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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 preparedÇkeep 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 Ç 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 SystemÇHow 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.