The main focus of Child Find of America’s Parent Help program is to try to understand and alleviate co-parenting conflict, but often our callers make contact only after positions have hardened and the conflict is entrenched. In some of the worst cases, international abduction becomes the “nuclear option”— the one to burn all bridges. Unfortunately, the circumstances that allow for it to happen are becoming more and more common in today’s globalized world. The taking of a child even across state lines can put the left-behind parent in a state of shock, confusion, anger, and fear, but international abduction makes for many more complications, forcing the left-behind parent to navigate a foreign judicial system, often with language and cultural barriers thrown in the mix.
While there are criminal laws in all 50 states (and most countries) that can apply, parental abduction cases do not always draw the attention of the criminal courts – often much to the chagrin of the left-behind parent. At Child Find, our callers often ask, “Why isn’t anyone doing anything about this?”, or even, “Why doesn’t anybody care?” An understandable reaction, when the left-behind parent learns that law enforcement officers and prosecutors may see their situation as a private matter, especially if there is no direct evidence of danger to the child, or no clear violation of an existing custody order.[1] While the filing of criminal charges can sometimes be a useful tool for accessing help from state, federal or even international law enforcement, most abductions remain in the realm of civil law: one private party vs. another.
This is why the most important law concerning international parental child abduction is the Hague Convention on the Civil Aspects of International Child Abduction (1980) (the “Convention”).[2] The Convention gives support to the left-behind parent (or “LBP”) when the abduction involves two Convention contracting states. In practice, however, it can be very challenging for the LBP to assert his or her Convention rights, and there are several hurdles to get over in making a return application.
First of all, each Convention contracting state is mandated to have a Central Authority that handles all matters of Convention compliance. Once an international abduction is believed to have occurred, the LBP should contact the Central Authority in the country where he or she lives to initiate the return application. In the U.S., the Central Authority is the State Department’s Office of Children’s Issues. The State Department can work with the LBP and assist with reaching out to the Central Authority in the country where the abducting parent has fled to. This Central Authority is often asked to play a crucial role in helping to track down the abducting parent and child, which can be an extremely difficult task for many reasons, including family assistance / efforts to hide the abducting parent, or non-cooperative local law enforcement authorities. And time is very much of the essence because the LBP must file the petition for return in a court of the country where the child is located within one year of the abduction; of course, the child and abducting parent may need to be located before this can happen. If the petition is not timely filed, the abducting parent can argue that the child is “well settled” in his or her new home, and the return application may be denied.[3] In addition, once a child turns 16 they “age out” from any application of the Convention at all.
The Convention defines an abduction as a “wrongful taking or retaining” of a child (i.e. in breach of another person’s custody rights), and its design envisages that the child should be speedily returned to the country of his or her “habitual residence”. [4] This gives the LBP[5] a home-field advantage, so to speak, and is meant to provide a deterrent to taking a child across international borders to try to get a more sympathetic forum for a custody matter, or a rehearing on a decision that previously went against the abducting parent. But there does not even have to be a prior order: as long as the LBP was “exercising custody rights”[6] at the time the abduction occurred, and has established his/her country as the habitual residence, then there is what’s called a prima facie case for return. Note that, even if the LBP is found to not have been exercising custody rights, (s)he may still be able to open a Convention case for access, if not for return of the child.
The most important thing to know about the Convention is that it’s never meant to directly determine who gets custody of a child, only which county’s laws ought to apply. So the outcome of a Convention case is only a decision to return, or not to return. Once the LBP establishes a prima facie case for return, the burden shifts to the abducting parent to show why a return would not serve the interests of justice. There are five possible avenues to accomplish this, known as the “affirmative defenses”: 1) the child is well-settled in the receiving country and there was over a year between the wrongful taking/retaining and the filing of the petition; 2) the LBP consented or acquiesced to the taking/retaining of the child; 3) the child is mature enough to express his or her own wishes and doesn’t want to return; 4) returning the child would place the child at “grave risk” of physical or psychological harm or otherwise place the child in an intolerable situation; or 5) a return of the child would be contrary to fundamental principles of human rights.
