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THE LEGAL EAGLE

OVERSEAS KIDNAPPING ISSUES

INTRODUCTION: As a service to our legal assistance clients, we have prepared this handout with frequently asked questions on issues involving custody, court orders, parental kidnapping and international custody matters. It is, of course, very general in nature since no handout can answer your specific questions. We do ask, however, that you read over these questions and answers carefully in connection with your visit to our legal assistance attorneys so that you may have the fullest information available to help you with your family law problem. Comments, corrections and suggestions regarding this pamphlet should be sent to the address at the end of the last page.

1. Q. I'M AFRAID MY WIFE WILL KIDNAP OUR SON. ISN'T THERE ANY WAY I CAN FIND OUT IF SHE'S GOTTEN A PASSPORT FOR HIM?

A. Kidnapping is a serious problem. While it's not illegal for one parent, without a court order in place, to leave with the children without the other's permission, there are many cases each year in which a parent violates a court order and abducts a child. The U.S. Department of State receives nearly 3,000 reports annually of actual or expected abductions. About 1,000 of these involve children of dual nationality. The State Department has set up a Namecheck Clearance System as a lookout system for the denial of U.S. passports. While it's not a passport use tracking system, it does provide information to a parent or court about when a passport application is submitted on behalf of a child.

2. Q. HOW DOES THE NAMECHECK CLEARANCE SYSTEM WORK?

A. It works in two ways. If the State Department has on file a court order that prohibits travel outside the U.S. , grants custody to the parent who isn't applying for a passport, or grants joint custody to both parents, then the passport will be denied. If the State Department has on file a written request for information for a parent, guardian or court, then the Department will notify that parent, guardian or court if a passport application has been submitted for a child. The Namecheck Clearance System remains effective until the child turns 18 or a written request is made to end it. Changes in address, phone number or name should be made in writing.

3. Q. HOW CAN I USE THE NAMECHECK CLEARANCE SYSTEM TO REQUEST INFORMATION ON THE ISSUANCE OF A PASSPORT TO MY CHILD?

A. Here's how it works: Your written request must include -- the child's full name, his or her date and place of birth, your name, address and telephone number. If there is a court order giving you custody of the child, include that also (a certified copy is not required). You should also include any of the following helpful information: other names by which the child is known; where the child is located at present; where the other parent resides; whether an American passport has been previously requested (and, if so, the previous passport number), and that status of any court case between you and the other parent.

4. Q. WHEN WILL THE STATE DEPARTMENT DENY A PASSPORT FOR MY CHILD TO THE OTHER PARENT?

A. In order to deny a passport, the State Department must be provided with a court order that:

> Grants you full custody; or

> Grants joint custody to both parents (in which case both parents must consent before a passport will be issued); or

> Places limits on a child's travel, such as requiring that the child not leave the United States ; or

> Requires that both parents (or the court) agree to the child's obtaining a passport or traveling outside the United States .

5. Q. WHERE DO I SEND MY REQUEST?

A. The Namecheck Clearance System is located at:

Office of Passport & Advisory Services
1111 19th Street NW, Suite 260
Washington DC 20522-1705 .

You may fax your request to: 202-955-0230 .

6. Q. WHAT IF MY CHILD HAS DUAL CITIZENSHIP?

A. Sometimes an American child acquires citizenship in a second country. This occurs when one of his or her parents is a “foreign national” (not a U.S. citizen). It is important to remember this in the passport application process. Simply because a child can't get a U.S. passport does not mean that he or she cannot travel abroad on another nation's passport. If your child has another nationality, be sure to contact that country's embassy or consulate to ask about procedures for denial of a passport for that country (or notification of application). Please be advised that there is no requirement that other countries or their embassies comply with U.S. laws and regulations as to the issuance or denial of their passports to U.S. citizens who are children with dual nationality.

7. Q. WHERE CAN I GET MORE INFORMATION ABOUT THE ISSUANCE OR DENIAL OF U.S. PASSPORTS TO CHILDREN INVOLVED IN CUSTODY DISPUTES?

A. Call the State Department's Bureau of Consular Affairs at 202-955-0231 and ask for “the duty officer.” In addition, if you have access to a computer and an on-line service, you can get information on the Internet at the following home page:

http://travel.state.gov/passport_assistance.html.

