each parent the exclusive right to custody or possession or visitation for specified periods and the soldier violates this provision.
2) Violation also is possible by wrongfully detaining or concealing the child to the prejudice of the other parent's legal rights as created by the joint decree.
F. Command Actions.
1) Inform the victim parent of soldier's port-call, future duty assignment, and/or child's general whereabouts.
2) May, after consultation with SJA, reveal soldier's home address.
3) Encourage soldier to return the child to the legal custodian.
a. --Caution: in cases where there is credible evidence of abuse or neglect, the commander may give the soldier a reasonable period of time to initiate judicial or other civil resolution of the issue.
a. The full range of administrative sanctions, including reprimands, unfavorable information in personnel files, bars to reenlistment, etc.
b. The regulation constitutes a lawful general order, and the wrongful abduction or detention of a child can be punished through an Article 15 or a court-martial.
1. --Exception: no judicial action if the soldier voluntarily returns the child within 96 hours of receiving a demand for the child's return.
III. Returning Soldiers to the U.S.
A. Reference: DOD Directive 5525.9 (see Part II of this outline).
B. The Army has not yet issued implementing guidance.
Part II: DOD Guidance
A. Section 721, National Defense Authorization Act, 1989, Pub. L. No. 100-456, 102 Stat. 2001 (1988).
B. DOD Directive 5525.9, 27 December 1988 (to be published at 32 C.F.R. Part 146).
II. DOD Policy.
1) The Directive promulgates DOD policy on complying with requests from civilian authorities for the return of DOD members from overseas location.
2) The Directive applies to members of the military, civilian employees, and family members:
a. Who are stationed overseas, and
b. Who have been:
1. Charged with, or convicted of, a felony in a U.S. court, or
2. Held in contempt of a U.S. court for failure to obey a court order, or
3. Directed by a U.S. court to show cause why they should not be held in contempt for failure to obey a court order.
3) Special rules apply if the subject is a member of the military who:
a. Has been charged with, or convicted of, a felony; or
b. Has been cited, or ordered to show cause, for failure to comply with a child custody order.
B. Command Actions.
1) Determine if the order was issued by a court of competent jurisdiction.
2) Seek to have the matter resolved to the satisfaction of the court without the need for the defendant to return to the U.S.
a. The command shall take no action without first affording the subject with the opportunity to produce evidence of legal efforts to resist the order or other legitimate cause for noncompliance.
b. If the head of the DOD Component determines that the subject's efforts warrant further delay, (s)he may grant a delay of up to 45 days before taking action.
1. --All such delays must be reported to DOD.
3) Take action as prescribed.
a. If the subject is a member of the Armed Forces and the order relates to:
1. A felony, or
2. A contempt action for the unlawful or contemptuous removal of a child from:
a) The jurisdiction of the court, or
b) The custody of a person awarded custody by court order:
3. --The member shall be ordered expeditiously to return to an appropriate U.S. port of entry (at government expense) IF the requesting civilian agency agrees to provide transportation (and an escort if desired) to the agency's jurisdiction), unless DOD grants an exception to this requirement.
b. If the subject is a member of the Armed Forces but the order does not relate to a felony or a contempt action arising from the unlawful or contemptuous removal of a child from the jurisdiction of the court or the custody of a person awarded custody by court order:
1. --The head of the DOD Component (or his or her designee) determines whether it is appropriate under the facts and circumstances of the case to return the member to the U.S.
c. If the subject is a DOD employee, then (s)he "strongly shall be encouraged to comply with the court order" (whether or not it relates to a felony or a child custody order). Failure to comply may result in loss of command sponsorship and be the basis for adverse personnel actions, including removal from federal service.
d. If the subject is a family member of a member of the Armed Forces or a DOD employee, (s)he "strongly shall be encouraged to comply with the court order" (again, whether or not it relates to a felony or a child custody order). Failure to comply may result in loss of command sponsorship for the family member.
I. Remedies for Parental Kidnapping.
A. Criminal Sanctions.
1) Many, but not all, states impose criminal sanctions for parental kidnapping.
