EXPERT EVIDENCE ON PHILIPPINES FAMILY LAW
Attorney Jeremy. D. Morley has provided expert evidence on the Philippines and international child abduction to the courts in the United States.
THE PHILIPPINES AND CHILD ABDUCTION
by Jeremy. D. Morley
Although the Philippines is now a party to the Hague Convention on the Civil Aspects of International Child Abduction, the United States has not accepted its accession. Accordingly, the Hague Abduction Convention is not in force between the two countries, nor are there any international or bilateral treaties in force between the Philippines and the United States dealing with international parental child abduction.
Therefore, there is no treaty remedy by which the left behind parent would be able to pursue recovery of the child/ren residing in the United States should they be abducted to or wrongfully retained in the Philippines. Once in the Philippines, the child/ren would be completely subject to Philippine law for all matters including custody.
The United States is not a party to any treaty or convention on the enforcement of court orders. A custody decree issued by a court in the U.S. has no binding legal force abroad, although it may have a persuasive force in some countries. Furthermore, a U.S. custody decree may be considered by foreign courts and authorities as evidence and, in some cases, foreign courts may voluntarily recognize and enforce it on the basis of comity (the voluntary recognition by courts of one jurisdiction of the laws and judicial decisions of another).
Parental child abduction is not a crime under Philippine law. Custody disputes are considered civil legal matters that must be resolved between the concerned parties or through the courts in the Philippines. Philippine authorities advise the American Embassy that generally the Philippine courts will give custody of children under the age of seven to the mother, provided there is no evidence that would indicate that the mother is unfit to raise the child. Although there is no treaty in force between the United States and the Philippines on enforcement of judgments, the Philippine courts will also take into consideration child custody decrees issued by foreign courts in deciding disputes regarding children residing in the Philippines.
The Department of Justice in the Philippines states that, in general, redress in child custody cases is sought through habeas corpus orders/ proceedings in court. These orders can be obtained on an expedited basis and direct law enforcement to locate and take a child into custody for the purposes of an emergency hearing. Ideally, these orders and proceedings ensure due process under the local laws as well as providing protection for the child/ren.
In order to bring a custody issue before the Domestic Relations/Family Court, the left-behind parent will require the assistance of an attorney licensed to practice in the Philippines. A parent holding a custody decree issued in U.S. courts must therefore retain local counsel in the Philippines to apply to the Philippine courts for recognition and enforcement of the U.S. decree, or to invoke the writ of habeas corpus. Although visitation rights for non-custodial parents are not expressly stipulated in the Philippine Civil Code, court judgments often provide visitation rights for non-custodial parents.
U.S. consular officers are prohibited by U.S. federal regulations from providing legal advice, from taking custody of a child, from forcing a child to be returned to the United States, from providing assistance or refuge to parents attempting to violate local law, or from initiating or attempting to influence child custody proceedings in foreign courts.
The American Citizen Services division of the Consular Section at the U.S. Embassy can assist in locating children believed to be in the Philippines and in verifying the child's welfare. If a child is in danger or if there is evidence of abuse, consular officers will request assistance from the local authorities in safeguarding the child's welfare. Consular officers maintain lists of attorneys practicing in the particular areas of thePhilippines, as well as general information regarding child custody practices.
While there is an extradition treaty between the United States and the Philippines,parental child abduction is not an extraditable offense. However, if the taking parent is a U.S. citizen whose U.S. passport has been revoked due to an outstanding federal Unlawful Flight to avoid Prosecution (UFAP) warrant or indictment on charges of International Parental Kidnapping (IPKCA) in violation of 18 USC Section 1204, Philippine authorities may consider deportation based on lack of a valid travel document.
Reaching the U.S. Embassy or Consulate that serves the Philippines: The U.S. Embassy in Manila is located at 1201 Roxas Boulevard, Manila City; tel. (63-2) 523-1001. The Consular American Citizen Services fax number is (63-2) 522-3242 and the ACS web page is http://usembassy.state.gov/posts/rp1/wwwh3004.html. The U.S. Consular Agency in Cebu provides limited services for U.S. citizens. The Consular Agency address is: Third Floor, PCI Bank, Gorordo Avenue, Lahug, Cebu City; tel. (63-32) 231-1261.