For information on international child abduction, contact the Office of Children's Issues at 202-736-7000, or go to their home page at http://travel.state.gov.

8. Q. MY SPOUSE HAS LEFT THE COUNTRY AND TAKEN OUR CHILDREN. WHAT CAN I DO?

A. The Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act (ICARA) provide remedies for a parent whose child or children have been taken to another country. The Hague Convention and ICARA establish the procedure for responding to these cases and the remedies available to the parent who is left behind. The Convention only applies between the forty or so member nations. The primary objectives of the Convention are to secure the prompt return of children wrongfully removed or retained and to ensure that rights of custody and visitation are respected. The Convention does not apply in all cases. The procedures for obtaining assistance are outlined below.

9. Q. WILL THE JUDGE ORDER THE RETURN OF MY CHILDREN?

A. The Convention does not require a court to order the return of children when a parent has consented or acquiesced in the removal or retention of children. The Convention does not apply to children over the age of sixteen or cases where proceedings are filed more than one year after the child is removed. When the child is old enough, the court may refuse to order his return if he does not want to go. The court may also refuse to return a child if the court determines that the child's return would create a grave risk of physical or psychological harm to the child.

10. Q. WHERE WILL THE CUSTODY DETERMINATION BE MADE -- HERE OR THERE ?

A. The purpose of the Hague Convention is to ensure that custody and visitation rights are decided by the court in the appropriate country. The selection of the appropriate country requires a determination of which country is the child's place of habitual residence . The term “habitual residence” has been interpreted to mean “ordinary residence” or the child's customary residence prior to removal. Habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a >degree of settled purpose' from the child's perspective. Application of this standard must focus on the child's circumstances and the parents' present shared intentions regarding their child's presence there.

11. Q. DON'T I HAVE TO HAVE A COURT ORDER OR A SEPARATION AGREEMENT TO KEEP MY SPOUSE FROM LEAVING WITH THE CHILDREN?

A. Rights of custody or visitation may arise from a court order or an agreement of the parties. When neither of these exists, custody and visitation rights are determined by the law of the country of habitual residence. In the absence of an order or agreement, in most countries the parents will have equal rights to custody. When one party removes a child without a court order or the consent of the other parent, or refuses to allow visitation, the removal or retention is wrongful and violates the Convention. The existence of an order or agreement can be very helpful in avoiding the removal of a child or facilitating a child's return. If there's no court order, then there's no illegal abduction. It is not unlawful for one parent to remove the children without the permission of the other.

12. Q. CAN I PREVENT MY SPOUSE FROM LEAVING THE COUNTRY WITH OUR CHILDREN?

A. There are things that you can and should do to reduce the risk of abduction or retention. If there is a substantial risk that your child's other parent will remove a child or refuse to return a child who is visiting in another country, you should obtain a court order or an agreement on custody. The order or agreement should prohibit the child's international travel without your consent or judicial authorization. You may also consider requesting that a bond be posted as a requirement for international travel. You should also contact the organizations listed at the end of this handout for additional information on how you can reduce the risk of abduction and facilitate return.

13. Q. CAN I ENFORCE MY RIGHTS TO VISITATION WHEN MY CHILDREN ARE IN ANOTHER COUNTRY?

A. The Convention also addresses visitation (access) rights. It permits, but does not require, the court in the country where the child or children are located to order that they be made available or sent for visitation with the noncustodial parent. It also does not require the parent who has wrongfully withheld access to pay for the innocent spouse's attorneys' fees and costs. It only requires the court to “take steps to remove, as far as possible, all obstacles” to the exercise of visitation rights. This may mean that the court will enforce visitation rights on the condition that they be exercised within the country.

14. Q. WHAT ABOUT ATTORNEYS' FEES AND TRAVEL COSTS?

A. Any court order requiring the return of a child pursuant to the Convention must order the other parent to pay the necessary expenses incurred by or on behalf of the innocent parent, including court costs, legal fees, foster home or other care during the course of the proceedings in the action, and transportation costs related to the return of the child. There is no similar authority in visitation cases. However, a state court properly exercising jurisdiction over the custody or visitation issues can impose these requirements.

15. Q. WHOM CAN I CONTACT FOR HELP?

A. Here are some sources for help:

> For help with initiating a Hague petition to the return of a child or enforcement of visitation rights contact: Office of Children's Issues, CA/OCS/CI, Room 4811, Department of State, Washington, D.C. 20520-4818, 202-736-7000, FAX 202-647-3000.

