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U.S. DEPARTMENT OF STATE
BUREAU OF CONSULAR AFFAIRS
INTERNATIONAL CHILD ABDUCTION
JANUARY 1995
INTRODUCTION
Parental child abduction is a tragedy. When a child is abducted across
international borders, the difficulties are compounded for everyone
involved. This pamphlet is addressed to the adult most directly affected
by international child abduction, the left-behind parent.
The Department of State's Office of Children's Issues (CA/OCS/CI) deals
with the victims of international parental child abduction every day.
Since the late 1970's, we have been contacted in the cases of approximately
7,000 American children who were either abducted from the United States or
prevented from returning to the United States by one of their parents. At
the time of publication, we have over 1,200 active, unresolved cases on
file.
You, as the deprived parent, must direct the search and recovery operation
yourself. Because it can be a bewildering experience, we have prepared a
checklist for you (see page 28). In this booklet, we tell you what the
Department of State can and cannot do to help you (see page 4). In
addition, because we are only part of the network of resources available to
you, we mention other avenues to pursue when a child or children have been
abducted across international borders. Your case is unique, and you will
have to decide how much of the information here is useful and whether it
can be applied to your particular needs to resolve your crisis.
If you have any further questions, please call us at 202-736-7000. You may
also fax us at 202-647-2835, or write to us at:
Office of Children's Issues CA/OCS/CI, Room 4811, Department of State
Washington, D.C. 20520-4818.
Ninth Edition
January 1995
PART I- PREVENTION
HOW TO GUARD AGAINST INTERNATIONAL CHILD ABDUCTION
How Vulnerable is Your Child?
You and your child are most vulnerable when your relationship with the
other parent is broken or troubled; the other parent has close ties to
another country; and the other country has traditions or laws that may be
prejudicial to a parent of your gender or to aliens in general.
Cross-cultural Marriages: Should You or Your Child Visit the Country of
the Other Parent?
Many cases of international parental child abduction are actually cases in
which the child traveled to a foreign country with the approval of both
parents but was later prevented from returning to the United States. While
these cases are not abductions, but wrongful retentions, they are just as
troubling to a child. Sometimes the marriage is neither broken nor
troubled, but the foreign parent, upon returning to his or her country of
origin, decides not to return to the U.S. or to allow the child to do so.
A person who has assimilated a second culture may find a return to his or
her roots traumatic and may feel a pull to shift loyalties back to the
original culture. A person's personality may change when he or she returns
to the place where he or she grew up.
In some traditional societies, children must have their father's permission
and a woman must have her husband's permission to travel. If you are a
woman, to prevent your own or your child's detention abroad, find out about
the laws and traditions of the country you plan to visit or to allow your
child to visit, and consider carefully the effect that a return to his
roots might have on your husband. The Office of Children's Issues has
several country flyers that provide some general information. For detailed
advice in your specific case, you may wish to contact an attorney in that
country. We can provide you with a list of attorneys practicing around the
word.
Precautions That Any Vulnerable Parent Should Take
In international parental child abduction, an ounce of prevention is worth
a pound of cure. Be alert to the possibility and be prepared€keep a list
of the addresses and telephone numbers of the other parent's relatives,
friends, and business associates both here and abroad. Keep a record of
other important information on the other parent, including these numbers:
passport, social security, bank account, driver's license, and auto
license. In addition, keep a written description of your child, including
hair and eye color, height, weight, and any special physical
characteristics. Take color photographs of your child every six months.
If your child should be abducted, this information could be vital in
locating your child.
The National Center for Missing and Exploited Children (NCMEC at
telephone 1-800-843-5678 ), in addition, suggests that you teach your child
to use the telephone; practice making collect calls; and instruct him or
her to call home immediately if anything unusual happens. If you feel your
child is vulnerable to abduction, get professional counseling. Do not
merely tell a friend about your fears.
The Importance of a Custody Decree
Under the laws of many American states and many foreign countries, if there
is no decree of custody prior to an abduction, both parents are considered
to have equal legal custody of their child. If you are contemplating
divorce or separation, or are divorced or separated, or even if you were
never legally married to the other parent, obtain a decree of sole custody
or a decree that prohibits the travel of your child without your permission
or that of the court as soon as possible. If you have or would prefer to
have a joint custody decree, make certain that it prohibits your child from
traveling abroad without your permission or that of the court.
How to Draft or Modify a Custody Decree
A well-written custody decree is an important line of defense against
international parental child abduction. NCMEC, in its publication Family
Abduction: How to Prevent an Abduction and What to Do If Your Child is
Abducted, has several recommendations to help prevent the abduction of your
child if your spouse is a legal permanent resident alien or a U.S. citizen
with ties to a foreign country. For instance, it may be advisable to
include court-ordered supervised visitation and/or prohibiting your child
from traveling without your permission or that of the court. If the
country to which your child might be taken is a member of the Hague
Convention on International Child Abduction (see page 9), the custody
decree should state that the parties agree that the terms of the Hague
Convention apply should an abduction or wrongful retention occur. The ABA
also suggests having the court require the alien parent or the parent with
ties to a foreign country to post a bond. This may be useful both as a
deterrent to abduction and, if forfeited because of an abduction, as a
source of revenue for you in your efforts to locate and recover your child.
For further information, you may contact the NCMEC at the address on page
19.
How a Custody Decree Can Help
Obtain several certified copies of your custody decree from the court that
issued it. Give a copy to your child's school and advise school personnel
to whom your child may be released.
U.S. Passports
From the Department of State, you may learn whether your child has been
issued a U.S. passport. You may also ask that your child's name be entered
into the State Department's passport name check system. This will enable
the Department to notify you or your attorney if an application for a U.S.
passport for the child is received anywhere in the United States or at any
U.S. embassy or consulate abroad. If you have a court order that either
grants you sole custody or prohibits your child from traveling without your
permission or the permission of the court, the Department may also refuse
to issue a U.S. passport for your child. The Department may not, however,
revoke a passport that has already been issued to the child.
To inquire about a U.S. passport or to have your child's name entered into
the name check system, mail or fax your request to:
Office of Passport Policy and Advisory Services Passport Services, Suite
260 1111 19th Street, N.W. Washington, D.C. 20522-1705 Tel. (202) 955-0377
Fax (202) 955-0230
With your request, include your child's full name or names, date of birth,
place of birth, and the address and telephone number(s) where you may be
contacted. If there is a court order relating to the custody or travel of
the child, include a complete copy.
Foreign Passports € the Problem of Dual Nationality
Many U.S. citizen children who fall victim to international parental
abduction possess dual nationality. While the Department of State will
make every effort to avoid issuing a U.S. passport if the custodial parent
has provided a custody decree, the Department cannot prevent embassies and
consulates of other countries in the United States from issuing their
passports to children who are also their nationals. You can, however, ask
a foreign embassy or consulate not to issue a passport to your child. Send
the embassy or consulate a written request, along with certified complete
copies of any court orders addressing custody or the overseas travel of
your child you have. In your letter, inform them that you are sending a
copy of this request to the U.S. Department of State. If your child is
only a U.S. citizen, you can request that no visa for that country be
issued in his or her U.S. passport. No international law requires
compliance with such requests, but some countries will comply voluntarily.