2) The federal Parental Kidnapping Prevention Act has provisions that facilitate enforcement of state criminal sanctions.
3) Criminal parental kidnapping statutes may be applied against defendants who have never been in the state.
a. --E.g., Parents divorce in Texas and father remains there. Texas court awards custody to mother, and she and the child subsequently move to Arizona. The child visits the father in Texas, and he refuses to return the child. Arizona may initiate criminal action against the father for parental kidnapping.
B. Civil Sanctions.
1) Interference with custody rights may be the basis for several forms of tort action.
II. Conflicting Orders.
A. State Laws.
1) All states have enacted some form of the Uniform Child Custody Jurisdiction Act (a copy of which is included in Vol. VIII of Martindale-Hubbell).
2) Sections 12 and 13 of the model act provide guidance for cases involving conflicting orders.
3) Note that § 23 of the model act provides for international application.
B. Federal Law.
1) In the case of conflicting court orders, federal law may preempt state in determining which order is entitled to full faith and credit. See Part IV.
1) Section 721, National Defense Authorization Act, 1989, Pub. L. 100-456, 102 Stat. 2001 (1988) (see Part II, above).
2) Parental Kidnapping Prevention Act (PKPA), Pub. L. No. 96-611, 94 Stat. 3569; 28 U.S.C. § 1738A; 42 U.S.C. §§ 654(17), 663, 655(a), 663.
3) International Child Abduction Remedies Act, Pub. L. No. 100-300, 102 Stat. 437 (1988) (see Part V, below).
B. Impetus for PKPA.
1) Congressional dissatisfaction over increasing numbers of parental kidnappings, inconsistent and conflicting court orders, excessive relitigation.
2) Lack of criminal enforcement mechanism in UCCJA.
3) Desire to track down runaway parents.
II. Determining Which Court Order is Valid.
A. Full Faith and Credit.
1) States must afford full faith and credit to valid sister state child custody determinations.
2) Such determinations are valid as long as the rendering state had jurisdiction pursuant to one of the jurisdictional bases found in the PKPA.
B. Recognized Bases for Jurisdiction.
1) The state:
a. Is the "home state" on the date of commencement of the proceeding, or
b. It had been the home state within 6 months of the commencement, and child has been removed by a contestant, and a contestant continues to reside in the state.
2) If no state qualifies above, and the court's exerciser of jurisdiction is in the best interests of the child because:
1. The child and at least one contestant has a significant connection with the state other than mere physical presence, and
2. There is available in the state substantial evidence concerning the child's present and future care, protection, training, and personal relationships.
3) The child is physically present in the state and is abandoned or an emergency situation exists.
4) No state has jurisdiction on the preceding grounds, or all states with potential jurisdiction have declined to exercise it, and the exercise of jurisdiction is in the best interests of the child.
5) Modification of an existing order: a court in one state is entitled to modify a custody award by a court of another state if:
a. It has a basis for jurisdiction recognized by PKPA, and
b. The court in the original state has lost jurisdiction, or has declined to exercise jurisdiction to make a modification.
1. Original jurisdiction continues as long as the child or one parent remains in the state.
2. But note Robinson v. Robinson, 511 N.Y.S. 2d 172 (3d Dept. 1987) (New York court that issued the original order declined to exercise continuing jurisdiction where the child had resided in Florida since 1979).
C. Resolving Conflicts.
1) A court does not have recognizable jurisdiction if a custody action is pending in another state which is exercising jurisdiction consistent with the provisions of PKPA.
2) Conflicts between the UCCJA (i.e., state law) and PKPA are resolved in favor of the latter.
D. Federal Parent Locator Service Established by PKPA.
1) States may use PLS and may charge a fee for it.
2) Only authorized persons are entitled to use PLS.
E. PKPA's Enforcement Mechanism: The Unlawful Flight Warrant.
1) Parental kidnapping is an act for which a warrant for unlawful flight to avoid prosecution may be issued under 18 U.S.C. § 1073 if:
a. There is evidence that the child was taken across interstate or international borders, and
b. The state from which the child was taken has a statute which makes such taking a felony.