> For additional information on how to prepare for the risk of child abduction or search and recovery contact the Office of Children's Issues and the National Center for Missing and Exploited Children, 2101 Wilson Boulevard, Suite 550 , Arlington , VA 22201 , 1-800-843-5678 [1-800- THE-LOST ]. The Center acts as a clearinghouse for information on missing children. They also have an interactive website at http://www.missingkids.com

16. Q. WHAT ARE SOME THINGS I CAN DO TO PREVENT A KIDNAPPING ?

A. The first and most important thing you can do is to get a court order for custody of the child or children involved. If you only have a separation agreement granting you custody, ask your attorney about getting it incorporated into a court decree, or getting a separate court order. A court order is your best protection.

17. Q. WHAT ELSE CAN I DO?

A. Try these tips:

1) You can ask for the police or sheriff to help if the other parent threatens to kidnap your child, and the law enforcement authorities should warn this parent about the criminal charges that may result from a kidnapping.

2) If your child has dual citizenship, you can write to the foreign embassy or consulate of the second country and provide them with a certified copy of your custody order. Ask them not t issue a passport or visa for the child.

3) Notify the child's school, day-care center, Sunday school and after-school activities (and other places where your child might be) about the custody order. You should ask them not to turn over the child to anyone except you.

4) Put the child's birth certificate, passport, school records and medical records in a safe place where only you can get them.

5) If your child is old enough, teach him or her how to use the telephone and how to dial your number (including long-distance area code).

6) Again, if your child is old enough, tell him or her not to go with the other parent, especially on an airplane.

7) Keep a recent photograph of the child and the other parent in case law enforcement authorities need them for identification.

8) Keep a list of all the credit cards, bank accounts and Social Security numbers of the other parent, and the child's Social Security number.

9) Make a list of the names, addresses and telephone numbers of the other parent's family members and close friends.

10) File a certified copy of the custody order in the other parent's state or country of residence.

11) When you go to court for custody, ask for supervised visitation, the surrender of the other parent's passport, and a specific statement by the court forbidding the child's travel to another country.

18. Q. IS THERE ANYTHING THAT THE ARMY CAN DO TO HELP GET MY CHILDREN BACK FROM OVERSEAS?

A. If there's a court order, then you may be able to get some help. DoD Directive 5525.9 (December 27, 1988) requires soldiers and family members outside the United States to comply with court orders that require the return of minor children who are subject to a court order regarding visitation or custody of children under 14 years of age. The Army's implementing regulation is found at Chapter 2, Section III of AR 608-99. Contact the soldier's commander and provide a copy of the court order. The soldier must return the child or face disciplinary action for abducting, taking, enticing, or carrying the child away from the lawful custodian, or for withholding, detaining, or concealing the child from the lawful custodian. The Army will ensure the soldier complies with the court order. This means you first must have a court order giving you custody. If you have the court order, the Army will make sure the soldier complies.

19. Q. IF I HAVE OTHER QUESTIONS, WHAT SHOULD I DO?

A. See a legal assistance attorney or private attorney as soon as possible. Your lawyer can answer many questions and help you to make a fair and intelligent decision about your choices, options and alternatives. Our legal assistance office stands ready, willing and able to help you in these matters. Be sure to bring along with you to the interview a copy of any documents or court papers that might be helpful to your attorney. You may also want to read a copy of our LEGAL EAGLE handout, “Overseas Custody and Visitation Issues.”

Location and hours of your Legal Assistance Office: ____________________

Information on local agencies, offices and resources: ____________________

[rev. 1/08]

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THE LEGAL EAGLE SERIES OF CLIENT HANDOUTS IS PREPARED BY MARK E. SULLIVAN, CHAIR OF THE MILITARY COMMITTEE, ABA FAMILY LAW SECTION AND AUTHOR OF THE MILITARY DIVORCE HANDBOOK (AM. BAR ASSN. 2006). COMMENTS AND SUGGESTIONS SHOULD BE SENT TO HIM AT: 2626 GLENWOOD AVENUE , STE. 195, RALEIGH , N.C. 27608 [919-832-8507]; E-MAIL— MARK.SULLIVAN@NCFAMILYLAW.COM

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