State Department photo.

Another “I get this question pretty regularly” post… and the answer is usually pretty good news, in comparison to a parent’s dreaded fear.

The question usually pops up in a listserv or at some bar function, but occasionally in a call from a lawyer who’s stumbled across this blog in a Google search:  “my client’s wife is threatening to leave him and take the kids back to (insert country name here)… what can I do?” 

Well, it depends on where the child is right now.  If she’s here, as indicated in your question, do everything you can to keep her here.  Set aside the threat to take her abroad, and focus on the threat to take her– anywhere.  Know too, though, that if it does happen, the situation may not be as grave as it seems.

In many cases, the inserted country name also happens to be on the list of countries who have implemented the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction— known more commonly as the Hague Child Abduction Convention (HCAC).  While the treaty may not prevent a child being taken out of the country, it aims to provide a streamlined mechanism by which she can be returned home.  So even if the child is taken abroad against the remaining parent’s wishes, the odds are better that she can be returned.  I wrote previously  about the mechanism for return of children once they’ve been abducted– or as the treaty also addresses, taken with permission but not returned as agreed.   That earlier post came about in order to distinguish the Child Abduction Convention from the Hague Service Convention.

In short, I stressed that the way to secure the prompt return of the child is to get local law enforcement to engage HCAC channels, rather than pursuing a custody order in a U.S. court– and enduring all of the procedural delays that such a petition entails.  Instead of treading water while a Hague Service Request is processed, it’s far more effective to raise a HCAC claim.

What I didn’t point out, though, were the preventive measures  necessary to avoid the need for a HCAC claim in the first place.

My first question, when I spoke to the most recent colleague who sought assistance, was “does the kid have a passport?”

If he does, keep it in a secure place– or if the threatening parent has it, notify the police and get them to contact the State Department so the passport can be flagged.

Absent a passport, the threatening parent won’t get very far. Sure, if the child has dual citizenship, a foreign-born (abducting) parent might try to get the other country to issue one, but flags can still be raised with the country’s diplomatic legation and U.S. law enforcement.  Again, if there’s a credible threat of abduction, make a stink about it.  Make noise.  Put both countries’ authorities on notice in the most vocal way possible.

Above all else, petition the local court for a custody order immediately, with whatever form of injunctive relief is available in that jurisdiction, and serve the action before the other parent leaves the U.S., with or without the child.  The more clear the court’s intent, the easier it will be later to demonstrate an abductor’s wrong-doing to foreign authorities.

  • Pacta sunt servanda

    One thing of note to add about this Hague Convention is that it only applies to new countries acceding once the US has explicitly accepted them. It will be of no use if the child is abducted to Belarus or Bolivia. See here for a big(!) table showing acceptances of accession…