2) Experience under PKPA.
1. Initial reluctance to handle PKPA cases. After passage, DOJ determined that it would issue unlawful flight warrants only if:
a) There was probable cause to believe that a violation of the unlawful flight statute had occurred, and
b) The state law enforcement agency requesting the warrant was committed to extraditing and prosecuting the defendant, and
c) There was independent credible evidence that the child was in physical danger or in a condition of abuse or neglect, and
d) Local U.S. attorneys were required to get DOJ Criminal Division authorization before such warrants could be issued.
2. Congressional pressure forced change.
a) Now local U.S. attorneys make warrant decision; DOJ okay not required.
b) Only limitation now is that U.S. attorneys should not issue such warrants where there is reason to believe that the state will not extradite and prosecute once the FBI has apprehended the fugitive.
F. Judicial Enforcement.
1) Does PKPA create a federal cause of action?
a. Example of issue: Flood v. Braaten, 727 F.2d 303 (3d Cir. 1984). Mother had obtained custody of children in North Dakota divorce proceeding and later obtained a modification to permit her to move to New York with the children, but with the father to have custody in the summer in North Dakota. When father got the children, he obtained an ex parte order in North Dakota awarding full custody to him. Mother, who by this time had moved from New York to New Jersey, obtained a conflicting court order in New Jersey and got the children back. Father kidnapped two of the four children. New Jersey and North Dakota refused to recognize the other's orders. Mother filed an action in federal court asserting that PKPA gave federal court jurisdiction. HELD: A federal court does have jurisdiction to hear such a matter where state courts refuse to honor one another's decrees.
b. The issue has been definitively resolved against a finding of federal jurisdiction: Thompson v. Thompson, 484 U.S. ___, 108 S. Ct. 513, 98 L.Ed.2d 512 (1988) (PKPA does not create a cause of action that may be pursued in federal courts to resolve a dispute between two competing custody orders, and neither does it supercede the family law exception to diversity jurisdiction).
2) PKPA is not a defense to extradition proceedings based on self-help enforcement of a custody order entitled to full faith and credit, in violation of a different custody order that was not issued in compliance with PKPA. California v. Superior Court, 482 U.S. ___, 107 S. Ct. 2433 (1987).
G. Litigation Under the UCCJA and PKPA.
1) Defenses to assertions of jurisdiction.
a. Another court qualifies as a home state.
1. Presumably, a court would want to avoid a "moot" decision.
2. PKPA does not "invalidate" states orders; it only says they are not entitled to full faith and credit.
b. An action is already pending in another state.
c. The court is an inconvenient forum.
d. Misconduct by the plaintiff.
e. Another state has continuing jurisdiction.
2) Procedural matters.
a. Service of notice on the other party is essential. UCCJA § 5; 28 U.S.C. § 1738A(e).
b. Affidavits/pleadings. UCCJA § 9.
1. Past litigation.
2. Pending proceedings.
3. Who has possession?
4. Child's present address.
5. Child's residences for past 5 years.
6. Names and addresses of those with whom the child lived.
c. Interstate testimony can usually be arranged by telephone, etc.
d. Costs of litigation, including travel costs, can usually be shifted in a fair manner.
1) Convention on the Civil Aspects of International Child Abduction, done at The Hague, October 25, 1980; text reprinted at 51 Fed. Reg. 10498 (1986).
2) International Child Abduction Remedies Act, Pub. L. No. 100-300, 102 Stat. 437 (1988).
3) H. Rep. No. 525, 100th Cong., 2d Sess. (1988), reprinted in 1988 U.S. Code, Cong. & Admin. News 386-403.
4) Interim Regulations implementing Pub. L. 100-300: 22 C.F.R. Part 94, 53 Fed. Reg. 23608 (1988).
5) 51 Fed. Reg. 10503 (State Department's analysis of the Convention) (1986).
