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VENEZUELA Child
Abduction
The Hague
Convention on
the Civil Aspects of International Child Abduction was ratified by
Venezuela on July 19, 1996 and came into force on January
1, 1997. At the time of ratification, Venezuela made a declaration
under article 24 of the Convention requiring that
all
communications addressed to the Central Authority be translated into
Spanish. Venezuela also made a declaration concerning article 26,
stating that it is not obliged to provide for legal counsel in
Convention proceedings.
Domestic
Laws and Regulations Implementing the Hague Convention
The Central
Authority for the Convention in Venezuela is the Dirección General
de Relaciones Consulares of the Ministry of Foreign Affairs.
A statute on the Ley Organica de Proteccion del nino y del
adolescente (LOPNA) provides that the state must protect children
and adolescents against their illegal abduction within the country
or abroad. However, there is no specific national implementing
legislation of the Convention, and therefore, the LOPNA procedural
rules apply to Convention related return or visitation petitions.
The Tribunales de Protecciondel Nino y del Adolescente (TPNA)
(Minors Court) with jurisdiction where the child is located will
have competence to decide cases under the Convention.
A.
Return Requested from Abroad
Under the
provisions of the LOPNA, it has been determined that the
competent judge to provide for the return of a child, or to enforce
visitation rights under the Convention, is the TPNA where the child
is located or being retained, consisting of the Sala de Juicio, that
will decide in first instance, and then
orte Superior
that
will decide at the appellate level. The Sala Civil of the
Supreme Court hears the cases as the court of last resort.
Under the
provisions of the Convention, the Central Authority is required to
take all necessary measures to locate the child. The National Police
will provide assistance thereto. If an agreement between the parties
is not reached at the administrative level with the intervention of
the Central Authority, a Fiscal (public defender), will be
appointed to intervene in the judicial proceedings. However, since
Venezuela has made a declaration stating that it is not obliged to
provide free legal counsel in Convention proceedings, if applicant
decides to name a private attorney, the Central Authority is not
required to pay for such expenses.
B. Return
requested from Venezuela
When the
Venezuelan Central Authority is the requesting party, under the
return or visitation petition, the documentation is translated as
appropriate and sent to the competent Central Authority abroad. The
Venezuelan Central Authority must provide guidance and orientation
to the petitioners. Once all documents have been submitted, the
Central Authority will follow up on the petition abroad and try to
reach a friendly solution to the case. If this is not possible,
judicial proceedings will be instituted to return the child to
Venezuela or to reinstate the effective visitation schedule.
Venezuela will not provide legal assistance for judicial proceedings
abroad.
II. Domestic
Laws Regarding Child Abduction and Parental Visitation
The LOPNA
provides that in cases of divorce, separation, nullity of marriage,
or if the parents of a child are residing in different places, both
parents will decide who will have the custody of a child 7 years of
age or older. Children younger than 7 years of age must live with
the mother, unless she does not have parental authority or it is in
the best interest of the child, for reasons of health or safety, to
be separated from the mother either temporarily or permanently. In
case of disagreement, the judge will decide on the custody of the
children.
Parents assigned
parental authority have the custody of their children; they are
civilly, administratively and criminally liable for their compliance
with its enforcement. In case of a disagreement on any aspect of the
custody arrangement, either parent may petition a change or
clarification of the custody terms before the judge of the Sala
de Juicio. The court will decide after hearing from the parties
and the child and after trying to solve the case through
conciliation. This decision may not be appealed.
With regard to
visitation rights, the LOPNA provides that the parent who abducts or
retains a child whose custody has been assigned to the other parent
or a third person, is judicially obligated to return the child and
will be liable for the damages caused by his wrongdoing. The
abductor must reimburse all the expenses incurred in securing the
return of the child.
In these cases,
the LOPNA provides that whoever abducts or illegally retains a child
from his legal guardian, will be sanctioned with imprisonment of 6
months to 2 years. In addition, the abductor will be liable for all
travel related expenses to return the child to his residence.
III. Court
System and Structure – Courts Handling the Hague Convention
When Venezuela
is the requested country and there is no voluntary return of the
child, the competent court for return proceedings under the
Convention will be the lower courts of the place where the child is
located or where he is being retained. The case may be appealed only
once to the respective Court of Appeals and must be decided within a
maximum of 20 days; the appeal does not suspend its enforcement.
According to the
Venezuelan Central Authority, since the Convention came into force
recently, there is not much experience under the Convention, and its
application has not been as widespread as expected. More information
about it needs to be provided in order to increase its application,
it is stated.
A case involving
children whose residence was in the United States is illustrative.
After the divorce of their parents, the mother traveled with the
children on vacation to Venezuela, but they did not return. The
father claimed that although the taking of the children was legal,
their retention in Venezuela was not, because such an action
violated his rights of custody of the children under U.S. law, where
the children were habitually resident. Although the mother
petitioned a Venezuelan court for sole custody of the children,
the court decided under the Convention return petition and ordered
the immediate return of the children to their country of residence.
It concluded that, unless the Convention is considered inapplicable,
Venezuelan courts are not competent to decide on the actual custody
of the children, because their legitimate place of residence was the
United States. However, the return could not be executed, and the
minors remained in Venezuela.
Graciela I. Rodriguez-Ferrand,
Senior Legal Specialist, March 2004, Law Library of Congress |
The U.S. Department of State
has now declared that Venezuela is "noncompliant" with its
obligations under the Hague International Child Abduction
Convention U.S. Department of
State
REPORT ON COMPLIANCE WITH THE
HAGUE CONVENTION ON THE CIVIL ASPECTS OFINTERNATIONAL CHILD
ABDUCTION
APRIL 2006
VENEZUELA
"Venezuela was not mentioned in
the 2005 Convention compliance report because there were no active
cases during the time frame covered by the report. For the period
covered by the 2006 report, however, serious compliance problems
became evident. The Venezuelan Central Authority (VCA) typically
failed to be responsive to inquiries by the USCA, U.S. Embassy
Caracas, or left-behind parents. The USCA is not aware of any
judicial training program for judges or prosecutors. Applications
are not handled by the VCA in an expeditious manner nor are any
measures being taken to improve processing of applications. Long
delays in case proceedings are indicative of larger systemic
problems in the Venezuelan court system. For neither of the two
outstanding cases during the period of review was a court hearing
scheduled. One case, now more than a year old, has never been heard
in court, and in another case, a voluntary return was accomplished
after ten months (no court hearing was held). With regard to
enforcement of return orders, under Venezuelan law, parents can be
subject to imprisonment and fines for not complying with court
orders. With no cases heard during the rating period, however, there
were no return orders issued or enforced. U.S. Embassy Caracas met
with officials from the Ministry of Foreign Relations twice during
the reporting period to discuss problems with case proceedings, once
in May 2005 and again in September 2005, but no substantive
information was received as a result of these efforts. As a result
the USCA has determined that, during the most recent rating period,
Venezuela was “noncompliant” with regard to its duties under the
Convention."
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