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A short look at laws in place to prevent international child abduction
Since 1999, the courts of the United States have received more applications based on the Hague Convention on International Child Abduction than any other contracting country. See Nigel Lowe, A Statistical Analysis of Applications Made in 2008 Under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I—Global Report, Hague Conference on Private International Law, November 2011 available at http://www.hcch.net/upload/wop/abduct2011pd08ae.pdf. It might therefore be prudent to learn about The Hague Convention and other laws of the US that aim to prevent the international abduction of children.
International parental kidnapping is a federal crime, and a parent found guilty can serve up to three years in prison. 18 U.S.C. § 1204. While this may fuel the revenge fantasies of the other parent of the abducted child or be an effective deterrent, this federal law does not have provision to get the child back.
The Texas Family Code includes measures designed to prevent international child abduction, which may be utilized if there is a risk the child might be abducted. Such risk factors are whether the parent has previously withheld the child in violation of the other parent’s rights or made threats to do so, “lacks a financial reason to stay in the United States,” has a history of domestic violence or a criminal history, or has taken steps that may be considered in preparation to remove the child. Tex. Fam. Code § 153.502(a). Such steps may include quitting one’s job, liquidating assets or closing accounts, gathering records or travel documents, or selling a house or terminated a lease. Id. Additionally, the court will consider the parent’s familiar and cultural ties to the US and other countries and factors of that country, the parent’s immigration status and history and whether the parent has ever committed immigration fraud. Id. at § 153.502(b) and (c).
If the court finds there is a risk of international abduction, the court may appoint the parent who does not pose such a risk to be the child’s sole managing conservator, require supervised visitation, forbid the parent from taking the child from school or daycare or approaching the child anywhere other than the location of supervised visitations, require the child’s passport to be surrendered, order travel restrictions, or require the parent to pay a bond. Id. at § 152.503.
The Hague Convention
Should the threat of time in jail not deter a parent bent on absconding with his or her child and the measures in the Texas Family Code prove unsuccessful at preventing it and the child is abducted to a foreign county, the left-behind parent may seek return of the child through the Hague Convention on International Child Abduction. The Hague Convention is a treaty signed and ratified by the United States and over 90 other countries and provides “expeditious procedures” to return internationally abducted children to their parent to legal guardian. See The Hague Convention on the Civil Aspects of International Child Abduction, art. 2, Oct. 25, 1980, available at http://www.hcch.net/index_en.php?act=conventions.text&cid=24. The Convention only applies when a child is taken to another signatory country.
The goal of the Convention is to ensure the rights of a parent—the custody rights given in a divorce decree—are respected internationally. To this end, the Convention does not change a parent’s rights or give a parent any new rights, and proceedings under the Convention are not a decision on the merits of the parents’ custody issues. Rather provides for “expeditious” procedures to empower US courts to hear these cases and make orders to be enforced internationally, which will allow for the return of children to their country of habitual residence and custodial parent.