B. Overview of the Convention.
1) Purposes of the Convention. Article 1.
a. To secure the prompt return of children wrongfully removed to or retained in any Contracting State.
b. To ensure that rights of custody and access created by the law of one Contracting State are effectively respected in the other Contracting States.
a. Contracting States--those which have ratified the Convention.
b. Rights of custody--the right to make decisions regarding the child's care, particularly where the child will live. Article 5.
c. Rights of access--the right to take a child for a limited period of time to a place other than the child's habitual residence. Article 5.
d. Wrongful removal or retention--a breech of custody rights that are attributed to a person or an institution, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention. The right of custody may arise from:
1. Operation of law of the State where the child was habitually resident.
2. A judicial or administrative decision.
3. An agreement having legal effect under the law of the State where the child was habitually resident.
4. Any other relevant source.
e. Child--one who has not yet reached his or her 16th birthday. Article 4.
f. Central Authority--each Contracting State is required to establish a central point of contact to coordinate and oversee actions undertaken in compliance with the Convention. Article 6.
3) Central Authority responsibilities. Article 7.
a. Help discover where the child is located.
b. Take appropriate measures to prevent further harm to the child or prejudice to the parties.
c. Secure the voluntary return of the child if possible and assist in the amicable resolution of other issues.
d. Exchange information on the social background of the child and the local law regarding rights of custody.
e. Make appropriate administrative arrangements to ensure the child's safe return.
f. Provide legal representation for the aggrieved party or assist that party arrange for legal representation.
g. Cooperate with other Central Authorities.
II. How the Convention Works.
A. Remedies for Wrongful Removal or Retention.
1) The Central Authority of the State where the child is shall take all appropriate measures to obtain the voluntary return of the child. Article 10.
2) The authority of the Contracting State shall order the return of the child forthwith in cases of wrongful removal or retention initiated within 1 year of the removal or retention. Article 12.
3) The authority of the Contracting State shall order the return of the child forthwith in cases of wrongful removal or retention initiated more than 1 year after the removal or retention unless it is demonstrated that the child is now settled in its new environment. Article 12.
4) This means that litigation will be required if voluntary action cannot be achieved.
a. In the U.S., the law suit will take place in state courts or in federal courts. See § 4(a), Pub. L. 100-300.
b. The party seeking the child's return will have to retain counsel or attempt to get the state child protective services involved.
c. A Central Authority can request an opinion from the Central Authority of the child's habitual residence to determine whether the removal or retention was wrongful.
B. Defenses to the Requirement to Return the Child.
1) The removal or retention was not in fact "wrongful" under the law of the child's habitual residence.
2) The child is over the age of 16.
3) The person or institution seeking the child's return was not actually exercising rights of custody at the time of the removal or retention. Article 13.
4) The person or institution seeking the child's return consented to or acquiesced in the removal or retention. Article 13.
5) There is a grave risk that the child's return would expose him or her to physical or psychological harm or otherwise would place the child in an intolerable situation. Article 13.
6) The child objects to being returned and has attained an age and maturity so that it is reasonable to take the child's desires into account. Article 13.
7) The child's return may be refused if it is not permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Article 20.
8) Note: the authority hearing the case shall consider information on the child's social background that is provided by the Central Authority of the child's habitual residence.
C. Relationship Between Convention Responsibilities and Child Custody Adjudications.
1) The sole fact that the wrongfully removing or retaining person has obtained a valid custody order is not in itself a basis for refusing to order the child's return. Article 17.
2) Once a Contracting State receives notice that a child in its jurisdiction has been the subject of a wrongful removal or retention, judicial or administrative authorities of that state shall not decide on the merits of the rights of custody unless:
a. It has been determined that the child will not be returned; or
b. An application for the child's return has not been received within a reasonable time following the receipt of the notice.
3) The Convention does not address the merits of custody disputes, choice of law issues, or rules for which court should exercise jurisdiction in child custody matters.
D. Enforcing the Rights of Access. Article 21.
1) Rights of access are not subject to mandatory enforcement actions as are rights of custody.
2) Essentially, Central Authorities may take all appropriate actions to effectuate access rights.
