See below for

How to Prevent Child Abductions from Argentina;

New Jersey girl may be sent to Argentina;

THE HAGUE CONVENTION AND ARGENTINA

 From information supplied by Graciela I. Rodriguez-Ferrand 

The Hague Convention on the Civil Aspects of International Child Abduction was ratified by Argentina  effective June 1, 1991. The Central Authority for the Convention in Argentina is the Dirección General de AsuntosJurídicos-Dirección de Asistencia Judicial Internacional of the Ministry of Foreign Affairs, International Commerce and Worship. 

A.  Return Requested from Abroad

 The Central Authority addresses only the administrative and informational functions. The judiciary always decides on the return of a child or the visitation schedule. Once an application for return has been received, the Central Authority verifies that the petition complies with all the requirements provided for under the Convention. Before seeking a child's return or voluntary visitation from the parent in whose residence the child is located, the Central Authority must obtain the prior approval of the requesting parent. If the child’s return or voluntary visitation schedule does not take place at this first stage, the petition will have to be submitted by a private attorney to the competent court. The Central Authority will provide the appropriate court with a general background of the Convention and will also offer its assistance to the court during the proceedings. The Central Authority's role is administrative and informative, whereas the judiciary decides on the feasibility of the application for return or access rights.  

However, the Central Authority does not provide legal assistance to private individuals during the proceedings before Argentine courts. A private lawyer will have to be hired to carry out the judicial aspect of the request. Those who cannot afford a private lawyer, and who qualify, may obtain the assistance of a public funded attorney. Similarly, once the judicial stage has been instituted, the Central Authority will be at the Court and the parties' disposal to provide any information necessary for the implementation or application of the Convention with regard for the best interest of the child. When the minor's domicile has not been located, the Argentine Central Authority will inform Interpol, the agency which will be in charge of locating the minor in question. 

B. Domestic Laws Regarding Child Abduction and Parental Visitation

Under the Criminal Code, the punishment for anyone who takes and hides a minor 10 years of age or younger from the control of his parents, guardian, or person in charge of him is imprisonment from 5 to 15 years. Scholarly opinion is not clear on whether a parent who takes a child from the other parent is guilty of this crime. However, a number of court decisions have suggested that any parent who takes and keeps a child out of the control of the parent who has been judicially assigned the custody of the child is guilty of this crime. 

Law 24270 created the crime of Impedimento de Contacto de Hijos Menores con sus Padres no Convivientes (preventing minors from having contact with the non-custodial parent). Therefore, the parent or a third person who illegally prevents or obstructs contact between a minor and his non-custodial parent will be punished with imprisonment from 1 month to 1 year. If the child is younger than 10 years of age or handicapped, the punishment is imprisonment from 6 months to 3 years. 

The same sanctions would apply to the parent or third person who, in order to prevent the parent not living with the child from contacting him, takes the child to another domicile without judicial authorization. If, with the same purpose, such a person takes the child out of the country, the punishment would increase up to double the minimum and half of the maximum. 

In such cases, the court must take all necessary measures to restore the parent's contact with the child within 10 days. The court must also establish a provisional visitation schedule to be applied for not more than 3 months, or if there is already a visitation schedule, the court must enforce it. Although articles 5 and 21 of the Convention guarantee some type of visitation schedule during the return proceeding, the courts have interpreted these provisions narrowly considering that the Convention does not expressly require member countries to establish or enforce a visitation schedule. 

The Argentine Civil Code22 establishes that in some cases, express consent of both parents will be required in order for the minor to carry out certain actions. This provision refers to parents legally married and living together with the child, as well as parents that are separated or divorced, especially when one of the parents has physical custody of the minor, and the other has only visitation rights. 

Authorization to leave the country is included among the actions for which express consent is required by both parents. This means that either the father or the mother may grant or deny this authorization, or grant it for a limited period of time, and therefore express his agreement or disagreement regarding a possible change of residence of the minor. 

When a parent wishes to relocate with the child in a foreign country, he will need to acquire the court's authorization when a legal custody arrangement has been settled. This is also the case when a parent has only physical custody of the minor, since according to article 264 of the Argentine Civil Code, consent of both parents is required in order to leave the country. 

  C. Court System and Structure – Courts Handling the Hague Convention 

When Argentina is the requested country and there is no voluntary return of the child, the competent court for return proceedings under the Convention will be either the civil ordinary courts in the Federal Capital and national territories or the provincial courts, which may be family courts in those provinces that have such, or the civil courts. The case may be appealed to the respective Court of Appeals and, if admissible, to the Supreme Court.  

  D. Law Enforcement System 

Both the Central Authority and the courts have requested assistance from the police and Interpol to locate children and secure the enforcement of authorities’ orders. In Argentina children are sought by Interpol, not only in the cases derived from International Conventions, but also in those originated in countries where no conventions exist. 