Reaching the Foreign Country's Embassy in the U.S.: For further information, contact the Embassy of the Philippines, 1600 Mass. Ave., N.W., Washington, D.C. 20036 (202/467-9300) or nearest Consulate General: CA (213/387-5321 and 415/433-6666), HI (808/595-6316), IL (312/332-6458), NY (212/764-1330), or Guam (671/646-4620). Internet address: http://us.sequel.net/RPinUS/
A child with a parent who was born outside of the U.S. or who has acquired a second nationality through naturalization in another country may have a claim to citizenship in that country. There is no requirement that a U.S. citizen parent consent to the acquisition by his/her child of another nationality and in many cases a parent is unaware that his/her child may have dual citizenship. The Embassy of the Philippinesin Washington D.C. will be able to provide more detailed information on whether your child has a claim. For additional information, see the Consular Affairs home page on the Internet at http://travel.state.gov for our Dual Nationality flyer.
New Law on Passport Applications for Minors: On July 2, 2001, The Department of State began implementation of the new law (Section 236 of P.L. 106-113) regarding the passport applications of minor U.S. citizens under age 14. Under this new law, a person applying for a U.S. passport for a child under 14 must demonstrate that both parents consent to the issuance of a passport to the child or that the applying parent has sole authority to obtain the passport. This law covers passport applications made at domestic U.S. passport agencies in the United States and at U.S. consular offices abroad. Exceptions to this requirement may be made in special family circumstances or exigent circumstance necessitating the immediate travel of the child. The purpose of the new requirement that both parents' consent be demonstrated is to lessen the possibility that a U.S. passport might be used in the course of an international parental child abduction.
Children's Passport Issuance Alert Program (CPIAP)
Separate from the two-parent signature requirement for U.S. passport issuance, parents may also request that their children's names be entered in the U.S. passport name-check system, also known as CPIAP. A parent or legal guardian can be notified by the Department of State's Office of Children's Issues before a passport is issued to his/her minor child. The parent, legal guardian or the court of competent jurisdiction must submit a written request for entry of a child's name into the Passport Issuance Alert Program to the Office of Children's Issues. The CPIAP also provides denial of passport issuance if appropriate court orders are on file with the Office of Children's Issues. Although this system can be used to alert a parent or court when an application for a U.S. passport has been executed on behalf of a minor, it cannot be used to track the use of a passport. If there is a possibility that your child has another nationality, you may want to contact the appropriate embassy or consulate directly to inquire about the possibility of denial of that country's passport. There is no requirement that foreign embassies adhere to U.S. regulations regarding issuance and denial of passports. For more information, contact the office of Children's Issues at 202-312-9700. General passport information is also available on the Office of Children's Issues home page on the Internet at http://travel.state.gov/children's_issues.html.
Initiating Foreign Enforcement Proceedings Under Local Law
If a country is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, it may be necessary for you to initiate a child custody action in the courts in the foreign country. This usually will require retaining the services of an attorney abroad (See below). The Department of State, Office of Children's Issues is not a repository for foreign laws. However, selected information may be available concerning general procedures on child custody in particular countries. Contact the Office of Children's Issues to see if such information is available. For additional information, see judicial assistance for the Philippines on the Internet at http://caweb/cainternet/philippines_legal.html. Consular Information Sheet (CIS) for the Philippines can be accessed via the Consular Affairs home page at http://travel.state.gov.
Retaining a Foreign Attorney
A list of English speaking attorneys is available from the U.S. State Department Office of American Citizens Services. (See also our general information flyer, Retaining A Foreign Attorney or via our home page on the Internet under Judicial Assistance at http://caweb/cainternet/judicial_assistance.html#attorneys.) See also the Martindale-Hubbell Law Directory available in law libraries. It may be helpful to provide your foreign attorney with copies of any state laws concerning child custody orders and their enforcement in the U.S.
Some countries provide legal aid services in child custody cases. The legal attache or consular section of the foreign embassy in Washington, D.C. may have specific guidance. For addresses and phone numbers of foreign embassies in Washington, see the heading "Entry Requirements" in the Office of American Citizen Services' country specific Consular Information Sheets via our home page on the Internet. Legal aid information may also be available from a local branch of the International Social Service. The ISS' headquarters are in Geneva, Switzerland, but information or assistance may be available through its New York branch at 10 W. 40th Street, New York, N.Y. 10018, Tel. No.: 212-532-6350. The National Center for Missing and Exploited Children maintains a list of attorneys interested in Hague Convention and International Child Custody cases. You may obtain additional information about the attorney program at the National Center by calling 1-800-843-5678 or 703-274-3900. The Internet home page for the National Center can be reached directly at www.missingkids.org. See also the US Department of State flyer Retaining a Foreign Attorney, available via our home page on the Internet for other reference sources on legal aid.
