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The United States ratified
the Hague Convention on the Civil Aspects of International Child Abduction, Oct.
25, 1980, T.I.A.S. No. 11,670 ("Hague Convention") on July 1, 1988.
Congress implemented the
Hague Convention by passing the International Child Abduction Remedies Act ("ICARA").
That Act sets forth the procedures applicable to handling actions brought in the
United States pursuant to the Hague Convention.
INTERNATIONAL CHILD ABDUCTION REMEDIES (ICARA)
Sec. 11601. Findings and declarations
(a) Findings
The Congress makes the following findings:
(1) The international abduction or wrongful
retention of children is harmful to their well-being.
(2) Persons should not be permitted to obtain
custody of children by virtue of their wrongful removal or retention.
(3) International abductions and retentions of
children are increasing, and only concerted cooperation pursuant to an
international agreement can effectively combat this problem.
(4) The Convention on the Civil Aspects of
International Child Abduction, done at The Hague on October 25, 1980,
establishes legal rights and procedures for the prompt return of children who
have been wrongfully removed or retained, as well as for securing the exercise
of visitation rights. Children who are wrongfully removed or retained within the
meaning of the Convention are to be promptly returned unless one of the narrow
exceptions set forth in the Convention applies. The Convention provides a sound
treaty framework to help resolve the problem of international abduction and
retention of children and will deter such wrongful removals and retentions.
(b) Declarations
The Congress makes the following declarations:
(1) It is the purpose of this chapter to
establish procedures for the implementation of the Convention in the United
States.
(2) The provisions of this chapter are in
addition to and not in lieu of the provisions of the Convention.
(3) In enacting this chapter the Congress
recognizes -
(A) the international character of the
Convention; and
(B) the need for uniform international
interpretation of the Convention.
(4) The Convention and this chapter empower
courts in the United States to determine only rights under the Convention and
not the merits of any underlying child custody claims.
REFERENCES IN TEXT
This chapter, referred to in subsec. (b), was
in the original ''this Act'' meaning Pub. L. 100-300, Apr. 29, 1988, 102 Stat.
437, which is classified principally to this chapter. For complete
classification of this Act to the Code, see Short Title note below and Tables.
SHORT TITLE
Section 1 of Pub. L. 100-300 provided that:
''This Act (enacting this chapter and amending section 663 of this title) may be
cited as the 'International Child Abduction Remedies Act'.''
Sec. 11602. Definitions
For the purposes of this chapter -
(1) the term ''applicant'' means any person
who, pursuant to the Convention, files an application with the United States
Central Authority or a Central Authority of any other party to the Convention
for the return of a child alleged to have been wrongfully removed or retained or
for arrangements for organizing or securing the effective exercise of rights of
access pursuant to the Convention;
(2) the term ''Convention'' means the
Convention on the Civil Aspects of International Child Abduction, done at The
Hague on October 25, 1980;
(3) the term ''Parent Locator Service'' means
the service established by the Secretary of Health and Human Services under
section 653 of this title;
(4) the term ''petitioner'' means any person
who, in accordance with this chapter, files a petition in court seeking relief
under the Convention;
(5) the term ''person'' includes any
individual, institution, or other legal entity or body;
(6) the term ''respondent'' means any person
against whose interests a petition is filed in court, in accordance with this
chapter, which seeks relief under the Convention;
(7) the term ''rights of access'' means
visitation rights;
(8) the term ''State'' means any of the
several States, the District of Columbia, and any commonwealth, territory, or
possession of the United States; and
(9) the term ''United States Central
Authority'' means the agency of the Federal Government designated by the
President under section 11606(a) of this title.
Sec. 11603. Judicial remedies
(a) Jurisdiction of courts
The courts of the States and the United States
district courts shall have concurrent original jurisdiction of actions arising
under the Convention.
(b) Petitions
Any person seeking to initiate judicial
proceedings under the Convention for the return of a child or for arrangements
for organizing or securing the effective exercise of rights of access to a child
may do so by commencing a civil action by filing a petition for the relief
sought in any court which has jurisdiction of such action and which is
authorized to exercise its jurisdiction in the place where the child is located
at the time the petition is filed.