E. Practical Aspects.
1) Methods of proceeding.
a. A party seeking a child's return can start by contacting the Central Authority in his or her own country or by contacting the Central Authority of the nation where the child is located.
b. An alternative may be to bypass the Central Authorities and initiate litigation in the courts of the country where the child is located.
1. This is authorized by § 4(b) of Pub. L. 100-300.
2. Probably not the best approach; Central Authorities can provide valuable assistance.
a) Locating the child.
b) Obtain an opinion as to wrongfulness.
c) Obtain information on the child's social background in the State of habitual residence.
d) Monitor proceedings to ensure timely action.
e) Assist in arranging representation, including pro bono representation.
f) Help negotiate voluntary return.
g) Coordinate with child protection agencies for foster care and other efforts to protect the child.
c. In any event, assertion of custodial rights should be made as soon as possible after the wrongful removal or retention.
2) Relationship with other statutes.
a. The Convention and the federal implementing statute are not exclusive remedies for international child abductions.
b. For cases involving children removed or retained in the U.S., the UCCJA may provide a better remedy than the Convention, especially if a custody order exists.
c. For cases involving children in other countries, there may be domestic law similar to the UCCJA.
F. Ratifying Nations.
1) --Australia, Austria, most Canadian provinces, France, Hungary, Luxembourg, Norway, Portugal, Spain, Sweden, Switzerland, Belize, the UK, and the U.S.
G. Additional Assistance.
1) The U.S. Central Authority is the Office of Citizens Consular Affairs in the Department of State.
2) Address: Office of Citizens Consular Affairs
Department of State
Washington, DC 20520
Phone: (202) 647-3666.
APPENDIX 3: International Parental Kidnapping
[WRITTEN IN 1989]
Major Jeffrey S. Guilford
Chief, Legal Assistance Branch
The Judge Advocate General's School
Parental kidnapping has received a surprising degree of congressional attention. In addition to creating the Parental Kidnapping Prevention Act of 1980 (28 U.S.C. § 1738A), Congress recently ordered DOD to develop a uniform policy for responding to arrest warrants arising from illegal parental kidnapping perpetrated by members of the Armed Forces. Even more significantly, last year Congress enacted the International Child Abduction Remedies Act (the Act), Pub. L. 100-300, 102 Stat. 437 (1988), which implements the Hague Convention on the Civil Aspects of International Child Abduction. So far, this multilateral treaty has been ratified by 10 of the 29 signatory nations: Australia, Canada (all provinces except the Northwest Territory), France, Hungary, Luxembourg, Portugal, Spain, Switzerland, the United Kingdom, and the United States. This note briefly discusses the Convention, which is now federal law.
Legal assistance attorneys need answers to four questions that arise under the Convention. First, who is covered by the protections and procedures that it creates? Second, what types of wrongdoing are addressed? Third, what remedies are available? And, finally, how can the treaty be invoked?
Who Is Covered?
The Convention's ultimate beneficiaries are children who have been wrongfully abducted or retained or who have been denied the opportunity to visit with a noncustodial spouse. Nevertheless, the protections are invoked by parents or other custodians and not by the children themselves. Thus, it is fair to say that the Convention protects people (or institutions) who legally exercise custody over children. "Custody" means the right to make decisions relating to the care of the child, especially the right to determine the child's place of residence. The fundamental prerequisites for invoking the Convention are the legal right to custody and the actual exercise of that right (or a showing that custody would have been exercised but for the child's wrongful abduction).
Since custody is the key, it is important to note that custody can be exist even if the child is not living with the custodian. For example, suppose a custodial parent allows a child to live with grandparents for a brief period; in this case, the parent has exercised the right to determine the child's place
of residence, and that is the essence of custody under the Convention.
The Convention applies to children under the age of 16 who were habitually resident in a Contracting State (i.e., one that has ratified the Convention) at the time of the wrongful abduction or retention. Once a child reaches his or her 16th birthday, the Convention no longer applies, and this is so even if the child is in an abducted status at that time. The Convention is designed to supplement other relevant laws rather than supercede them, however, and an aggrieved custodian may seek the return of such a child under the Uniform Child Custody Jurisdiction Act or similar domestic law of the jurisdiction where the child is found even when the Convention is no longer applicable.
