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U.S. DEPARTMENT OF STATE, BUREAU OF CONSULAR AFFAIRS
INTERNATIONAL CHILD ABDUCTION
JANUARY 1995






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 [phone]).  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: [phone]
Fax:  [phone]

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: [phone]
Fax: [phone]

For General Technical Assistance:

National Center for Missing and Exploited Children (NCMEC)
2101 Wilson Boulevard,
Suite 500
Arlington, VA  22201
Phone:  [phone]

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:  [phone]

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:  [phone]

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.