(c) Notice
Notice of an action brought under subsection
(b) of this section shall be given in accordance with the applicable law
governing notice in interstate child custody proceedings.
(d) Determination of case
The court in which an action is brought under
subsection (b) of this section shall decide the case in accordance with the
Convention.
(e) Burdens of proof
(1) A petitioner in an action brought under
subsection (b) of this section shall establish by a preponderance of the
evidence -
(A) in the case of an action for the return of
a child, that the child has been wrongfully removed or retained within the
meaning of the Convention; and
(B) in the case of an action for arrangements
for organizing or securing the effective exercise of rights of access, that the
petitioner has such rights.
(2) In the case of an action for the return of
a child, a respondent who opposes the return of the child has the burden of
establishing -
(A) by clear and convincing evidence that one
of the exceptions set forth in article 13b or 20 of the Convention applies; and
(B) by a preponderance of the evidence that
any other exception set forth in article 12 or 13 of the Convention applies.
(f) Application of Convention
For purposes of any action brought under this
chapter -
(1) the term ''authorities'', as used in
article 15 of the Convention to refer to the authorities of the state of the
habitual residence of a child, includes courts and appropriate government
agencies;
(2) the terms ''wrongful removal or
retention'' and ''wrongfully removed or retained'', as used in the Convention,
include a removal or retention of a child before the entry of a custody order
regarding that child; and
(3) the term ''commencement of proceedings'',
as used in article 12 of the Convention, means, with respect to the return of a
child located in the United States, the filing of a petition in accordance with
subsection (b) of this section.
(g) Full faith and credit
Full faith and credit shall be accorded by the
courts of the States and the courts of the United States to the judgment of any
other such court ordering or denying the return of a child, pursuant to the
Convention, in an action brought under this chapter.
(h) Remedies under Convention not exclusive
The remedies established by the Convention and
this chapter shall be in addition to remedies available under other laws or
international agreements.
Sec. 11604. Provisional remedies
(a) Authority of courts
In furtherance of the objectives of article
7(b) and other provisions of the Convention, and subject to the provisions of
subsection (b) of this section, any court exercising jurisdiction of an action
brought under section 11603(b) of this title may take or cause to be taken
measures under Federal or State law, as appropriate, to protect the well-being
of the child involved or to prevent the child's further removal or concealment
before the final disposition of the petition.
(b) Limitation on authority
No court exercising jurisdiction of an action
brought under section 11603(b) of this title may, under subsection (a) of this
section, order a child removed from a person having physical control of the
child unless the applicable requirements of State law are satisfied.
Sec. 11605. Admissibility of documents
With respect to any application to the United
States Central Authority, or any petition to a court under section 11603 of this
title, which seeks relief under the Convention, or any other documents or
information included with such application or petition or provided after such
submission which relates to the application or petition, as the case may be, no
authentication of such application, petition, document, or information shall be
required in order for the application, petition, document, or information to be
admissible in court.
Sec. 11606. United States Central Authority
(a) Designation
The President shall designate a Federal agency
to serve as the Central Authority for the United States under the Convention.
(b) Functions
The functions of the United States Central
Authority are those ascribed to the Central Authority by the Convention and this
chapter.
(c) Regulatory authority
The United States Central Authority is
authorized to issue such regulations as may be necessary to carry out its
functions under the Convention and this chapter.
(d) Obtaining information from Parent Locator
Service
The United States Central Authority may, to
the extent authorized by the Social Security Act (42 U.S.C. 301 et seq.), obtain
information from the Parent Locator Service.
Sec. 11607. Costs and fees
(a) Administrative costs
No department, agency, or instrumentality of
the Federal Government or of any State or local government may impose on an
applicant any fee in relation to the administrative processing of applications
submitted under the Convention.
(b) Costs incurred in civil actions
(1) Petitioners may be required to bear the
costs of legal counsel or advisors, court costs incurred in connection with
their petitions, and travel costs for the return of the child involved and any
accompanying persons, except as provided in paragraphs (2) and (3).
