International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Summer 2015 Issue
 

100 Ways

 

International Law: One Hundred Ways It Shapes Our Lives

100 Ways

Resolving more easily and consistently child custody disputes and abduction cases.

By: T’Aria Reynolds, Intern, International Judicial Academy

(In celebration of the 100th anniversary of the founding of the American Society of International Law in 2006, the Society published a pamphlet titled International Law: One Hundred Ways It Shapes Our Lives. The introduction gives an explanation for its conception: an affirmation that: “international law not only exists, but also penetrates much more deeply and broadly into everyday life than the people it affects may generally appreciate.” This column seeks to elucidate and elaborate on many of the 100 ways briefly presented in the ASIL pamphlet.)

Family law encompasses interstate and international child custody cases. Resolving child custody disputes between parents who reside in different states can be challenging. Furthermore, resolving a child custody dispute when a parent takes a child across international borders creates greater challenges. As human society continues to move towards becoming a global society international child custody disputes are likely to increase.    

Since the 1980’s The Hague Convention on the Civil Aspects of International Child Abduction (“Convention”) has been the principle guide for enforcing the return of an abducted child, sixteen and under, to the child’s “home” country. The Convention provides for the “immediate return of children who are taken from their country of “habitual residence” in violation of custody rights.” The treaty attempts to preserve the custody status quo that existed immediately before the wrongful removal of a child. However, if a year has passed the alleged abducting parent can prove the child should not be returned because the child is now settled in its new environment.

 

One element the Convention lacks is the authority to impose criminal sanctions on the alleged abducting parent. In order to prosecute the abducting parent Congress adopted the International Parental Kidnapping Crime Act of 1993 (“PKPA”). The PKPA makes it a federal crime “to remove a child from the United States or retain a child outside the United States with the intent to obstruct a parent’s custodial rights, or to attempt to do so.“ (See 18 U.S.C. § 1204)

As an example of what should a U.S. non-abducting parent do if that parent becomes embroiled in the middle of an international custody dispute? First, the non-abducting parent should determine whether the country where the child has been taken to is a party to the Convention. Second, the non-abducting parent should file a “petition for return” under the Hague Convention with the U.S. State Department’s Office of Children’s Issues (OCI). Third, once the petition has been filed and received by the foreign country, where the child is now residing, a hearing is held in the foreign country’s courts. The non-abducting parent will need to find and hire an attorney in the foreign country to represent him/her in the custody dispute. Lastly, if the decision is favorable to the non-abducting parent then the child is returned to his/her custody (contingent upon the parent locating the child in the foreign country).

Arguably one of the most difficult family law cases involves a custody dispute where one parent has decided to wrongfully remove a child from its home country. The process alone can be challenging and stressful for a parent. International custody disputes are difficult to navigate for all parties involved. While the Convention provides an avenue for parents to seek the return of a child the process could take months or even years. However, at least there is a path that can be taken to make child custody and child abduction cases capable of being resolved in a more rational manner.

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© 2015 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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