The Convention also addresses wrongful denial of access rights, and "access" is defined as the right to take a child for a limited period of time to a place other than the child's habitual residence. Thus, the Convention seeks to protect visitation rights in addition to custody rights, but the enforcement mechanism for access essentially is hortatory. The primary focus is returning wrongfully abducted or retained children to custodians.
What Constitutes A Wrongful Act?
An abduction (or "removal") or retention of a child is wrongful under the Convention if is a "breach of custody rights attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention;...the rights of custody...may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State." Convention, Article 3.
There are several important aspects to this definition of an actionable wrong. The first point is that the three listed sources of custody rights are not exclusive; any legal custody right is protected.
Moreover, the Convention can apply despite the absence of a judicial determination of custody rights. The law of the jurisdiction where the child was habitually resident will determine whether his or her removal violates another party's right of custody, and this law may recognize rights that exist before the issue can be adjudicated. The U.S. State Department analyzed the Convention in this regard and arrived at the following conclusion.
In the United States, as a general proposition both parents have equal rights of custody of their children prior to the issuance of a court order allocating rights between them. If one parent interferes with the other's equal rights by unilaterally removing or retaining the child abroad without consent of the other parent, such interference could constitute wrongful conduct within the meaning of the Convention. Thus, a parent left in the United States after a pre-decree abduction could seek return of a child from a Contracting State abroad pursuant to the Convention. In cases involving children wrongfully brought to or retained in the United States from a Contracting State abroad prior to the entry of a decree, in the absence of an agreement between the parties the question of wrongfulness would be resolved by looking to the law of the child's country of habitual residence.
The third important point is raised by the preceding quote, and it is that the Convention recognizes joint custody rights and may be used to enforce one parent's joint right against the other parent.
As already has been noted, the Convention addresses visitation rights, too. The source of these rights is not mentioned, but as a practical matter one presumably would look to a court decree or an agreement between the parties for a definition of visitation rights. Theoretically, the law of the jurisdiction where the child is habitually resident may create noncustodial parents' access rights in the absence of a decree or agreement, but it is not likely that many countries have laws addressing this question. Thus, the threshold problem in access denial cases is establishing a right of access; once this is done, it should be an easy matter to determine whether the custodial parent has denied this right.
What Remedies Are Available?
The Convention's remedy for a wrongful abduction or retention is to arrange for the child's voluntary return or the issuance of a court or administrative order that directs the child's return to the person or institution entitled to custody. Thus, the purpose behind this treaty is simply to return the child to the status quo ante the abduction or retention; it does not address what court should have jurisdiction over custody matters, or choice of law issues in an international custody dispute, or the merits of a custody dispute, or other remedies such as tort damages for abductions. Also, as the Convention's name makes clear, it only deals with civil aspects of international child abduction; there is no provision for extradition or criminal prosecution of abductors.
Before the Convention can be invoked, the person or institution seeking the child's return must establish several threshold facts, as follows: the requester must be entitled to custody under the law of the child's habitual residence; the requester must have been exercising custody over the child at the time of the removal or retention; and the child's removal or retention must be wrongful under the law of the child's habitual residence.
Assuming these foundational facts are established, Article 12 of the Convention provides that when proceedings for the return of the child are commenced within 1 year of the wrongful removal or retention, the judicial or administrative authority of the Contracting State where the child is located "shall order the return of the child forthwith." If more than 1 year has elapsed, then the judicial or administrative authority "shall...order the return of the child, unless it is demonstrated that the child is now settled in its new environment."