PART II
WHAT THE STATE DEPARTMENT CAN AND CANNOT DO WHEN A CHILD IS
ABDUCTED ABROAD
When a U.S. citizen child is abducted abroad, the State Department's Office
of Children's Issues (CI) works with U.S. embassies and consulates abroad
to assist the left-behind parent in a number of ways. There are, however,
a number of things that we cannot do.
WHAT THE STATE DEPARTMENT CAN DO:
In cases where the Hague Convention on the Civil Aspects of International
Child Abduction applies (see Part IV):
-- assist parents in filing an application with foreign authorities for
return of the child;
-- In other cases, attempt to locate, visit and report on the child's
general welfare;
-- Provide the left-behind parent with information on the country to which
the child was abducted, including its legal system, family laws, and a list
of attorneys there willing to accept American clients;
In all cases:
-- provide a point of contact for the left-behind parent at a difficult
time;
-- Monitor judicial or administrative proceedings overseas;
-- Assist parents in contacting local officials in foreign countries or
contact them on the parent's behalf;
-- Provide information concerning the need for use of federal warrants
against an abducting parent, passport revocation, and extradition from a
foreign country to effect return of a child to the U.S.;
-- Alert foreign authorities to any evidence of child abuse or neglect.
WHAT THE STATE DEPARTMENT CANNOT DO:
-- Intervene in private legal matters between the parents;
-- Enforce an American custody agreement overseas (U.S. custody decrees are
not automatically enforceable outside of U.S. boundaries);
-- Force another country to decide a custody case or enforce its laws in a
particular way;
-- Assist the left-behind parent in violating foreign laws or reabduction
of a child to the United States;
-- Pay legal or other expenses;
-- Act as a lawyer or represent parents in court.
PART III
HOW TO SEARCH FOR A CHILD ABDUCTED ABROAD
Note: If your child has been abducted to a country that is a party to the
Hague Convention on International Child Abduction, see page 8 before you
read further. As of January 1995, in addition to the United States, the
following countries are party to the Convention:
Argentina Finland Monaco
Australia Former Yugoslav Republic Netherlands
Austria of Macedonia New Zealand
Bahamas France Norway
Belize Germany Panama
Bosnia-Hercegovina Greece Poland
Burkina Faso Honduras Portugal
Canada Hungary Romania
Chile Ireland Spain
Croatia Israel Sweden
Cyprus Luxembourg Switzerland
Denmark Mauritius United Kingdom
Ecuador Mexico
Where to Report Your Missing Child
1. If your child has been abducted, file a missing person report with
your local police department and request that your child's name and
description be entered into the "missing person" section of the National
Crime Information Center (NCIC) computer. This is provided for under the
Missing Children's Act of 1982. The abductor does not have to be charged
with a crime when you file a missing person report. In addition, through
INTERPOL, the international criminal police organization, your local police
can request that a search for your child be conducted by the police in the
country where you believe your child may have been taken. You may be able
to achieve all of the above even if you do not have a custody decree.
2. Contact the National Center for Missing and Exploited Children (NCMEC)
at 1-800-THE LOST/1-800-843-5678. With the searching parent's permission,
the child's photograph and description may be circulated to the media in
the country to which you believe the child may have been taken.
At the same time that you report your child missing, you should contact a
lawyer to obtain a custody decree if you do not already have one. In many
states, a parent can obtain a temporary custody decree if the other parent
has taken their child.
3. Request information about a possible U.S. passport and have your
child's name entered into the U.S. passport name check system. A U.S.
passport for a child under 18 years expires after 5 years. If you do not
know where your child is, but information about the child is in the name
check system, it may be possible to locate him or her through the passport
application process. All U.S. passport agencies and almost all U.S.
embassies and consulates are on-line with the name check system.
4. The Department of State, when requested to do so, conducts welfare and
whereabouts searches for American citizens missing abroad. The Office of
Children's Issues communicates such requests to the U.S. embassy or
consulate responsible for the area to which you believe your child has been
abducted. Call us on 202-736-7000 and have ready as much as you can of the
following information on the child:
-- full name (and any aliases),
-- date and place of birth,
-- passport number, date, and place of issuance;
and on the abductor:
-- full name (and any aliases),
-- date and place of birth,
-- passport number, date, and place of issuance,
-- occupation,
-- probable date of departure,
-- flight information,
-- details of ties to a foreign country, such as the names, addresses, and telephone
numbers of friends, relatives, place of employment, or business connections
there.
A consular officer overseas, working with this information, will try to
find your child. The consular officer may also request information from
local officials on your child's entry or residence in the country.
Unfortunately, not every country maintains such records in a retrievable
form, and some countries may not release such information.
We may also ask you for photographs of both your child and the abducting
parent because these are often helpful to foreign authorities trying to
find a missing child.
The Search and Recovery--a Basic Guide
It is possible that none of the institutions listed above (the police, the
NCMEC, or the Department of State) will succeed in locating your child
right away and you will need to carry out the search on your own. As you
search, you should, however, keep these institutions informed of your
actions and progress.
This booklet attempts to cover the international aspects of your search and
recovery effort, but for other information, you should have a more basic
guide. The National Center for Missing and Exploited Children publishes
Family Abduction: How to Prevent an Abduction and What to Do If Your Child
Is Abducted. For a copy, call 1-800-843-5678 (or 703-235-3900), or write the
NCMEC at: 2101 Wilson Boulevard, Suite 550; Arlington, VA 22201.
This publication guides you through the U.S. legal system, helps you organize
your search, and supplies a list of local support groups. We have relied heavily
on the NCMEC guide for the following list of suggestions.
Further Steps to Take in Your Search
-- One of the best ways to find your child overseas is through
establishing friendly contact with relatives and friends of the other
parent, either here or abroad. You may have more influence with such
persons than you suspect, and their interest in your child's welfare may
lead them to cooperate with you.
-- Under the U.S. Department of Health and Human Services, the Office of
Child Support Enforcement maintains the Federal Parent Locator Service
(FPLS). The primary purpose of this service is to locate parents who are
delinquent in child support payments, but the service will also search for
parental abductors when requested to do so by an authorized person.
Generally speaking, an authorized person is a state court judge, police
officer, prosecutor, or other state official seeking to enforce a child
custody order.
Using the abductor's social security number, the FPLS searches the records
maintained by such federal agencies as the Internal Revenue Service,
Veterans Administration, Social Security Administration, Department of
Defense, and the National Personnel Records Center and Department of Labor
records. An abductor who has had a connection with any of the above might,
even from abroad, renew a connection with one of them. To learn how to
access the services of the FPLS, contact your local or state Child Support
Enforcement office. These offices are listed under government listings in
your telephone directory.
-- To obtain information on requests that may have been made by the
abductor to your child's school for the transfer of your child's records,
you can contact the principal of the school. You will need to give the
school a certified copy of your custody decree.
-- You can find out from the National Center for Missing and Exploited
Children how to prepare a poster on your child. A poster may assist
foreign authorities in attempting to locate your child.
-- You can ask your local prosecutor to contact the U.S. Postal Inspection
Service to see if a 'mail cover' can be put on any address that you know of
in the United States to which the abductor might write.