Most of the above defenses are self-explanatory and fact-based, but the so-called “grave risk” defense – the most commonly cited reason, globally, for a court to refuse return in a Convention case[7] – requires some further discussion. On one hand, the entire purpose of the Convention could be defeated if this exception were interpreted as giving carte blanche to investigate where the child would be better off. This is the territory of a custody proceeding, which it’s quite clear that a Convention case is not.
From the inception, it was understood that any exceptions would have to be interpreted in a “restrictive fashion” to ensure that the Convention would remain effective. [8] U.S. courts have stated that the “grave risk” defense must point to a risk that is “more than serious”, and established by clear and convincing evidence – a higher standard than that which is ordinarily applied in a civil case. On the other hand, one reason for the increasing use of the “grave risk” defense, both in the U.S. and globally, is the increasing recognition of domestic violence as an underlying cause in many cases of child abduction. In such situations, the defense is available for when the abducting parent has acted to protect a child from further abuse. As the Hague Convention Litigation Manual (2012) puts it:
Scholars and advocates have highlighted the difference between the stereotypical abductor envisioned by the drafters of the Hague Convention and the reality that abductors are most commonly women who act as primary caretakers for the children. In alleging grave risk to the children, litigants are increasingly raising the issue of domestic abuse, in addition to emphasizing the decades of scholarship addressing the harmful effects of domestic violence on children in the home.
But courts need to be vigilant and well-informed about the permitted scope of their analysis, particularly when it comes to allegations of “grave risk”. Clearly, however, there is overlap between this defense and the “best interests of the child”, which makes the Convention something more than simply an arbiter of jurisdiction in its application.
This is how the Convention is supposed to work, but problems with adherence to its principles remain. Each year in April, the U.S. State Department publishes a report on its efforts in the past year to resolve cases of international parental child abduction. It presents statistics on cases pending and resolved , not only for countries that are full Convention partner states with the U.S., but for all foreign countries with an abduction case in that year, including the non-Convention partners. [10] In the most recent report for 2015, still 14 out of the 73 U.S. Convention partner states were considered to be noncompliant, either due to an unresponsive Central Authority, lack of due diligence from law enforcement, the courts’ lack of adherence to Convention principles, or all the above. There are reasons for optimism that the situation is improving, however. When it comes to abductions out of the U.S., Mexico is by far the biggest destination country (437 cases open in calendar year 2014), [11] and although it had previously been considered noncompliant, it was not flagged as such in 2015. New nations accede to the Convention each year, including the Philippines in 2016, and efforts are ongoing to increase compliance—notably the passing of the Sean and David Goldman International Child Abduction Prevention and Return Act (2014). That Act states that worldwide, “about one half” of parental abductions to Convention partner states result in return of the child to the U.S.,[12] but despite problems with adherence to the Convention, the LBP is always in a stronger position under the Convention than outside of it. Without it, the LBP may have no alternative but to litigate custody in the abducting parent’s country – if the child can even be found at all. The State Department reports, for instance, that for abductions to Japan before it joined the Convention in 2014, in the few cases where LBPs have fought for custody in Japanese family courts, “none have resulted in either meaningful parental access or the return of the child to the U.S.”.[13]
So the Convention is an imperfect remedy, not least because fewer than half of the world’s countries have adopted it. But prior to having to use it, there are things a parent who suspects a risk of international abduction can do to minimize that risk or to prevent the abduction from happening. Be aware of significant changes in the life of the other parent that may be warning signs: quitting a job, selling a home or ending a lease, closing a bank account, or requesting school / medical records for the child. Consult with an attorney, if that is an option, because there may be a need for quick and effective choices regarding applications for court orders. Get sole custody, if possible, or at least an order with wording to prevent a removal abroad, if there’s not one already. Because the U.S. has open borders, it can be difficult or impossible to entirely restrict the other parent from having opportunity to abduct, but having clear court orders for custody and parenting time can at least put you in a position of being able to ask for cooperation from embassies and airline staff, for instance. In the U.S., there is what’s called the Passport Issuance Alert Program run by the Department of State that you can enroll in, in order to get notice of an application for a passport for your minor child. While it generally requires consent of both parents to obtain a U.S. passport for a minor under 16, there can be exceptions to this,[14] so the Program can provide some extra assurance. If your child already has a passport, you can ask the court to hold it. If your child has dual nationality, things get trickier because each country has its own rules for issuing passports, but you can reach out to the relevant embassy and – ideally with a supportive court order – prevail on them to alert you to any incoming application.
