War Within Families: How Child Custody Battles Impact Foreign Affairs

DEVELOPMENTS
Cases of international parental child abduction have recently garnered significant media and Congressional attention.  A particular case with Brazil has received wide press coverage, from CNN to Oprah, detailing the long, painful journey for the young boy’s father and his supporters.  Secretary Clinton raised the case with the Brazilian Minister of Foreign Affairs, and the matter has been the subject of numerous high-level meetings between U.S. officials and the Brazilian government. Sadly, this incident is not alone.  In a recent joint press conference involving Secretary Clinton and Egypt's foreign minister, a reporter asked about a longstanding parental abduction of an American girl to Egypt.  Cases with Japan, Costa Rica, Mexico, and with South Korea have also drawn international attention lately.  In fact, records kept by the U.S. Department of State’s Office of Children’s Issues show more than 1,600 children wrongfully taken or kept abroad by a parent during 2008 – a sharp increase from previous years.  Additionally, records indicate nearly 500 children abducted to the United States from other countries during the last year.

Number of children reported abducted from the United States to other countries by a family member:

• Fiscal YearNumber of Children Reported Abducted2006
    933
  2007
  1,144
  2008
  1,615  

‍As the number of cases continues to rise, these difficult issues have the potential to increasingly affect U.S. relations with other countries.

‍BACKGROUND
More parents kidnap their children to and from the United States than any other country.  These cases can forever alter the lives of those involved.  International parental child abduction not only jeopardizes children but has substantial long-term consequences for the “left-behind” parent, the family, and society as a whole.  Children who are abducted by their parents are often suddenly isolated from their extended families, friends, and classmates.  They are at risk of serious emotional and psychological problems.  Similarly, left-behind parents face emotional trauma—and significant financial costs—compounded by unfamiliar legal, cultural, and/or linguistic barriers.

International parental child abduction is a federal crime in the United States.  The International Parental Kidnapping Crime Act of 1993 makes it a federal felony to remove a child under age 16 from the United States—or to retain a child outside the United States—with the intent to obstruct the lawful exercise of parental rights.

In the majority of cases, the most effective solution available to left-behind parents to reunite with their abducted children is the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention).  The Hague Abduction Convention is the primary civil law mechanism for parents seeking the return of the children from other treaty partner countries.  Countries that are party to the Convention have agreed that a child who was living in one Convention country, and who has been removed to or retained in another Convention country in violation of the left-behind parent's custodial rights, shall be promptly returned.  Once the child has been returned, the custody dispute can then be resolved, if necessary, in the courts of that jurisdiction. The Convention does not address who should have custody of the child; it addresses where the custody case should be heard.

The U.S. currently recognizes 68 countries as partners to the Hague Abduction Convention.  The vast majority of these countries are in North or South America and in Europe.  While the Convention is not a perfect solution to the problem of parental abduction, nearly 70 percent of returns to the United States come from countries with which the U.S. partners under the Convention.  That said, compliance with the Convention remains an ongoing challenge for many countries, particularly for countries in Central and South America.

Each year the Department of State produces and submits to Congress an Annual Report on Compliance with the Hague Abduction Convention by states party to the treaty.  The report identifies countries that are “not compliant” or “demonstrating patterns of noncompliance” with the Convention.  As described in the report, the Department analyzes the performance of each country’s Central Authority (government agency designated within each country to discharge duties imposed under the Convention), judiciary, and law enforcement to reach its findings.  The 2009 Report, released by the Department last May, cites systemic compliance failures in Brazil, Chile, Greece, Honduras, Mexico, Slovakia, Switzerland, and Venezuela.

Of these countries, Mexico’s implementation of the Convention is particularly important.  Not surprisingly, since the two countries share a long land border with no exit controls, more international parental child abductions take place from the United States to Mexico than to any other country.  The Department of State is currently providing assistance in over 500 family abductions to Mexico – cases that involve more than 850 children.  For the Mexican government, however, keeping up with the high volume of cases has been difficult.  The Mexican Central Authority suffers a decided lack of financial and personnel resources.  Mexican law enforcement rarely locates missing children, even when they are provided with strong leads on the children’s location.  In addition, too many Mexican judges incorrectly treat Convention jurisdiction cases as regular custody decisions.

Japan remains the only G-7 country that has not signed the Hague Abduction Convention. As[?] was the subject of a four-nation symposium in May 2009, the Government of Japan has consistently opposed signing the Convention and does not officially view international parental child abduction as a crime, nor as a problem in Japan.  Given Japan’s family law system and traditions, Japan’s resistance to signing the Convention places non-Japanese left-behind parents of abducted children taken to Japan at a significant disadvantage.  There is no civil or criminal mechanism for left-behind parents to seek relief for children who are wrongfully retained in Japan.  

ANALYSIS
The sharp rise in the number of parental kidnappings highlights the need to redouble the efforts by the United States and the broader international community to counter international parental child abduction.  Just one case can create a media firestorm that can quickly escalate tensions between families and potentially, between governments.  Cases such as the Elian Gonzalez custody dispute, or the Brazilian case mentioned above, are prime examples of how expeditious resolution of the custody dispute is in the best interest of the child. To avoid cases like this, abductions must be resolved quickly, which is a fundamental principle of the Hague Abduction Convention.

Compliance with the Hague Abduction Convention should be a priority for all treaty partner countries, especially those demonstrating consistent patterns of noncompliance with this important treaty.  When applied correctly, the Convention can be an effective deterrent to international parental child abduction.  All Convention countries, including the United States, can use the Guides to Good Practice published by the Hague Conference on Private International Law as standard operating procedures for being a responsible and effective Convention partner.  Increased judicial training and cooperation is particularly needed for the proper functioning of the Hague Abduction Convention, including more direct judicial communication between judges in Convention partner countries.

Countries not party to the Convention, especially Japan, should promptly join and implement necessary measures to be effective Convention partners.  Where the Convention is not in force, left-behind parents have few remedies under which to seek the return of or access to their children.  

Parents worried that the other parent might abduct their child may increasingly consider mediation as an option for resolving a dispute quickly and effectively.  Mediation may enable parents to diffuse tension and come to an agreement about custody before one parent abducts the child abroad.  It can also be an effective and affordable measure for resolving cases that have already taken place.  In addition to mediation, detailed custody orders and the Department of State’s Children’s Passport Issuance Alert Program are vital tools for the prevention of international parental child abduction.

With the significant increase in abduction cases over the past year, the need for preventing international parental child abduction has never been more apparent. In spite of the number of recent high-profile abduction cases, there remains a need for education of the American public about the harmful effects of parental child abduction and the long-term consequences for all involved.  Increased outreach about the laws governing parental kidnapping and the Hague Abduction Convention could serve to deter abductions from taking place.

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‍Ryan L. Palsrok is the Public Outreach Coordinator in the Department of State, Bureau of Consular Affairs, Office of Children’s Issues.  More information about international parental child abduction and the Office of Children’s Issues can be found at travel.state.gov/childabduction.