-- You can ask local law enforcement authorities to obtain, by subpoena or
search warrant, credit card records that may show where the abductor is
making purchases. In the same manner, you can try to obtain copies of
telephone company bills of the abductor's friends or relatives who may have
received collect calls from the abductor.
PART IV
ONE POSSIBLE SOLUTION: THE HAGUE CONVENTION
The most difficult and frustrating element for most parents whose child has
been abducted abroad is that U.S. laws and court orders are not usually
recognized in the foreign country and therefore are not directly
enforceable abroad. Each sovereign country has jurisdiction within its own
territory and over persons present within its borders, and no country can
force another to decide cases or enforce laws within its confines in a
particular way.
The increase in international marriages since World War II increased
international child custody cases to the point where 23 nations, meeting at
the Hague Conference on Private International Law in 1976, agreed to seek a
treaty to deter international child abduction. Between 1976 and 1980, the
United States was a major force in preparing and negotiating the Hague
Convention on the Civil Aspects of International Child Abduction. The
Convention came into force for the United States on July 1, 1988, and
applies to abductions or wrongful retentions between party countries that
occurred on or after that date. In the United States, federal legislation,
the International Child Abduction Remedies Act (P.L. 100-300), was enacted
to implement the Convention in this country.
The United States actively encourages other countries to become party to
the Convention. As of January 1995, the Convention is also in effect
between the United States and:
Argentina Finland Monaco
Australia Former Yugoslav Republic Netherlands
Austria of Macedonia New Zealand
Bahamas France Norway
Belize Germany Panama
Bosnia-Hercegovina Greece Poland
Burkina Faso Honduras Portugal
Canada Hungary Romania
Chile Ireland Spain
Croatia Israel Sweden
Cyprus Luxembourg Switzerland
Denmark Mauritius United Kingdom
Ecuador Mexico
Other countries are working toward ratification. Contact the Office of
Children's Issues to learn if additional countries have joined.
If your child has been abducted to a country that is not party to the
Convention, see the section entitled "Legal Solutions in Countries Not
Party to the Hague Convention."
What Is Covered by the Convention
The countries that are parties to the Convention have agreed that, subject
to certain limited exceptions and conditions outlined below, a child who is
habitually resident in one country that is a party to the Convention and
who is removed to or retained in another country that is party to the
Convention in breach of the left-behind parent's custody rights shall be
promptly returned to the country of habitual residence. The Convention
also provides a means for helping parents to exercise visitation rights
abroad.
There is a treaty obligation to return an abducted child below the age of
16 if application is made within one year from the date of the wrongful
removal or retention. After one year, the court is still obligated to
order the child returned unless the person resisting return demonstrates
that the child is settled in the new environment. A court may refuse to
order a child returned if there is a grave risk that the child would be
exposed to physical or psychological harm or otherwise placed in an
intolerable situation in his or her country of habitual residence. A court
may also decline to return the child if the child objects to being returned
and has reached an age and degree of maturity at which the court can take
account of the child's views. Finally, the return of the child may be
refused if the return would violate the fundamental principles of human
rights and freedoms of the country where the child is being held. These
exceptions have been interpreted narrowly by courts in the United States
and the other countries party to the Convention.
How to Invoke the Hague Convention
You do not need to have a custody decree to invoke the Convention.
However, to apply for the return of your child, you must have been actually
exercising a "right of custody" at the time of the abduction, and you must
not have given permission for the child to be removed or, in the case of a
retention, to be retained beyond a specified, agreed-upon period of time.
The Convention defines "rights of custody" as including "rights relating to
the care of the person of the child and, in particular, the right to
determine the child's place of residence." This "right of custody" may
arise from operation of law as well as an order of custody. If there was
no court order in effect at the date of the abduction, custodial rights are
provided in the statutes of most states.
You may apply for the return of your child or the ability to exercise your
visitation rights. You can also ask for assistance in locating your child
and for information on your child's welfare.
Each country that is a party to the Convention has designated a Central
Authority to carry out specialized duties under the Convention. You may
submit an application either to the U.S. Central Authority or directly to
the Central Authority of the country where the child is believed to be
held. The Central Authority for the United States is the Department of
State's Office of Children's Issues (CI).
An application should be submitted as soon as possible after an abduction
or wrongful retention has taken place. As stated above, there is a time
factor of one year involved. If no custody decree exists for the
left-behind parent, submit the application anyway. Detailed instructions
to invoke the Hague Convention are found in Part VIII.
The Role of the U.S. Central Authority
CI will review your application to ensure that it complies with the
Convention. If it does, we will forward it to the foreign Central
Authority and work with that authority until your case is resolved. If the
abducting parent does not voluntarily agree to the return of your child,
you may be required to retain an attorney abroad to present your case under
the Hague Convention to the foreign court. If you need to retain an
attorney abroad, see Using the Civil Justice System€How to Proceed.
The Department of State cannot act as an agent or attorney in your case.
We can, however, help in many other ways. We can give you information on
the operating procedures of the Central Authority in the country where your
child is believed to be located. We can help you obtain information
concerning the wrongfulness of the abduction under the laws of the state in
which the child resided prior to the abduction. At your request, we can
ask for a status report six weeks after court action commences in the other
country.
The Central Authority in the country where your child is located, however,
has the primary responsibility of responding to your application. In the
words of the Convention, that country has agreed to "ensure that rights of
custody and access under the law of one Contracting State are effectively
respected in the other Contracting State."
Good News Plus a Note of Caution for Applicants Under the Hague Convention
The Hague Convention on International Child Abduction is a success story.
It has improved the likelihood and speed of return of abducted or
wrongfully retained children from countries that are party to the
Convention. In addition, the Convention has begun to influence some
non-Hague countries where courts now look for guidance to the non-hostile
pattern of resolution employed in Hague cases. The Convention's increasing
success is encouraging more countries to become party to the Convention.
Twenty-seven countries have joined since the United States became the 10th
country in July 1988. In addition, the reputation of the Hague Convention
is such that, when an abducting or retaining parent learns that a Hague
application has been filed, he or she may be more likely to return the
child voluntarily. The majority of Hague cases still, however, require the
applying parent to retain an attorney in the country where the child is
located to petition that judiciary for return.
A note of caution: Criminal charges may have a distorting effect on the
operation of the Hague Convention and may even prove counterproductive.
With the Hague Convention, the emphasis is on the swift return of a child
to his or her place of habitual residence where the custody dispute can
then be resolved, if necessary, in the courts of that jurisdiction. As a
rule, therefore, it is advisable to await the outcome of return proceedings
under the Convention before deciding whether to initiate criminal
proceedings against the other parent. Some courts have denied return of
children solely because the taking parent would be arrested if they
accompanied the child home. Many of these courts, U.S. and foreign, have
held that the arrest of the parent would expose the child to psychological
harm (Article 13(b)).
Children Abducted to the United States
The U.S. Central Authority also handles cases of children abducted to the
U.S., provided the case meets the requirements of the Hague application and
the child's country.
