Child

Parental Child Abduction

Last Updated Oct 5, 2008 07:47 AM

Assistance in Child Custody Disputes and International Parental Child Abduction

The Department of State in Washington, D.C., U.S. Embassies and Consulates receive many requests for advise and assistance from parents whose children have been taken from the United States or prevented from returning to the United States by the other parent. The Department and its Foreign Service posts will do whatever they can to assist parents who are involved in child custody disputes; however, in most cases, the amount and type of assistance which can be provided is quite restricted. While the Department attempts to be of assistance in these matters, it cannot assume responsibility for any failure or inability to comply with the wishes of parents or guardians.



Jurisdictional Limitations and Legal Assistance

If the parents cannot work out an amicable settlement of a child custody dispute, the only recourse may be a court action in the country where the child is located. The law of the country in which the child is physically present, even temporarily, is controlling.

Traditionally, the legal doctrine to which most countries have adhered is that the presence of a child within a particular country renders its courts competent to determine who should have custody of the child, regardless of any prior custody judgment issued by a court in another country. As a result, it is not unusual to find conflicting custody decisions in different jurisdictions. Courts in some countries have honored American custody decrees, but on the whole the outcome is unpredictable. The United States Government cannot force a foreign country to honor any American court order regulating custody or visitation rights.

Several States in the United States have entered into arrangements with some foreign countries to provide reciprocal automatic recognition of court child custody and support orders. The numbers of States and countries involved in such arrangements is slowly increasing.

The Australian Family Law Act of 1975 provides that when an foreign custody order is registered in Australia under Section 68 of the Act, the order has the same force and effect as if it was an order made under that section of Australian law. For further information on procedures, please contact the Family Court of Australia, Sydney Registry, at (02) 9581-7111, or the Secretary, Attorney General’s Department at (02) 6250-6000.

Although U.S. consular officers can provide lists of attorneys in their consular districts, they cannot recommend any particular attorney, offer legal advice, represent U.S. citizens in custody or other hearings before foreign courts, or attempt to influence the outcome of those hearings.

Consular officers have no legal authority to obtain physical custody of children and return them to the United States. They cannot assist a parent in acquiring physical custody of a child illegally or by force or deception. Officers cannot help a parent to leave a foreign country with child whose custody is disputed if the departure would violate a court order or the laws of the foreign country. They can, however, provide a passport for a U.S. citizen child whose custody is disputed if the child appears in person and the consular officers have not received a court order issued by the foreign government barring the child’s departure from the country or awarding custody to someone other than the parent accompanying the child.



The Hague Convention on Child Abduction

In October 1980, the Hague Conference on Private International law unanimously adopted the Hague Convention on the Civil Aspects of International Child Abduction, which was signed by the United States on December 23, 1981. Australia and some 21 other countries are also signatories to the Convention. The purpose of this multilateral treaty is to secure the prompt return of children wrongfully removed from or retained in any country which is a party to the Convention.

The countries that are parties to the Convention have agreed that, subject to certain limited exceptions and conditions, a child who is removed from or retained in one of the signatory countries shall be promptly returned to the other member country where the child habitually resided before the abduction or wrongful retention. The Convention also provides a means for helping parents to exercise visitation rights abroad. There is a treaty obligation to return an abducted child below the age of 16 if application is made within one year from the date of the wrongful removal or retention. The requesting parent must have been actually exercising custody at the time of the abduction and must not have consented to the removal or retention of the child. There are certain other conditions which must be met as well.

Each country that is a party to the Convention has designated a Central Authority to carry out specialized duties under the Convention. Parents are asked to contact your local Central Authority directly, not through the Embassy or Consulate. To obtain information on how to invoke the Convention, contact:

In the United States:

Office of Children’s Issues
Overseas Citizen Services (CA/OCS/CI)
Department of State
Washington, D.C. 20520-4818
Tel: (202)736-7000
Fax: (202)647-2835

See also Child 587 1 - 9