Both parents are required under the law to authorize, not only the minor’s travel abroad, but also the issuance of a passport to a minor. The withdrawal of such a passport, as well as the denial or restrictions on the issuance of visas, may only be ordered by a court. Therefore, in order for a minor, who is not traveling with both parents, to leave the country, he will have to present his valid passport, as well as the absent parent’s authorization to travel, before the border authorities. Administrative measures and court orders may become ineffective if border controls in the country are not duly carried out. This is the case for dry/land boundaries due to the length of the Argentine borders. However, border controls are highly effective with regard to air carriers and ferries. When a court orders a prohibition to leave the country, such an order is given to border authorities, including Federal Police, Immigration, Interpol-Argentina, and Aeronautic Police.

CHILD ABDUCTION PREVENTION - ARGENTINA

The following is an extract from Argentina's answers to a questionnaire submitted by the Hague Conference on Private International Law concerning the Hague Convention on the Civil Aspects of International Child Abduction:

1.     Please give details of any civil legislative provisions which exist in your State which may act as a deterrent to a potential abductor, or may have a preventive effect.

Article 264 quater of the Argentine Civil Code establishes that in some cases, express consent of both parents will be required in order for the minor to carry out certain actions.
This provision refers to parents legally married and living together with the child, as well as parents that have separated or are divorced, where in most cases one of the parents has physical custody of the minor, and the other has legal access with the minor.
Among the actions for which express consent is required of both parents, is included the authorization to leave the country (4∞). This means that either the father or the mother may grant or deny this authorization, or grant it for a limited period of time, and therefore express his or her agreement or disagreement regarding a possible change of residence of the minor.
In other words, from article 264 quater derives the need to comply with the consent of both parents in order for the child to be able to change his residence to a foreign country.
    
2.     Please give details of any criminal legislative provisions which exist in your State which may act as a deterrent to a potential abductor, or may have a preventive effect.

Act 24.270 of the Argentine Penal Code establishes that the parent or third person who, wrongfully, prevents or hinders the contact between children and their non custodial parent, shall be punished with one month to one year imprisonment.
Article 2∞ of the same act, indicates the same punishment for the parent or third person who in order to prevent contact between the child and its non custodial parent, removes it from its home without judicial authorization.
In case the child is taken abroad for the same purpose, without judicial authorization, the punishment is elevated.

Article 146 of the Argentine Penal Code makes punishable the behavior of a person who withdraws a minor under the age of 10 from the custody of his parents, tutor, or the person in charge of his care, as well as the conduct of anybody who retains or hides the minor.
On this matter, jurisprudence is divided between those judges who understand that this punishment applies to a parent, and those who limit its application to acts performed by a person other than the parents of the minor.

3.     Please give details of any court orders which can be obtained during, for example, divorce or custody proceedings which prohibit, restrict or criminalize removal or retention of a child.

A civil court, within a divorce or custody proceeding, may order the prohibition of the minor to leave the jurisdiction of the court or the country, but cannot criminalize the removal or retention of the child. Once the removal has occurred, a criminal judge may intervene.

Moreover, if any suspicion or risk arouses that a parent may abduct a child, the civil court may withhold the passport of the minor. If the passport is already being issued, the civil court may order the police authorities not to deliver the document to his parent.

4.     Please give details of any court orders which can be obtained in emergency situations. Can these orders be obtained out-of-hours and ex parte?

Prohibitions to leave the country may be granted ex parte, but can only be ordered during judicial hours.

The withdrawal of the child from his parent's custody can also be required of a civil judge as a precautionary measure, but the emergency and danger of the delay will have to be demonstrated if it is to be extended ex parte, and may be ordered only during judicial hours.

5.     Do you have any comments relating to relocation orders?

When a parent wishes to relocate with the child in a foreign country, he or she will need to acquire the court's authorization when a legal custody arrangement has been settled, and this is also the case when a parent has only physical custody of the minor, since according to art. 264 of the argentine code, consent of both parents is required in order to leave the country.
The inconvenient is that when a parent is denied the relocation order, there is a risk that he or she may abduct the child.

6.     Do you have any other comments relating to legislative provisions, or court orders, or administrative measures including any comments on the effectiveness of these provisions and orders, and how often they are used in practice?

Provisions and measures of the kind described, may become ineffective when border controls in the country are not duly carried out.

Notes on travel permits for children in Argentina

 by Jeremy D. Morley

In order to prevent international child abduction, the Argentine National Immigration Department [Direccion Nacional de Migraciones (DNM)] has adopted a new regulation (Regulation 31.100/05), which changes the requirements for the issuance of Travel Permits.

 The Regulation contains “Rules taken to avoid exploitation, abuse, kidnapping and traffic of minors, ensuring an Integral and Effective Protection of the Minors.” It requires that, unless both parents are accompanying a minor, the accompanying person must possess a Travel Permit for the child.