PART V
LEGAL SOLUTIONS IN COUNTRIES NOT PARTY TO THE HAGUE CONVENTION
If your child has been abducted to a country that is not a party to the
Hague Convention, you can seek legal remedies against the abductor, in the
United States and abroad, from both the civil and criminal justice systems.
The family court system from which you get your custody decree is part of
the civil justice system. At the same time you are using that system, you
can also use the criminal justice system consisting of the police,
prosecutors, and the FBI. We will discuss each system in turn.
Using the Civil Justice System
How To Proceed
After you obtain a custody decree in the United States, your next step is
to use the civil justice system in the country to which your child has been
abducted.
The Office of Children's Issues (CI) can provide information on the
customs and the legal practices in the country where your child is. We can
also give you general information on how to serve process abroad or obtain
evidence from abroad, and on how to have documents authenticated for use in
a foreign country. You may write or telephone CI for information sheets,
such as: Retaining a Foreign Attorney, and Authentication (or
Legalization) of Documents in the United States for Use Abroad.
To obtain authoritative advice on the laws of a foreign country or to take
legal action in that country, you should retain an attorney there. U.S.
consular and diplomatic officers are prohibited by law from performing
legal services (22 C.F.R. 92.81). We can, however, provide you with a list
of attorneys in a foreign country who speak English, who may be experienced
in parental child abduction or family law, and who have expressed a
willingness to represent Americans abroad. U.S. embassies and consulates
abroad prepare these lists. Cautionary note: Attorney fees can vary
widely from country to country. The fee agreement that you make with your
local attorney should be put into writing as soon as possible to avoid a
potentially serious misunderstanding later.
Although officers at U.S. embassies and consulates cannot take legal action
on behalf of U.S. citizens, consular officers can assist in communication
problems with a foreign attorney. Consular officers may at times be able
to inquire about the status of proceedings in the foreign court, and they
will coordinate with your attorney to ensure that your rights as provided
for by the laws of that foreign country are respected.
Once you retain a foreign attorney, send him or her a certified copy of
your custody decree and/or state and federal warrants regarding the
abducting parent. Also send copies of your state's laws on custody and
parental kidnapping and the Federal Parental Kidnapping Prevention Act and
copies of reported cases of your state's enforcement of foreign custody
decrees under Section 23 of the Uniform Child Custody Jurisdiction Act.
The National Center for Missing and Exploited Children can help you gather
these materials.
What Are Your Chances of Enforcing Your U.S. Custody Order Abroad?
A custody decree issued by a court in the United States has no binding
legal force abroad, although it may have persuasive force in some
countries. Foreign courts decide child custody cases on the basis of their
own domestic relations law. This may give a "home court" advantage to a
person who has abducted a child to the country of his or her origin. You
could also be disadvantaged if the country has a cultural bias in favor of
a mother or a father. A U.S. custody decree may, however, be considered by
foreign courts and authorities as evidence and, in some cases, it may be
recognized and enforced by them on the basis of comity (the voluntary
recognition by courts of one jurisdiction of the laws and judicial
decisions of another). Your chances of having your U.S. court order
enforced depend, to a large degree, upon the tradition of comity that the
legal system of the country in question has with the U.S. legal system. CI
can give you some information on these traditions.
Using the Criminal Justice System: What Are the Risks?
Law enforcement authorities in the United States and abroad may be valuable
sources of information. However, formal resort to the criminal justice
system (filing of charges, issuance of an arrest warrant, transmission of
an extradition request to a foreign government under an applicable treaty,
and criminal prosecution) should be considered carefully. As noted on page
8, this is especially true if the other country concerned is a party to the
Hague Convention. You should be aware that while you may have a degree of
control over the ongoing civil procedures, you may not be able to effect
the pursuit of criminal actions once charges are filed. Check with the
prosecutor to determine if your wishes would be considered in the criminal
action.
CI can obtain information on the criminal justice system of a particular
country and on whether or not it is likely to cooperate in some form in
parental child abduction cases. Your decision on whether or not to try to
utilize the criminal justice system depends upon the circumstances of your
case, but you should understand that you are likely to lose control of your
case to a large extent when formal charges have been filed and an arrest
warrant has been issued. You should also realize that extradition of the
abductor to the United States is unlikely, and that neither extradition nor
prosecution of the abductor guarantees the return of your child and may in
some cases complicate, delay, or ultimately jeopardize return.
Presumably, your overriding interest is to obtain the return of your child.
That is not the primary responsibility of the prosecutors. When the
criminal justice system becomes involved in a case, there are several
interests at stake, some of which are in conflict: the interests of the
child, the interests of each parent/guardian and other immediate family
members, the interests of the civil justice system in a stable and workable
custody arrangement, and the interests of the criminal justice system in
apprehending, prosecuting, and punishing those who have violated criminal
laws of their jurisdiction in connection with a parental child abduction.
Another factor to consider is the possible reaction of the abductor to the
filing of criminal charges and the threat of ultimate prosecution and
punishment. Although some individuals might be intimidated enough to
return the child (with or without agreement by the prosecutors to the
condition that the charges be dropped), others might go deeper into hiding,
particularly if they are in a country where they have family or community
support. If an abductor is ultimately brought to trial, how far are you
willing to go in pursuing criminal prosecution? Unless you are prepared to
testify in court against the abductor, you should not pursue criminal
prosecution. A final factor to consider is the effect on the child of
seeing the abducting parent prosecuted and perhaps incarcerated, with you
playing an active role in that process.
The Steps To Take in Case You Decide to Use the Criminal Justice System
Once you have a custody decree and have decided to pursue criminal
remedies, you or your attorney may contact your local prosecutor or law
enforcement authorities to request that the abducting parent be criminally
prosecuted and that an arrest warrant be issued, if provided for by your
state law. In some states, parental child abduction or custodial
interference is a misdemeanor; however, in most states it is a felony. If
you are able to obtain a state warrant, the local prosecutor can contact
the F.B.I. or your state's U.S. Attorney to request the issuance of a
Federal Unlawful Flight to Avoid Prosecution (UFAP) warrant for the arrest
of the abductor. The Federal Parental Kidnapping Prevention Act of 1980
provides for the issuance of this warrant.
Furthermore, the International Parental Kidnapping Crime Act of 1993 (H.R.
3378) makes it an offense to remove a child from the United States or
retain a child (who has been in the United States) outside the United
States with intent to obstruct the law from exercise of parental rights
(custody or visitation). An unlawful retention after the date of enactment
could violate the statute, even though the actual removal of the child
occurred before the date of enactment. Once a warrant has been issued for
the abductor's arrest, ask local law enforcement authorities or the F.B.I.
to enter the abductor's name in the "wanted persons" section of the
National Crime Information Center (NCIC) computer.
Prosecution of Agents or Accomplices of the Abductor
Find out if your state has laws that allow legal action to be taken against
agents or accomplices to an abduction. Consider whether such actions would
be useful in learning your child's whereabouts or compelling the return of
your child.