(2) Subject to paragraph (3), legal fees or
court costs incurred in connection with an action brought under section 11603 of
this title shall be borne by the petitioner unless they are covered by payments
from Federal, State, or local legal assistance or other programs.
(3) Any court ordering the return of a child
pursuant to an action brought under section 11603 of this title shall order the
respondent to pay necessary expenses incurred by or on behalf of the petitioner,
including court costs, legal fees, foster home or other care during the course
of proceedings in the action, and transportation costs related to the return of
the child, unless the respondent establishes that such order would be clearly
inappropriate.
Sec. 11608. Collection, maintenance, and
dissemination of information
(a) In general
In performing its functions under the
Convention, the United States Central Authority may, under such conditions as
the Central Authority prescribes by regulation, but subject to subsection (c) of
this section, receive from or transmit to any department, agency, or
instrumentality of the Federal Government or of any State or foreign government,
and receive from or transmit to any applicant, petitioner, or respondent,
information necessary to locate a child or for the purpose of otherwise
implementing the Convention with respect to a child, except that the United
States
Central Authority -
(1) may receive such information from a
Federal or State department, agency, or instrumentality only pursuant to
applicable Federal and State statutes; and
(2) may transmit any information received
under this subsection notwithstanding any provision of law other than this
chapter.
(b) Requests for information
Requests for information under this section
shall be submitted in such manner and form as the United States Central
Authority may prescribe by regulation and shall be accompanied or supported by
such documents as the United States Central Authority may require.
(c) Responsibility of government entities
Whenever any department, agency, or
instrumentality of the United States or of any State receives a request from the
United States Central Authority for information authorized to be provided to
such Central Authority under subsection (a) of this section, the head of such
department, agency, or instrumentality shall promptly cause a search to be made
of the files and records maintained by such department, agency, or
instrumentality in order to determine whether the information requested is
contained in any such files or records. If such search discloses the information
requested, the head of such department, agency, or instrumentality shall
immediately transmit such information to the United States Central
Authority, except that any such information
the disclosure of which -
(1) would adversely affect the national
security interests of the United States or the law enforcement interests of the
United States or of any State; or
(2) would be prohibited by section 9 of title
13; shall not be transmitted to the Central Authority. The head of such
department, agency, or instrumentality shall, immediately upon completion of the
requested search, notify the Central Authority of the results of the search, and
whether an exception set forth in paragraph (1) or (2) applies. In the event
that the United States
Central Authority receives information and the
appropriate Federal or State department, agency, or instrumentality thereafter
notifies the Central Authority that an exception set forth in paragraph (1) or
(2) applies to that information, the Central Authority may not disclose that
information under subsection (a) of this section.
(d) Information available from Parent Locator
Service
To the extent that information which the
United States Central Authority is authorized to obtain under the provisions of
subsection (c) of this section can be obtained through the Parent Locator
Service, the United States Central Authority shall first seek to obtain such
information from the Parent Locator Service, before requesting such information
directly under the provisions of subsection (c) of this section.
(e) Recordkeeping
The United States Central Authority shall
maintain appropriate records concerning its activities and the disposition of
cases brought to its attention.
Sec. 11609. Interagency coordinating group
The Secretary of State, the Secretary of
Health and Human Services, and the Attorney General shall designate Federal
employees and may, from time to time, designate private citizens to serve on an
interagency coordinating group to monitor the operation of the Convention and to
provide advice on its implementation to the United States Central Authority and
other Federal agencies. This group shall meet from time to time at the request
of the United States Central Authority. The agency in which the United States
Central Authority is located is authorized to reimburse such private citizens
for travel and other expenses incurred in participating at meetings of the
interagency coordinating group at rates not to exceed those authorized under
subchapter I of chapter 57 of title 5 for employees of agencies.
Sec. 11610. Authorization of appropriations
There are authorized to be appropriated for
each fiscal year such sums as may be necessary to carry out the purposes of the
Convention and this chapter. |
