Since the 1960’s and 1970’s, an increasing number of marriages have taken place between United States citizens and foreign citizens. Many reasons for this exist, including the ease of international travel, increasing numbers of troops being stationed abroad, and the ability of foreigners to obtain student visas here in the United States.
While many find great happiness in cross-cultural marriages, fathers need to know the risks when their children are taken out of the country – especially in the midst of a custody dispute. Cases of international child abduction can take place when an American child travels to a foreign country – with the approval of both parents – but is prevented from returning by the foreign parent. In many cases, the foreign parent is “court shopping” in that they seek to gain a custody order in a foreign court where the abducting parent has citizenship as well as cultural or religious traditions in their favor. To address concerns regarding child adduction, many countries have adopted the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
As of July 2001, the United States State Department reports that 50 countries are members of the Hague Convention. In the United States, the Hague Convention has been adopted by the terms of the International Child Abduction Remedies Act (“ICARA”) as codified in 42 U.S.C. 11601 through 11610. The Hague Convention’s purpose is to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” The Hague Convention applies only between countries that have adopted the Convention as a Contracting State. Each Contracting State shall set up a Central Authority.
A parent whose child has been taken out of the country can file an application with the Central Authority in their home country – or where the child is located. Central Authorities of various countries are to co-operate with one another for the prompt return of children to their home country. Applications to the Central Authority must be submitted as soon after an abduction as possible. The Hague Convention provides a time-limitation of one (1) year for the filing of an application. A custody decree does not need to be in effect to trigger the return provisions of the Hague Convention. Instead, the elements of a cause of action for the return of a child are as follows:
- child was habitually resident of the country from which the child was abducted;
- petitioning parent had either sole or joint rights of custody of the child either through a custody order or by operation of law; and
- at time of wrongful removal, petitioner parent was exercising those rights.
The Hague Convention is only a return mechanism that does not resolve the custody itself. Put another way, the Hague Convention merely provides for the quick return of a child to their habitual country where custody and other issues may be resolved. This prevents abducting parents from court shopping for a foreign court more favorable to their case. The operation of the Hague Convention is seen in the cases of Rydder v. Rydder and Friedrich v. Friedrich. In Rydder, the Eighth Circuit Court of Appeals held that the mother, an American citizen, had to return her two children to Poland. This is the country where she had been residing with her husband before coming to the United States. Similarly, in Friedrich, the Sixth Circuit Court of Appeals ordered the return of a six year old to Germany when the mother, an American citizen, had taken her child to the United States from Germany – where the mother had been residing with the child and her German husband. While outcomes are more predictable where both countries have adopted and enforce the Hague Convention, many countries have not ratified it – or have poor records in enforcing it. As a whole, only one-sixth of the world’s countries – only eight of which are non-European – have specifically adopted the Hague Convention.
If you include countries that are bound to it by accession, only forty percent of the world’s countries are bound by it. Besides Turkey and Bosnia, for example, no Muslim countries have adopted the Hague Convention. Likewise, Asian countries such as China, Japan, Korea and Taiwan are all non-Hague countries. When a non-Hague country is the destination for children, a father must take special care when his children are taken to these countries — and may seek injunctive relief to prevent it on the front-end. This is especially the case during times of marital strife, in the midst of a custody dispute, or any time after a highly contested divorced has concluded. The operation in non-Hague countries is illustrated in Ahmad v. Naviwala and United States v. Amer. In Ahmad, the mother permitted the father to take her four children to Saudi Arabia after a divorce.
Although the children were American citizens, the father refused to return the children, refused the mother all visitation, and obtained a favorable custody order in Saudi Arabia. It was not until two years later, when the mother learned that the father was planning a trip to Texas with the children, that authorities seized the children in that state. Otherwise, the children may never have seen their mother again. In Amer, the father brought the children to Egypt and refused to return them. Despite the mother’s efforts to secure their return, the father was granted a favorable custody order from the Egyptian Court — that granted him sole custody. It was not until the father returned to the United States, without the children, that he was arrested for international parental kidnapping. The children were later returned as part of a plea deal for a conviction on lesser criminal charges. Otherwise, the mother may have never seen her children again.
Fathers who have: (a) had children abducted, or (b) want to prevent it before it happens, should heed the following advice: First, at the onset of any abduction, fathers should immediately retain competent legal counsel who can give them advice unique to the circumstances of their individual case. Ultimately, a father will not only need legal counsel at home, but in most cases, will need to retain counsel abroad in the foreign country where the children are located. Second, at the onset of any abduction, fathers should ensure immediately that an application is filed with the Central Authority – whether in United States or the country where the child is located. Again, if you wait more than one (1) year, you may be time-barred from ever obtaining the safe return of your children.
Information on how to contact the Central Authority of the United States can be found on the U.S. Department of State’s web page at:
http://travel.state.gov/family/abduction/abduction_580.html.
Third, to help prevent child abduction on the front-end, fathers who are divorcing spouses from foreign countries must ensure that they have well-written custody decrees. Components of a well-written custody could include, if allowed by the court, court-ordered supervised visitation – where mother is a risk to flee with the children. It may also include a specific statement prohibiting any travel outside the country without your permission or that of the court, if the court allows it. Fourth, to help prevent child abduction on the front-end, the U.S. State Department also provides parents the following advice to parents:
- Keep a list of addresses and telephone numbers of the other parent’s relatives, friends, and businesses associates here and abroad;
- Keep a record of important information about the other parent, including: physical description, passport, social security, bank account, and driver’s license numbers, and vehicle description and plate number;
- Keep a written description of child, including hair and eye color, height, weight, fingerprints, and any special physical characteristics;
- Take full-face color photographs and/or videos of your child every six months – a recent photo of the other parent may also be useful; and
- Teach your children to use the telephone and memorize your home phone number.
In sum, fathers always need to exercise great caution when their children are traveling to any foreign country. While great happiness can be found in cross-cultural marriages, a red flag should raise when travel is proposed to a foreign country — especially during times of marital strife, in the midst of a custody dispute, or any time after a highly contested divorced has concluded. A father should be extra cautious when travel is proposed to a non-Hague country. While taking appropriate preventative action, as outlined above, can help prevent child abduction in the first place, no preventative action is ever a guarantee. Therefore, a father must act quickly in response to any abduction.
