Just out of reach

by Michelle Golay

Tom waited for over two hours to pick up his daughter Libby from a scheduled visit with her mother. He finally made a phone call, hoping to discover what was causing the delay, and found that Rachel, his ex-wife, unexpectedly departed with Libby on a flight to Germany earlier in the day.

When Tom and Rachel were finalizing their divorce one year prior, the judge had awarded Tom physical custody of Libby. Rachel was granted visitation rights, limited to one weekend a month. Dissatisfied with the arrangement, Rachel  threatened to move back to Germany where her family was and take Libby with her. Because Tom assumed Rachel was throwing out empty threats that she would never act upon, he hadn’t taken any precautions to prevent this from happening.

The family had previously traveled to Germany in the past to visit Rachel’s relatives, so Libby already had a German visa valid multiple visits. At the time, Tom thought the permission for multiple visits would be helpful, reducing hassle for future travels abroad. Instead, it now had served to make it easier for Rachel to escape quickly.

Many parents find themselves in situations similar to Tom’s. The details and family structures vary, but the bottom line is that their children have been abducted to a foreign country or are wrongfully retained in a foreign country. However, there is help for parents who find themselves in this dilemma.

In 1980, a group of countries joined together in The Hague, Netherlands, to attempt to standardize a procedure for handling international parental child abduction matters. This became known as the Hague Convention on the Civil Aspects of International Child Abduction. The purpose of the Hague Convention was to establish a treaty designed to
secure the expeditious return of a child who a victim of international abduction or wrongful retention. Currently, 33 countries have consented to the Hague Convention, including the United States which ratified in 1988. Each country has a designated Central Authority which handles international child abduction cases for that country. The U.S.  Department of State, Bureau of Consular Affairs, Office of Overseas Citizens Services, in Washington D.C. is the Central Authority for the United States.

If it is determined, or at least believed, that a child has been abducted or is being held in another country, the   searching parent should file a missing persons report with their local police department, register with a missing children’s organization such as OPERATION LOOKOUT® , have the child’s name entered in the Department of State?s
passport name check system, and contact the U.S. Central Authority. An officer in the department will assess the circumstances and determine whether to classify the case as a Hague or Non-Hague case. Non-Hague cases include those when one or both countries involved are not parties to the Hague Convention. There are legal avenues that can be taken to recover a child which has been abducted to a country that is non-signatory.

If the case meets the filing criterion under the Hague Convention, the searching parent then submits an application along with photos of the child and abductor, and supporting documents as instructed by the department. The application requests information about the child, abductor, and circumstances regarding the abduction or wrongful
retention. Being as thorough as possible will help the process move more efficiently, but cannot guarantee the amount of time that will be required to recover the child. Once the department receives the application and an officer verifies that everything is in order, the officer will forward the information to the Central Authority of the country where the child has been abducted to or is being wrongfully retained.

Compliance with the procedures of the foreign Central Authority is essential in order to facilitate the recovery of the child. Central Authorities may share all relevant background and current information regarding the child that may be beneficial to bringing the child back to his/her habitual place of residence. In Hague cases, the U.S. Central Authority can provide information about the procedures of the foreign Central Authority. In addition, officers can help the   searching parent obtain information regarding the laws of the state in the U.S. where the child was residing prior to the abduction, which will be passed on to the foreign Central Authority.

There are some exceptions to the automatic acceptance and processing of international parental abduction cases for the return of a child under the Hague Convention. Some are based on the age and welfare of the child, and some on the presumed ability of the child to determine his or her preferred living arrangement. A consular officer at the State Department will provide guidance for a searching parent should these exceptions become factors in the case.

If an abduction is identified as Non-Hague, the State Department–with location information provided by the searching
parent–will attempt to locate the child through the assistance of a U.S. Embassy or Consulate overseas. Initially, the consular officer abroad will encourage the abducting parent to return the child voluntarily or, if necessary, work to facilitate another favorable resolution. Consular officers must at all times abide by laws of the foreign country where the child is located, and cannot aid parents who may be violating laws of that country. In addition, officers may not “take possession” of the child. Positive action that is considered to be in the best interest of the child is the main priority of the State Department.

Divorce or separation is not always a factor in international abduction or retention.

If there is evidence of abuse or neglect of the child, the U.S. Embassy or Consulate will request that authorities in the foreign country become involved in order to protect the child. Sometimes, a child has been located but cannot, for whatever reason, be recovered. In such cases, a consular officer may, if requested by the searching parent, conduct a check on the child to determine his/her welfare, and submit a report on the findings. The department cannot serve as an agent or attorney on behalf of the searching parent, but will provide information regarding procedures of the foreign country involved. In addition, the department maintains lists of attorneys in foreign countries, should a searching parent choose to pursue custody of his/ her child through the foreign judicial system.

* Once an abduction occurs it is imperative that the searching parent take immediate action. The Hague Convention is time sensitive, stating that the matter should be addressed by the court in the receiving country within one year of the abduction in order to be “automatic.” Resettlement is a possible defense to return a child if more than one year has passed between the abduction and the court proceedings in the foreign country.

* There are three initial requirements that must be met before application for assistance under the Hague Convention can proceed: 1) the searching parent must have a “right of custody.” (This does not mean a custody order, but it is usually established in the individual state codes.); 2) the searching parent must be exercising the right of custody at the time of the abduction; and 3) the searching parent must have objected to the removal of the child.

* International child abduction can sometimes result from an international marriage. However, they can also affect a marriage between individuals who are only U.S. citizens. It is important to remember that laws and traditions vary from country to country, especially those pertaining to marriage and children.

* A parent should gain as much information as possible regarding laws and traditions of any foreign country prior to travelling to that country with his/her child or before allowing a child to visit that country, specifically with a current or estranged spouse.

* Divorce or separation is not always a factor in international abductions or retention’s. For instance, a parent visiting his or her native country may renew his or her ties to that country and remain there with the child, against the will of the other parent.* Under the law of many U.S. states and foreign countries, both parents are considered to have equal custody of the child if they have no custody decree. In some cases, a child abducted by a parent may not be considered legally abducted.

* Although a custody decree is not mandatory in order to receive assistance under the Hague Convention, it is an important tool to prevent abduction of a child by a parent to a foreign country.

* If a parent suspects that his/her current or estranged spouse may abduct the child to a foreign country, a written request along with any custody orders, court orders, or warrants may be sent to the Passport Service?s Office of Citizenship Appeals and Legal Assistance, at the Department of State. Their telephone number is (202) 326-6168. In
addition, it may be helpful to make a similar request to the foreign embassy or consulate of the country where the abducting parent might go, asking that no passport or visa be issued to the child. There are not international laws that mandate compliance with such a request, but some countries may respond voluntarily.

* A searching parent should continue his/her own search in addition to assistance they receive from police, missing children?s organizations or the Department of State. In so doing, it is important to maintain contact with each regarding the case, and act within all legal confines of both the U.S. and the foreign country where the child is currently

* A searching parent may have more success in recovering his/her abducted child by establishing and maintaining cordial relations with the other parent?s family and friends. It may be beneficial to ensure they understand that the searching parent?s concern is for the child, not for continuing a dispute with the abducting parent.

* If your child has been abducted or is being illegally held in another country, contact your local law enforcement, OPERATION LOOKOUT ® at 1-800-782-SEEK and the U.S. Department of State at 202-736-7000.