Implications of an Arrest Warrant for a U.S. Citizen
If the abducting parent is a U.S. citizen and the subject of a federal
arrest warrant, the F.B.I. or U.S. Attorney's office can ask the Department
of State, Passport Services, to revoke the person's U.S. passport. This
may or may not be a burden to an abducting parent who, as a dual national,
may also carry a foreign passport. However, an abducting parent who is
only a U.S. citizen becomes an undocumented alien in a foreign country if
his or her U.S. passport is revoked. Some countries may deport
undocumented aliens or at least make it difficult for them to remain in the
country.
For a U.S. passport to be revoked, the F.B.I. or U.S. Attorney must send a
request for such action and a copy of the Federal warrant to the
Department of State's Office of Passport Policy and Advisory Services
(telephone 202-955-0377). The regulatory basis for revocation of passports
is found in the Code of Federal Regulations: 22 C.F.R. 51.70, et seq.
In certain circumstances you may decide that revoking the abducting
parent's passport will not achieve the desired result. For example, if you
know the location of the other parent, there is always the possibility of
negotiation and a settlement or, at least, there is the possibility of
communication with your child. Also, if the abducting parent is
threatened with passport revocation, he or she might choose to flee with
your child again.
Implications of a Warrant for a Non-U.S. Citizen
Even if the abductor is not a U.S. citizen, the existence of a Federal
warrant is important. Such a warrant may encourage the abducting parent to
return the child voluntarily, especially if he or she has business or other
reasons to travel to the United States. The warrant also serves to inform
the foreign government that the abduction of the child is a violation of
U.S. law and that the abductor is a federal fugitive. An arrest warrant is
also necessary if you wish to have authorities seek extradition of the
abductor.
The Possibility of Extradition
Through INTERPOL and other international links, national law enforcement
authorities in many countries regularly cooperate in the location and
apprehension of international fugitives. Extradition, the surrender of a
fugitive or prisoner by one jurisdiction for criminal prosecution or
service of a sentence in another jurisdiction, is rarely a viable approach
in international child abduction cases. Extradition is utilized only for
criminal justice purposes in cases that local prosecutors believe can be
successfully prosecuted due to the sufficiency of the evidence, which would
presumably include your testimony. Moreover, it must be remembered that
extradition does not apply to the abducted or wrongfully retained child,
but only to the abductor. There is no guarantee that the child will be
returned by foreign authorities in connection with extradition of the
alleged wrongdoer. Threatened with impending extradition, abducting
parents in other countries have hidden the child or children with a friend
or relative in the foreign country.
Another reason that extradition is seldom useful is that the offenses of
parental child abduction or custodial interference are covered by only a
few of the extradition treaties now in force between the United States and
more than 100 foreign countries. Most of these treaties contain a list of
covered offenses and were negotiated before international parental child
abduction became a widely recognized phenomenon. With respect to these
older treaties, there was thus no intent on the part of the negotiators to
cover such conduct, and it cannot therefore be validly argued that parental
child abduction is a covered extraditable offense, even if the language
used in the list of offenses covered by a given treaty appears somewhat
broad (e.g., "abduction" or "kidnapping" or "abduction/kidnapping of
minors").
In negotiating more modern extradition treaties, the United States has
tried to substitute a "dual criminality" approach for a rigid list of
extraditable offenses, or at least has tried to combine the two. Under an
extradition treaty with a dual criminality provision, an offense is covered
if it is a felony in both countries. Accordingly, if the underlying
conduct involved in parental child abduction or custodial interference is a
felony in both the U.S. and foreign jurisdictions involved, then that
conduct is an extraditable offense under an extradition treaty based on
dual criminality.
Despite the fact that parental child abduction may be covered by certain
extradition treaties, you should be aware of potential difficulties in
utilizing them, apart from the possible counterproductive effects already
discussed. Specifically, nearly all civil law countries (in contrast with
common law countries like the United States, United Kingdom, Canada,
Australia) will not extradite their own nationals. Nearly all the nations
of Latin America and Europe are civil law countries. Whatever the terms of
any applicable extradition treaty, experience has also shown that foreign
governments are generally reluctant at best (and often simply unwilling) to
extradite anyone (their own citizens, U.S. citizens, or third country
nationals) for parental child abduction.
For extradition to be possible, therefore:
--your local prosecutor must decide to file charges and pursue the case, and
you probably must be prepared to testify in any criminal trial;
--there must be an extradition treaty in force between the United States and
the country in question;
--the treaty must cover the conduct entailed in parental child abduction or
custodial interference;
--if the person sought is a national of the country in question, that
country must be willing to extradite its own nationals; and,
--the country in question must be otherwise willing to extradite persons for
parental child abduction/custodial interference (i.e., not refuse to do so
for "humanitarian" or other policy reasons).
The Possibility of Prosecution of an Abductor in a Foreign Country
A final possibility in the area of criminal justice is prosecution of the
abductor by the authorities of the foreign country where he or she is
found. In many countries (not the United States), nationals of the country
can be prosecuted for acts committed abroad under the "nationality" basis
for criminal jurisdiction, if the same conduct would constitute a criminal
offense under local law. U.S. law enforcement authorities can request such
a prosecution and forward the evidence that would have been used in a U.S.
prosecution. U.S. witnesses may, of course, have to appear and testify in
the foreign proceeding. Like the courses of action discussed above, this
approach may be counterproductive and will not necessarily result in the
return of the child.
PART VI
OTHER SOLUTIONS: SETTLING OUT OF COURT
Promoting Communication Between Parents and Children
Legal procedures can be long and expensive. You may have greater success
working in the area of negotiation with the abducting parent. In some
cases, friends or relatives of the abductor may be able to help you
establish amicable relations with the abductor and may be willing to help
mediate a compromise. A decrease in tension might bring about the return
of your child, but, even if it does not, it can increase your chances of
being able to visit the child and participate in some way in the child's
upbringing. Sometimes compromise and some kind of reconciliation are the
only solution.
Obtaining Information on Your Child's Welfare
If your child has been found, but cannot be recovered, you can request that
a U.S. consular officer visit the child. If the consul succeeds in seeing
your child, he or she will send you a report on your child's health, living
conditions, schooling, and other information. Sometimes consular officers
are also able to send you letters or photos from your child. If the
abducting parent will not permit the consular officer to see your child,
the U.S. embassy or consulate will request the assistance of local
authorities, either to arrange for such a visit or to have a local social
worker make a visit and provide a report on your child's health and
welfare. Contact the Office of Children's Issues (CI) to request such a
visit.
Working With Foreign Authorities
In child abduction cases, consular officers routinely maintain contact with
local child welfare and law enforcement officers. If there is evidence of
abuse or neglect of the child, the U.S. embassy or consulate will request
that local authorities become involved to ensure the child is protected.
This may mean removal of your child from the home for placement in local
foster care.
The Question of Desperate Measures/Reabduction
Consular officers cannot take possession of a child abducted by a parent or
aid parents attempting to act in violation of the laws of a foreign
country. Consular officers must act in accordance with the laws of the
country to which they are accredited.
The Department of State strongly discourages taking desperate and possible
illegal measures to return your child to the United States. If you are
contemplating such desperate measures, you should read the information
available from the National Center for Missing and Exploited Children about
the emotional trauma inflicted on a child who is a victim of abduction and
reabduction. The NCMEC advises against reabduction not only because it is
illegal, but also because of possible psychological harm to the child.
