Parental Abductions
August
2005
By Jeremy D. Morley
When the Hague
Convention Won't Help
The Hague Convention on the
Civil Aspects of International Child Abduction (the Hague Convention) provides
that a child who is habitually resident in one party country, and has been
removed to or retained in another party country in violation of the left-behind
parent's custodial rights, should be promptly returned to the country of
habitual residence. However, many countries are not parties to the Convention,
and even some that are parties enforce the laws only sporadically or in
accordance with their own societal customs. Thus, the attorney must take special
care when faced with the possibility that his client's foreign national spouse
might take the children to such a country.
Preventing
Abductions to Non-Hague Countries
The mother in
Ahmad v Naviwala, 306 A.D.2d 588,
762 N.Y.S.2d 125 (3rd Dept. 2003), lv dismissed 100 N.Y.2d 615 (2003) learned
these lessons the hard way. The Family Court awarded her sole custody of the
children but unfortunately (although represented by counsel!) she permitted the
father to take them to Saudi Arabia for a 3-month visitation. Not surprisingly
(to a jaundiced international family lawyer), the father refused to return the
children from Saudi Arabia, refused to allow the mother to see the children and
obtained an ex parte custody order in his favor from a Saudi court. Had he kept
the children in Saudi Arabia, they would doubtless have never been reunited with
their mother. Fortunately, he took the children on a trip to Texas, where they
were seized pursuant to a Broome County Family Court order, and returned to New
York.
The Family Court then
granted custody to the father (!), with visitation rights to the mother.
Recognizing that Saudi Arabia was not a party to the Hague Convention, and that
the mother could not enforce her visitation rights there, the court imposed
various conditions upon the father intended to ensure that he would allow the
mother to visit the children in Saudi Arabia. For violating the prior custody
order, the father was sentenced to a suspended term of incarceration conditioned
upon his future compliance.
On appeal, the Third
Department awarded custody to the mother, stressing the fact that the father had
intended to permanently remove the mother from the children's lives. The
Appellate Division found that the Family Court's efforts to ensure the mother's
access to the children in Saudi Arabia were entirely insufficient, and allowed
visitation by the father only in the United States, with the mother having sole
custody of the children's passports. A successful outcome for the mother was
obtained only because the father had brought the children to Texas. This case
highlights the fact that, all too often, the courts are reluctant to impose
strict conditions to prevent parental child abduction until after an abduction
has actually taken place.
United States v. Amer
In
United States v. Amer, 110 F.3d 873
(2d Cir. 1997), Egyptian parents were living separately in New York without a
custody order. The father abducted the children to Egypt. The mother's efforts
to secure their return failed and the father procured an order from an Egyptian
court granting him sole custody. He returned to the United States without the
children and was arrested for international parental kidnapping. He was
sentenced to 24 months' imprisonment and a 1-year term of supervised release,
with the special condition that he return the children to the United States. The
Second Circuit upheld the requirement that the children be returned, since it
was closely tailored to the crime and it served to deter others from wrongfully
taking their children overseas.
While Muslim countries are
generally not parties to the Hague Conven-tion (Turkey being an exception,
although it does not fully comply with its treaty obligations), the problem
extends also to many other countries. For example, those Asian countries with
Confucian-based state family registration systems, such as China, Japan, Korea
and Taiwan, are not parties to the Hague Convention (except for Hong Kong and
Macau), and provide minimal assistance for the return of parentally abducted
children.
Japan
is a renowned haven for child abduction, particularly if the abducting parent is
a Japanese national.
See
http://www.international-divorce.com/ca-japan.htm. In any custody battle
involving a Japanese national, it would be foolhardy not to draft a custody
order that precludes visits to Japan considering the possibility that that
parent might take the child permanently to Japan. The courts in Japan will not
enforce foreign custody orders and will not take any effective steps to return
abducted children.
See "Japanese
Family Law -- or The Lack Thereof!," by Jeremy D. Morley,
http://www.international-divorce.com/d-japan.htm. A foreign parent in a
Japanese court will have minimal chance of securing anything more than extremely
occasional visitation with his or her child in Japan if the other parent is
Japanese. (Thus, in a case on which the author is currently working, the
American father who lives in Japan has been allowed to see his child only once
in 6 months, for only 2 hours, in court and with supervision).