If an application to court for emergency orders is required, the court will consider:
- The weight of evidence that the other parent is actually planning to abduct: including threats to do so or any past history of abducting;
- The circumstantial evidence: g. resources available to the other parent (both financial resources and in terms of family support) that could help make abducting easier; strong ties to another country, or evidence of weak (or weakening) ties to the U.S.;
- The difficulty of having the child returned, if an abduction should occur (e.g. is the parent suspected of planning an abduction to a non-Convention partner state?)
Above all, never ignore abduction threats—always take them seriously, and make a record of what was actually said, in what context, and when.
Where a court has been convinced there is a credible flight risk, there are a host of possible remedies. It can order that the other parent post a bond (both as a deterrent to flight, and/or to assist with recovery efforts should an abduction occur), order supervised visitation (though this is usually only a temporary fix), write specific restrictions into the custody order, order the other parent to notify another country’s embassy or consulate of a court order and its travel restrictions, require a parent to obtain a custody order from the court of another country that mirrors the one existing in the U.S., or any combination of the above or other creative solutions.[15]
While none of these methods can provide total certainty that an abduction won’t happen, they can provide some peace of mind by making things much more difficult for the prospective abductor. The old saying that an ounce of prevention is worth a pound of cure holds truer than ever because—even with support from the Convention—there is no easy fix when it comes to international parental child abduction.
Footnotes
[1] Importantly, courts retain the option to return a child even when the abducting parent is able to successfully argue that the child is well settled: this may be done in cases where return is seen as the option best in keeping with the aims of the Convention (e.g. not to “reward” the abducting parent for concealing the child from the LBP).
[2] The 1993 International Parental Kidnapping Crime Act makes it a federal crime to take an under 16-year old child out of the U.S. without consent of the other custodial parent – but with certain exceptions or “affirmative defenses”, such as when the abducting parent is fleeing domestic violence.
[3] Part of the broader Hague Conference on Private International Law.
[4] Habitual residence is undefined in the Convention but interpreted by extensive case law.
[5] Any party with custodial rights to a child (it need not be a parent) can claim a wrongful taking or retention
[6] Custody rights are generally interpreted to mean the right to determine (or have input in determining) where a child shall live. Whether those rights were being exercised at the time of the wrongful taking or retaining requires an inquiry into the facts.
[7] See the 2011 Report of the Hague Conference
[8] See Convention’s Explanatory Report by Elisa Pérez-Vera.
[9] Published under auspices of the National Center for Missing and Exploited Children (NCMEC).
[10] For a list of contracting states see https://www.hcch.net/en/instruments/conventions/status-table/?cid=24. Although there are 94 contracting states, not all have had their accession to the Convention accepted by the U.S. (e.g. Iraq).
[11] State Department Annual Report for 2015 and data for calendar year 2014.
[12] https://www.govtrack.us/congress/bills/113/hr3212/text
[13] State Department Annual Report and data, supra.
[14] Including “exigent circumstances” involving the health or welfare of a child, or when the Secretary of State determines that issuance of a passport is warranted by “special family circumstances”.
[15] See the Uniform Child Abduction Prevention Act (UCAPA) of 2006. Not broadly adopted by states due to concerns that it may restrict freedom of movement within the U.S., the Act can nevertheless serve as guidance in assessing risks and drafting orders where international abduction is a real threat.