Attempts to use self-help measures to bring an abducted child to the United
States from a foreign country may endanger your child and others, prejudice
any future judicial efforts you might wish to make in that country to
stabilize the situation, and result in your arrest and imprisonment in that
country. In imposing a sentence, the foreign court will not necessarily
give weight to the fact that the would-be abductor was the custodial parent
in the United States or otherwise had a valid claim under a U.S. court
order (e.g., failure of the foreign parent to honor the terms of a joint
custody order).
If you do succeed in leaving the foreign country with your child, you, and
anyone who assisted you, may be the target of arrest warrants and
extradition requests in the United States or any other country where you
are found. Even if you are not ultimately extradited and prosecuted, an
arrest followed by extradition proceedings can be very disruptive and
disturbing for both you and your child.
Finally, there is no guarantee that the chain of abductions would end with
the one committed by you. A parent who has reabducted a child may have to
go to extraordinary lengths to conceal his or her whereabouts, living in
permanent fear that the child may be reabducted again.
PART VII
REFERENCE
Directory -- Where to Go for Assistance
Consular Assistance:
Office of Children's Issues (CI)
Overseas Citizens Services
Department of State
220l C Street, N.W.,
Room 4817
Washington, D.C. 20520-4818
Phone: 202-736-7000
Fax: 202-647-2835
U.S. Passport Restrictions:
Office of Passport Policy and Advisory Services
Passport Services,
Suite 260
Department of State
1111 19th Street, N.W.
Washington, D.C. 20522-1705
Phone: 202-955-0377
Fax: 202-955-0230
For General Technical Assistance:
National Center for Missing and Exploited Children (NCMEC)
2101 Wilson Boulevard,
Suite 500
Arlington, VA 22201
Phone: 703-235-3900
24-hour hot line for emergencies:
1-800-843-5678
TTD: 1-800-826-7653
For ABA Publications:
American Bar Association (ABA)
750 North Lake Shore Drive
Chicago, IL 60611
Phone: 312-988-5555
Federal Parent Locator Service (FPLS):
Note: The FPLS can be accessed through local and state Child Support
Enforcement offices. The names of those offices are available in telephone
books and from the address below.
Department of Health and Human Services
Office of Child Support Enforcement
Federal Parent Locator Service (FPLS)
370 L'Enfant Promenade, S.W.
Washington, D.C. 20447
Phone: 202-401-9267
Reading List
This list was compiled in January 1995. It is intended to give some idea
of the relevant literature, but you should not regard it as complete or
authoritative.
Atwood, "Child Custody Jurisdiction and Territoriality," 52 Ohio St. L.J.
369 (1991)
Charlow, "Jurisdictional Gerrymandering and the Parental Kidnapping
Prevention Act," 25 Fam. L.Q. 299 (1991)
Copertino, "Hague Convention on the Civil Aspects of International Child
Abduction: An Analysis of its Efficacy," 6 Conn. J. Int'l L. 715 (1991)
Crawford, "Habitual Residence of the Child as the Connecting Factor in
Child Abduction Cases: A Consideration of Recent Cases," 1992 Jurid. Rev.
177
Crouch, "Use, Abuse, and Misuse of the UCCJA and PKPA," 6 Am. J. Fam. L.
147 (1992)
Davis, "The New Rules on International Child Abduction: Looking Forward to
the Past," 3 Aust'l J. Fam. L. 31 (1990)
De Hart, International Child Abduction: A Guide to Applying the 1988 Hague
Convention, with Forms (A publication of the Section of Family Law,
American Bar Association) (1993)
Edwards, "The Child Abduction Agony," 140 New L.J. 59 (1990)
Evans, "International Child Abduction," 142 New L.J. 232 (1992)
Frank, "American and International Responses to International Child
Abductions," 16 N.Y.U. J. Int'l L. & Pol. 415 (1984)
Girdner, "Obstacles to the Recovery and Return of Parentally Abducted
Children," 13 Children's Legal Rts J. 2 (1992)
Greif, When Parents Kidnap, The Families Behind the Headlines
Hilton, "Handling a Hague Trial," 6 Am. J. Fam. L. 211 (1992)
Hoff, Parental Kidnapping, How to Prevent an Abduction and What to Do If
your Child Is Abducted (A publication of the National Center for Missing
and Exploited Children.
Kindall, "Treaties - Hague Convention on Child Abduction - Wrongful Removal
- Grave Risk or Harm to Child" 83 Am. J. Int'l L. 586 (1989)
Marks, "Fighting Back. The Attorney's Role in a Parental Kidnapping Case,"
64 Fla. B.J. 23 (1990)
Murray, "One Child's Odyssey Through the Uniform Child Custody Jurisdiction
and Parental Kidnapping Prevention Acts," 1993 Wis. L. Rev. 589
Oberdorfer, "Toward a Reasoned Response to Parental Kidnapping," 75 Minn.
L. Rev. 1701 (1991)
Pfund, "The Hague Convention on International Child Abduction, the
International Child Abduction Remedies Act, and the Need for Availability
of Counsel for All Petitioners," 24 Fam. L.Q. 35 (1990)
Rutherford, "Removing the Tactical Advantages of International Parental
Child Abductions under the 1980 Hague Convention on the Civil Aspects of
International Child Abductions," 8 Ariz. J. Int'l & Comp. L. 149 (1991)
Sagatun, "Parental Child Abduction: The Law, Family Dynamics, and Legal
System Responses," 18 Journal of Crim. Just. (1990)
Sharpless, "The Parental Kidnapping Prevention Act: Jurisdictional
Considerations Where There are Competing Child Custody Orders," 13 J. Juv.
L. 54 (1992)
Shirman, "International Treatment of Child Abduction and the 1980 Hague
Convention," 15 Suffolk Transnat'l L.J. 222 (1991)
Stotter, "The Light at the End of the Tunnel: The Hague Convention on
International Child Abduction Has Reached Capitol Hill," 9 Hastings Int'l
and Comp. L. Rev. 285 (1986)
Stranko, "International Child Abduction Remedies," The Army Lawyer 28
(Department of the Army pamphlet 27-50-248, July 1993)
Family Advocate, A Practical Journal of the American Bar Association Family
Law Section, Spring 1987. (Special issue on divorce law around the world
and international parental child abduction.)
Family Advocate, A Practical Journal of the American Bar Association Family
Law Section, Spring 1993. (Special issue on international family law.)
Family Law Quarterly,, Spring 1994. (Special issue on international family
law.)
"The Hague International Child Abduction Convention and the International
Child Abduction Remedies Act: Closing Doors to the Parent Abductor," 2
Transnat'l Law 589 (1989)
"The Hague Convention on International Child Abduction: A Practical
Application," 10 Loy. L.A. Int'l & Comp. L.J. 163 (1988)
"International Child Abduction and the Hague Convention: Emerging Practice
and Interpretation of the Discretionary Exception," 25 Tex. Int'l L.J. 287
(1990)
"International Parental Child Abduction: The Need for Recognition and
Enforcement of Foreign Custody Decrees," 3 Emory J. Int'l Dispute
Resolution 205 (1989)
"More Than Mere Child's Play: International Parental Abduction of
Children," 6 Dick. L. Rev. 283 (1988)
"You Must Go Home Again: Friedrich v. Friedrich, The Hague Convention and
the International Child Abduction Remedies Act," 18 N.C. J. Int'l L. & Com.