 Basically, the applicant for a travel permit must produce clear evidence, such as civil birth certificates or a court order, that either or both of the child's parents, or a legal guardian, have legal responsibility for the minor child.

 Adults who are not the parent or legal guardian of a minor child, and who are accompanying a child during a trip and/or after arrival to the destination country, must be included on the child's Travel Permit.  

 Parents, legal guardians and unrelated adults must supply their full legal names, Argentine National ID# if applicable), current residential address and passport information on the child's Travel Permit.

 All travel permits for any minor child under the age of 18 must state the child's final country of destination, and any countries where the child will transit during the flight.

 Permits must set forth the name and contact information of the person meeting the child at the destination port (if different from the accompanying adult's information and if the child is under 15).

 In addition, if a minor child under age 6 is traveling alone or with a single parent, or an adult other than both parents, the Travel Permit must be registered with the DNM's Migratory Control Office (Direccion de Control Migratorio) prior to departure from Argentina and upon re-entry into Argentina.

To apply for a Travel Permit for a minor child, the parent or guardian must complete and execute a Travel Permit application in the presence of an Argentinean notary public or judge, who will request the necessary documentation and information. A parent or guardian and child who is not physically present in Argentina and who needs a Travel Permit to return to Argentina, may contact the nearest Argentinean consulate so as to have the Travel Permit completed and executed there.

Since a Travel Permit is considered an official public document, a parent or guardian of a minor child should secure a Public Deed (Escritura Publica) issued by an Argentinean notary public which should be certified by the Argentinean Notary Public Association (Colegio de Escribanos) in order for the Travel Permit to be valid. If a judge in Argentina executes a Travel Permit, a formal proceeding is required, during which the parent or guardian should present a formal request (Pedido/Presentacion Judicial) so that the Judge can issue a formal Disposition (Resolucion Judicial) for the Travel Permit to be valid.

Regulation 33.341/05 was enacted on August 23, 2005. It provides that Travel Permits issued prior to August 1, 2005 will remain valid until March 31st, 2006, after which new Travel Permits must be secured in accordance with Regulation 31.100/05.
 

New Jersey girl may be sent to Argentina
Saturday, October 8, 2005

By AMY KLEIN
STAFF WRITER

A 5-year-old American girl who spent most of her life in Argentina is at the center of a custody battle that is forcing New Jersey federal judges to decide whether to protect the allegedly abused child in the United States or return her under international law to South America.

The 3rd Circuit Court of Appeals, which heard arguments in the case last week, plans to rule quickly on whether Arianna Adan, a kindergartner in Elizabeth, must return to Argentina, where, her mother claims, the girl was sexually abused by her father, Ariel Adan.

Elena Mazza, a U.S. citizen, says she fled from Adan because he beat and raped her and abused their daughter, Arianna. She has copies of restraining orders filed against Adan in California and New Jersey along with e-mails he sent with frightening pictures of their daughter attached.

"She's seen him commit acts of violence in Argentina," said Mazza's lawyer. "She gets a restraining order there, and he comes home and pulls her outside, beats the crap out of her. No one's helping her there. The police aren't helping her there. What should she do? What would you do?"

Adan says he hasn't seen Arianna in 17 months, since Mazza allegedly kidnapped her from Argentina, where she battled a drug problem. The case is pending in an Argentinian court.

"She is such a bad person, and I just want my daughter home with me," said Adan, who found Arianna through Interpol and the National Center for Missing and Exploited Children.

In the end, Arianna's fate will be determined by a court that has little practice dealing with domestic disputes. This summer, U.S. District Judge William H. Walls ordered Arianna to return to Argentina for the courts there to handle her father's kidnapping claim.

Because the case crosses international borders and involves one of the 61 countries that signed the 1980 Hague Convention agreement dealing with child abduction, the matter falls to the country's federal courts to resolve.

The agreement stipulates that a child will be returned to the country of residence - unless the child is in danger - where the local courts will settle the issue of custody.

Although Arianna was born in the United States, Mazza and Adan moved back to Argentina shortly after. Once there, Mazza says, she was abused and ultimately the couple split.

Lawyers on both sides say the federal system is ill-equipped to deal with the types of domestic cases that are often worked out in state courts, because there are no psychologists to give exams or child advocates to investigate.

Court halts girl's deportation Child won't be sent to Argentine father accused of abuse Wednesday, February 15, 2006 BY BOB BRAUN Star-Ledger Staff A federal appeals court yesterday threw out a deportation order aimed at sending a 5-year-old Elizabeth girl to Argentina for a custody hearing. The appeals panel returned the case to a trial court to determine whether the father has custody rights and if allegations of sexual abuse posed a "grave risk of harm" to the child, Arianna Adan.