Of course, there are exceptions to the mandatory nature of Article 12. Thus, a court or administrative authority of the Contracting State where the child is located may refuse to order the child's return to the custodian where: the custodian had consented to or subsequently acquiesced in the removal or retention; there is a grave risk that the child's return would subject him or her to physical or psychological harm or otherwise place the child in an intolerable situation; the child objects to being returned and has attained an age and degree of maturity so that it is appropriate to take the child's views into account; or to do so would violate the country's fundamental principles relating to the protection of human rights and fundamental freedoms. Convention, Articles 13 & 20. In deciding how to apply these exceptions, the judicial and administrative authorities "shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence." Convention, Article 13.
It is also important to note what is not a defense to a request for an order for the child's return. Specifically, the bare fact that the removing or retaining person has obtained a custody order in the Contracting State where the child is located, or elsewhere, is not in itself a valid reason for refusing to order the child's return. Nonetheless, "the judicial or administrative authorities of the requested state [i.e., the state where the child currently is located] may take account of the reasons for the [custody] decision in applying [the] Convention." Convention, Article 17. It is unclear whether the "reasons for the [custody] decision" can become an independent basis for refusing to order the child's return or whether these reasons must relate to the defenses that are recognized in Articles 13 and 20, noted above, before they can constitute grounds for the refusal.
In addition to actions designed to secure the child's return, the Convention requires Contracting States to assist in locating the child, to undertake cooperative efforts to prevent harm or abuse from befalling the child, and to arrange for the child's safety during his or her return. Technically, however, there is no obligation to actually place the child on an airplane to effect the return. Just how far courts will go to achieve the Convention's purposes will depend on the facts of each case, the legal authority created by local law, the availability of child protective services, and the personalities involved.
There is one final point to be made about remedies for international child abduction. The Convention is not the exclusive means of obtaining a child's return to the person entitled to custody. All American states have enacted the Uniform Child Custody Jurisdiction Act (UCCJA), and it provides for ordering parties to comply with custody orders already in existence. It also permits courts to decline to exercise jurisdiction in child custody disputes where the plaintiff has engaged in reprehensible conduct, which may include unilaterally removing a child from a family home. Under UCCJA section 23, these provisions may be invoked in international cases, and several reported U.S. decisions have in fact applied the UCCJA to international situations. Foreign nations may have similar domestic laws that afford better protection in certain cases than the Convention or which apply in cases where the Convention does not.
Invoking the Convention's Protections
Each Contracting State is required to establish a Central Authority to serve as a point of contact on matters relating to custody and access rights, and the U.S. Central Authority is the State Department's Office of Citizens Consular Affairs. A victim of a wrongful abduction or retention, or of a denial of access, who resides in a Contracting State can request assistance through his own country's Central Authority or he can initiate a direct contact with the Central Authority where the child is located. Theoretically, a person entitled to custody may even be able to bypass both Central Authorities and simply initiate a legal proceeding before a court of the jurisdiction where the child is located. This would be inadvisable, however, since a Central Authority can help in a number of ways, including negotiating the child's voluntary return and obtaining a determination whether the removal or retention is wrongful under the laws of the child's habitual residence.
If a voluntary return cannot be obtained, litigation will ensue. The victim will be entitled to free legal representation in some countries where the child is found, but that will not be the case in the United States. Thus, the person seeking the child's return from a location in the U.S. will have to retain an attorney (the U.S. Central Authority, in conjunction with state and local child welfare officials, will attempt to help in locating suitable counsel).
The U.S. ratification of the Convention should add a significant new enforcement capability for the parent who has been victimized by an international child abduction. The Convention itself and the federal statute which implements it as part of U.S. law are too new, however, to accurately predict how well courts will adhere to the intended purpose of expeditiously returning children to foreign countries.
Additional information about the Convention and the Act can be obtained from the Office of Citizens Consular Affairs, Department of State, Washington, DC 20520, (202) 647-3666. Interim regulations for the U.S. Central Authority were published as 22 C.F.R. Part 94 in 53 Fed. Reg. 23608 (1988), and the best compilation of materials on the Convention and the Act is in BNA's Family Law Reporter, Text No. 6, 14 Fam. L. Rptr. 2057. This reference includes the text of the Act, the Convention, the Interim Regulations, and the State Department's Analysis of the Convention.
[rev. 6/29/99]* * *
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