Reg. 743 (1993)
U.S. Government Documents on the Hague Convention
Department of State notice in the Federal Register of March 26, 1986, pp.
10494-10516.
Senate Treaty Doc. 99-11, 99th Congress, 1st Session.
For the legislative history of the International Child Abduction Remedies
Act, Public Law 100-300, see S.1347 and H.R. 2673, and H.R. 3971- 3972,
100th Congress, and related hearing reports.
Uniform State and Federal Laws on Custody, Parental Child Abduction, and
Missing Children
The Uniform Child Custody Jurisdiction Act of 1968 (UCCJA) is now the law,
with some variations, in every state and the District of Columbia. The Act
is intended to eliminate nationwide the legal incentives for interstate
forum-shopping and child-snatching by parents, and to encourage
communication, cooperation and assistance between state courts in the
resolution of interstate child custody conflicts.
Section 23 of the UCCJA expressly provides that the general policies of the
Act extend to the international arena. It further provides that custody
decrees made in other countries by appropriate judicial or administrative
authorities will be recognized and enforced in this country provided
reasonable notice and opportunity to be heard were given to the affected
persons.
The Parental Kidnapping Prevention Act of 1980 (PKPA) (P.L. 96-611; 28
U.S.C. 1738A, 1738A Note; 18 U.S.C. 1073 Note; 42 U.S.C. 653-55, 663)
requires the appropriate authorities of every state to enforce and not
modify custody and visitation orders made by courts exercising jurisdiction
consistent with standards set by the Act; authorizes the Federal Parental
Locator Service to act on requests from authorized persons to locate the
absconding parent and children who have been abducted or wrongfully
retained; and expressly declares the intent of Congress that the Fugitive
Felon Act applies to state felony cases involving parental kidnapping and
interstate or international flight to avoid prosecutions. The state
prosecutor may formally present a request to the local U.S. Attorney for a
Federal Unlawful Flight to Avoid Prosecution (UFAP) warrant.
The Missing Children's Act of 1982 (P.L. 97-292; 28 U.S.C. 534) provides
for the entry of the names of missing children in the National Crime
Information Center (NCIC). Since the enactment of P.L. 97-292, parents can
ask their local police to enter their children's names into the NCIC
computer and they can verify from the police or, if necessary, from the FBI
that the names of their children are in the system.
The Missing Children's Assistance Act of 1984 (P.L. 98-473; 42 U.S.C. 5771
et. seq.) authorized the establishment of a national clearinghouse (now the
National Center for Missing and Exploited Children) to:
-- Provide technical assistance to local and state governments, public and
private nonprofit agencies, and individuals in locating and recovering
missing children;
-- Coordinate public and private efforts to locate, recover, or reunite
missing children with their legal custodians;
-- Operate a national toll-free hotline through which individuals can
report information on the location of missing children or request
information on procedures for reuniting children with their legal
custodians;
-- Disseminate information on innovative and model missing children's
programs, services, and legislation;
-- Provide technical assistance to law enforcement agencies, state and
local governments, elements of the criminal justice system, public and
private nonprofit agencies, and individuals in the prevention,
investigation, prosecution, and treatment of missing and exploited
children's cases.
National Child Search Assistance Act (P.L. 101-647; 42 U.S.C. 5779, 5780)
passed as part of the Crime Control Act of 1990, requires federal, state,
and local law enforcement to enter reports of a missing child less than 18
and unidentified persons in the National Crime Information Center (NCIC).
It provides for update of records with additional information within 60
days of the original entry, and it provides for close liaison between law
enforcement and the National Center for Missing and Exploited Children for
the exchange of information and technical assistance in missing children
cases.
PART VIII
CHECKLIST FOR ASSISTANCE UNDER THE HAGUE CONVENTION
To invoke the Hague Convention, submit two completed forms (one original
and one copy), plus two copies of your supporting documents. The
application form may be photocopied. Type or print all information.
Furnish as much of the information called for as possible, using an
additional sheet of paper if you need more space. If you have further
questions about the form, you may wish to refer to the text of the
Convention. You may also call the Office of Children's Issues (CI) at
202-736-7000.
It is advisable to have some of the supporting documents translated into
the official language of the requested country. Translations speed up the
overall process. Foreign attorneys and judges act more favorably with such
documents. Ask CI for more information about supporting documents.
You may fax your Hague application to CI, fax number 202-647-2835. Send
originals and supporting documents by mail, express mail, or courier
service to: CA/OCS/CI, Room 4811, Department of State, Washington, D.C.
20520-4818. Be sure to sign the application.
Checklist and Instructions for Completing the Hague Application
Information Block and Details Needed
I. Identity of Child and Parents
Child
Child's Name - The child's full name: last name, first, middle.
Date of Birth - Month/Day/Year.
Place of Birth - City/State/Country.
Address - Child's address in the country of habitual
residence before the abduction or removal.
U.S. Social Security Number - If known. A nine-digit number: 000-00-0000.
Passport/Identity Card - Issuing country and passport or I.D. number.
Nationality - Include all nationalities of the child.
Height - Feet and inches.
Weight (and Sex) - Pounds. Please also include sex of child in this block.
Color of Hair - Child's hair color.
Color of Eyes - Include color photo, if available.
Father
Name - Full name of father, including alternative
spellings of family names.
Date of Birth - of father.
Place of Birth - of father.
Nationality - of father. Include all nationalities.
Occupation - of father.
Passport/Identity Card - of father. Issuing country and number.
Current Address - of father. Include zipcode as well as
and Telephone telephone and fax numbers for work and home.
U.S. Social Security Number - of father.
Country of Habitual - of the father before the abduction or retention.
Residence
Mother
Name - Full name of mother of child, including maiden name.
Date of Birth - of mother.
Place of Birth - of mother.
Nationality - of mother. Include all nationalities.
Passport/Identity Card - of mother. Issuing country and number.
Current Address - of mother. Include zipcode as well as
and Telephone telephone and fax numbers for work and home.
Occupation - of mother.
U.S. Social Security Number - of mother.
Country of Habitual
Residence - of the mother before the abduction or retention.
Date and Place of Marriage - Indicate dates and location of marriage and divorce
and Divorce of the parents of the child. It is important to
clearly state the marital status at the time of
the abduction or retention.
II. Requesting Individual or Institution
This section is for information concerning the person or institution
applying for the return of the child to the United States.
Name - Provide the full name of the person or
institution asking for the child to be returned.
Nationality - of the requester.
Occupation - of the requester (if a person).
Current Address and Telephone - of requester. Include home, work and fax number.
Passport/Identity Card - of requester. (if a person).
Country of Habitual Residence - of requester. (if a person).
Relationship to Child - of requester.
Name, Address, and Tel. - Include zipcode as well as telephone and fax
of Legal Advisor, if any numbers.
III. Information Concerning the Person Alleged to Have Wrongfully Removed
or Retained Child
The information about the abducting parent is needed to assist in locating
the child. Please provide all requested information and any additional
facts that may help find the child.