Authentication and Translation of Documents
It may be necessary for you to provide foreign authorities or your attorney with authenticated, translated copies of your child custody order and any other pertinent documents. Consult your foreign attorney before going to this expense. An information flyer explaining the authentication process is available from the Office of American Citizens Services, through our automated fax system or via our home page. These topics include Hague Legalization Convention and General Authentication Flyer. See also the U.S. State Department's Authentications Office home page at http://www.state.gov. Service of Process: If you need to serve process on a person abroad in connection with a child custody case, you may obtain copies of our country specific judicial assistance flyers on this subject through via our home page on the Internet at http://caweb/cainternet/judicial_assistance.html. See also, Service of Process Abroad, Hague Service Convention, Inter-American Letters Rogatory Service Convention, and Preparation of Letters Rogatory. See also the Department of State office of the Legal Adviser for Private International Law (L/PIL) home page at http//www.lpil.com.
The Department of State is not a law enforcement agency. The Department of Justice, Office of International Affairs works with US prosecuting attorneys, the Federal Bureau of Investigation and with Interpol (an international police agency) in a joint cooperative effort to return persons charged with US crimes from foreign countries. Extradition of the abducting adult may not result in the return of the child. Foreign countries may refuse to extradite a person to the US if that person is also a citizen of the foreign country. Foreign countries may not recognize parental abduction as a crime. Please note that the extradition process applies only to the abducting adult/fugitive and not the child. The proper channel for the return of the child is through civil mechanisms or voluntary return arrangements. Additional information is also available on the Internet at the web site of the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention (OJJDP) at http://www.ojjdp.ncjrs.org. Additional Information: The Office of American Citizens Services has available general information flyers on international judicial assistance, many of which are available through our automated fax system or via our Internet Consular Affairs home page. These topics include country-specific information about service of process and obtaining evidence abroad.
1. Using the Autofax System:
- Dial (202) 647-3000 using the phone on your fax machine.
- Follow the prompt to obtain a catalog of documents.
- Call back to request the documents that you need.
2. Using the Internet: Many of our judicial assistance flyers are also available on the Internet via the Department of State, Bureau of Consular Affairs home page at http://travel.state.gov under Judicial Assistance. See also, the Department of State, Office of the Legal Adviser for Private International Law home page for information regarding private international law unification. See also the home pages for many of our embassies.
The Overseas Citizen Services (OCS) in the Bureau of Consular Affairs (CA) has general information about arranging for consular visits to abducted children, hiring a foreign attorney, service of process, enforcement of child support orders, and international enforcement of judgments, which may supplement the country-specific information provided in this flier. In addition, the Department of State publishes Consular Information Sheets (CISes) for every country in the world, providing information such as location of the U.S. Embassy, health conditions, political situations, and crime reports. If the situation in a country poses a specific threat to the safety and security of American citizens that is not addressed in the CIS for that country, the Department of State may issue a Public Announcement alerting U.S. citizens to local security situations. If conditions in a country are sufficiently serious, the Department of State may issue a Travel Warning recommending that U.S. citizens avoid traveling to that country. These documents are available on the Internet at http://travel.state.gov or by calling the Department of State's Office of Overseas Citizen Services at (202) 647-5225.
Toll Free Hotline
Overseas Citizens Services in the Bureau of Consular Affairs (CA/OCS) has established a toll free hotline for the general public at 1-888-407-4747. This number is available from 8:00 a.m. to 8:00 p.m. Eastern Standard Time, Monday through Friday (except U.S. federal holidays). Callers who are unable to use toll-free numbers, such as those calling from overseas, may obtain information and assistance during these hours by calling 1-317-472-2328. Persons seeking information or assistance outside of these hours, including on weekends or holidays should call 1-202-647-5225.
The OCS hotline can answer general inquiries regarding international parental child abduction and will forward calls to the appropriate Country Officer. For specific information and other services available to the searching parent, please call the Office of Children's Issues public phone number at 1-202-312-9700 during normal working hours.
Additional questions may be addressed to the appropriate country officer of the U.S. Department of State, Bureau of Consular Affairs, Office of Children's Issues, SA-22, 2201 C St., NW, Washington, D.C. 20520-4811, TEL: (202) 312-9700, FAX: (202) 312-9743.
Additional information regularly updated is available on the Internet at the Bureau of Consular Affairs home page. That Internet address for the Office of Children's Issues is http://travel.state.gov/children's_issues.html.