Accordingly, if a Japanese
parent threatens to take a child to Japan, or wishes to take a child for a
temporary visit there during a time of marital strife, it is highly advisable to
seek a court order barring any such visit. While a U.S. court will doubtless be
skeptical when faced with such a motion, it is extremely important to educate
the court as to the law, procedure, customs and traditions of Japan, all of
which support a Japanese parent's desire to raise a child in Japan to the total
exclusion of the other (foreign) parent. Similar admonitions apply with respect
to other countries that are not party to the Hague Convention.
Parents who oppose
prohibiting the removal of children for temporary overseas visits often assert
that such orders are unnecessary, because wrongfully retaining a child in a
foreign country is a felony. The International Parental Kidnapping Crime Act
(IPKCA), 18 U.S.C. 1204, makes it a federal offense to remove a child from the
United States or to retain a child (who has been in the United States) outside
the United States with intent to obstruct the exercise of parental rights
(custody or visitation). Unfortunately, this law often makes a bad situation
worse, since parents who have wrongfully retained children overseas fear that
they will be arrested if they return to this country (as happened in
U.S. v. Amer, supra). In addition,
foreign countries rarely permit extradition for international parental
kidnapping, and those countries that are the most likely to do so are countries
that are already parties to the Hague Convention.
Preventing
Abductions to Non-Compliant Hague Countries
Merely because a country is
a party to the Hague Convention does not mean that it will effectively enforce
its treaty obligations. For example, the U.S. State Department has asserted that
Mexico is "non-compliant" with the terms of the Convention. U.S State Department
Report on Compliance with the Hague Convention on the Civil Aspects of
International Child Abduction, 2004. Mexico's noncompliance results from the
following problems:
-
Mexico has not enacted any legislation to implement the Hague Convention,
which has not been integrated into the Mexican legal system.
-
The Mexican Central Authority has no law enforcement
powers and Mexican law enforcement agencies make no serious efforts to
locate parentally abducted children.
-
The burden of finding an abducted child in Mexico is
left entirely to the left-behind parent. Mexican authorities provide no
effective help and if the child cannot be located, nothing happens.
-
There is an apparent lack of understanding of the
Convention among the judiciary in Mexico.
-
The Mexican Central Authority does not have adequate
resources to perform its functions under the Convention.
-
The "amparo" (a special appeal in Mexico claiming a
violation of constitutional rights) is used by taking parents to block Hague
proceedings indefinitely.
-
Mexican courts are able to reconsider the facts of a
Hague at any stage of the proceeding, which allows proceedings to be
prolonged substantially.
Accordingly, custody orders
concerning parents with strong ties to Mexico must be drafted so as to minimize
the risk that the child will be taken to that country. It would be reckless to
permit a Mexican parent who has expressed a desire to move to Mexico, and who
has strong family or business ties to Mexico, to take a child into that country
for a visit, regardless of the conditions that may be imposed to encourage the
parent to bring the child back to this country.
The State Department's 2004
report establishes that similar concerns exist with respect to Austria,
Colombia, Ecuador, Honduras, Mauritius, Turkey and Romania and, to a somewhat
lesser extent, several other countries.
Conclusion
When courts receive
applications to prevent children's temporary visits to their parents' country of
origin, they are tempted to rely on the need to respect other countries' legal
systems and on international comity to preclude them from deciding that the
foreign country may not provide sufficient guarantees that the child will be
returned. However, if counsel marshal extensive evidence to support the fact
that a foreign country will not respect or effectively enforce an American
custody order, the courts should be prepared to reach the necessary conclusion
and issue an effective remedy. It is far better to prevent children being taken
to such countries that do not fully respect their international treaty
obligations than to attempt to procure their recovery after the fact.
Jeremy D. Morley,
a member of Morley and Trager and of this publication’s Editorial Board, may be
reached at 212-372-3425 and through his Web site,
www.international-divorce.com. He handles international family law matters
in New York and, with local counsel, around the world.
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