Name - Full name of parent who has abducted or
wrongfully retained the child.
Known Aliases - of the abductor. Any other names the
abductor may use.
Date of Birth - of the abductor.
Place of Birth - of the abductor.
Nationality - of the abductor. Include all nationalities.
Occupation, Name and - of the abductor since the removal. Provide
Address of Employer any employment information that may be
helpful in locating the abductor, such as
names, addresses and telephone numbers of
relatives and or friends of the abducting
parent who could help locate child(ren).
Passport/Identity Card - of the abductor. Country and number.
U.S. Social Security Card Number - of the abductor.
Current Location or Last - of the abductor in the country were the child
Known Address was taken. Note: NOT IN THE U.S.
Height - of the abductor.
Weight - of the abductor.
Color of Hair - of the abductor.
Color of Eyes - of the abductor. Include photo, if available.
Other Persons With - Provide the name, address and telephone
Possible Additional numbers of anyone in the country to which
Information Relating the child was taken who could give the
to the Whereabouts Central Authority in that country information
of the Child on the child's location.
IV. Time, Place, Date, and Circumstances of the Removal or Retention
Provide the date, to the best of your knowledge, that the child left the
U.S. or when the wrongful retention began. Include the place from which
the child was taken. Describe the legal relationship existing between you
and the abducting parent when the child was removed. What were the
circumstances when the removal or retention occurred?
Did the other parent take the child during a scheduled visitation? Did the
other parent take the child for what you believed would be a short visit
and then inform you that they were staying? Did they purchase round-trip
air tickets to show that they intended to return? Had you and your family
moved to the other country, and then you decided to return to the United
States?
Take this opportunity to tell your story. Try to anticipate what claims
the other parent may make and provide your explanation.
Do not limit yourself to the space provided on the form. Additional pages
may be attached to fully narrate the circumstances. However, please be
concise.
V. Factual or Legal Grounds Justifying Request
Provide information and documentation establishing that you were exercising
a right of custody under the Hague Convention at the time of the child's
removal. Generally, a right of custody is created by a custody order,
when parents are divorced, or by operation of state law, when parents are
still married when the child is taken. The Convention defines "rights of
custody" as including "rights relating to the care of the child and, in
particular, the right to determine the child's place of residence." Thus,
you may have a "right of custody" under the Convention even if you do not
have court-ordered joint or sole custody of the child.
If there is no applicable court or, please provide a copy of the state
statute or case law that establishes your right of custody at the time of
the child's removal. This provision is sometimes found in the estate and
wills section of the state code. Remember, you are not attempting to show
that you would have an equal right to obtain custody in a subsequent
custody proceeding, but that you had and were exercising a right of custody
when the child was taken.
Do NOT wait to get a custody order before filing a Hague application.
VI. Civil Proceeding in Progress, If Any
Indicate any civil action that may be pending (i.e.. custody, divorce).
Name court and hearing dates.
VII. Child Is to Be Returned To:
Name - of person to whom child will be returned.
Date of Birth - of person to whom child will be returned.
Place of Birth - of person to whom child will be returned.
Address - of person to whom child will be returned.
Telephone Number(s) - of person to whom child will be returned.
Proposed Arrangements - Provide exact means by which you propose that
for Return Travel of the child return to the U.S., if this is ordered.
the Child Would you travel to pick up the child? Is the
child old enough to travel by him or herself?
Do you have someone who could return with the child?
Be specific.
VIII. Other Remarks
State here whether you are applying for return or access under the
Convention. You should include here any additional information that you
believe may be pertinent to the Hague application.
IX. Documents Attached
Check boxes of items enclosed. Original certified copies of documents are
NOT needed to apply under the Hague Convention.
Sign and date the application.
PART IX
ABDUCTION -- CHECKLIST FOR PARENTS
Your situation is difficult, but there are things that you can do. This
list assumes that you know, or strongly suspect, that your child has been
abducted abroad to a country that is not a party to the Hague Convention on
International Child Abduction. If the country is a party to the Hague
Convention, call the Office of Children's Issues (CI) to determine if your
situation meets the requirements of the Convention.
1. Emergency Action -- What to do Right Away
If you do not know where your child is, have you filed a missing person
report with your local police department?
Have you reported the abduction to the National Center for Missing and
Exploited Children?
Have you obtained a decree of sole custody or one that prohibits your child
from traveling without your permission? In most states, you can obtain
such a decree even after a child is abducted. A custody decree in your
favor is necessary for any legal action (except in Hague cases).
Have you requested a U.S. passport search andhas your child's name been
entered in the U.S. passport name check system?
If your child is a dual national, have the embassy and consulates of the
foreign country been informed of your custody decree and asked not to issue
a foreign passport to your child?
If your child is only a U.S. citizen but the other parent has close ties to
a particular country, have the embassy and consulates of that country been
informed of your custody decree and asked not to issue a visa to your
child?
Have you asked the Department of State's Office of Children's Issues to
initiate a welfare and whereabouts search for your child overseas?
2. The Search
Have you obtained certified copies of your custody decree from the court
that issued it? You may need to furnish proof of your custody rights at
various stages in your search and recovery effort.
Have you obtained a copy of the National Center for Missing and Exploited
Children's publication, Family Abduction: How to Prevent an Abduction and
What to Do If Your Child Is Abducted?
Have you tried to establish contact with relatives or friends of the
abducting parent?
Have local law enforcement authorities asked the Federal Parent Locator
Service to search for the abducting parent?
Have you contacted the principal of your child's school and asked to be
informed of requests for transfer of your child's school records?
Have you prepared a poster of your child?
Have you asked local law enforcement authorities to ask the U.S. Postal
Inspection Service to put a 'mail cover' on addresses in the U.S. to which
the abductor might write?
Have you asked local law enforcement authorities to help you obtain
information from telephone and credit card companies on the whereabouts of
the abductor?
3. After Your Child Has Been Located Abroad
Have you retained the services of a foreign attorney?
Have you sent certified copies of the custody decree, court orders, state
and federal warrants, as well as copies of state custody and parental child
abduction laws and the Federal Parental Kidnapping Prevention Act to the
foreign attorney?
Have you read Part VI of this booklet, "Other Solutions"?
4. Legal Proceedings: Possible Criminal Remedies
Is parental child abduction a crime in the state where your child resides
or was abducted?
Has a state warrant been issued for the arrest of the abductor?
Has a Federal warrant been issued for the arrest of the abductor?
If a warrant has been issued, has the abductor's name been entered in the
wanted persons section of the National Crime Information Center (NCIC)
computer?
Is it possible or useful to take legal action against agents or accomplices
to the abduction?
If the abductor is a U.S. citizen, have you considered asking U.S. law
enforcement officials to have his or her U.S. passport revoked?
Would extradition of the abductor, if possible, be effective in your case?
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Department of State Publication 10210
Bureau of Consular Affairs
Revised January 1995
The information in this publication is in the public domain and may be
reproduced without permission. When this material is reproduced, the
Department of State would appreciate receiving a copy at: CA/P/PA - Room
6831, Department of State, Washington, DC 20520-4818.
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