Parental Kidnapping

Interamerican University of Puerto Rico

Law School

To: Prof. Andrйs Cуrdova Phelps

Student's Dean

From: Hernan Marrero

L00012480

Date: December 13, 2005

Re: Parental Kidnapping

Since the 1970s, the State Department estimates that it has been contacted for help in about 11,000 international child abductions where a parent was involved. The State Department estimates an average of 400 to 500 new international cases per year. A recent study by the American Bar Association Center on Children and the Law shows that in 60 percent of international abduction cases, the children are never returned even though their whereabouts are known. To resolve custody disputes and jurisdictional involving different countries caused by the international abduction of children, the international law adopted in October 25, 1980 the Hague Convention on Civil Aspects of International Child Abduction. The Convention provides common rules and procedures to determine child custody.

The preamble of the Convention states that its primary purpose is "Desiring to protect children internationally from harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence as well as to secure protection for rights of access." So it can be said that the primary purposes of the Convention are to deter persons from committing international abductions, and to provide a prompt remedy for the return of abducted children. Before the adoption of the Convention, the only practical solution for some parents was to self help by obtaining the child by force. The primary object of the Convention as stated in the Article 1, is "(a) to secure the prompt return of the children wrongfully removed or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting State." The purpose of the Convention, then, is to preserve the status quo by returning the child to the country of "habitual residence" and allowing the judicial authorities in that country to decide the merits of the custody dispute under its own law without either party gaining and advantage by removing the child to another country to utilize a more favorable judicial system. Thus the cornerstone of the convention is the mandate return of the child to his or her circumstances prior to the abduction if one parent removal of the child from or retention in a Contracting State has violated the custody rights of the other, and is, therefore "wrongful."

The Convention has two aspects, returning the children that have been wrongfully removed or withheld and ensuring the parents the right of foreign parents, so in every action brought for the return of a child under the terms of the Convention; the most important question is whether there has been a wrongful removal or retention. In its article 3 the Convention states that there a two different scenarios in which the removal or retention of a child is going to be considered wrongful, there are (1) in a breach of the rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitual resident immediately before the removal or retention, and (2) at the time of removal or retention the rights of custody were actually exercised or would have been so exercise but for the removal or retention. This Convention only applies to the children under the age of 16 years. 'Right of custody' is determined in the Convention in its article 5 as to include the "rights relating to the care of the person of the child..." and more importantly "the right to determine the child's place of residence." The Custody rights must be determined by the law of the country of habitual residence, that it's why the courts must first decide which country constitutes the habitual residence of the child.

There are two methods of implementing the Convention when there is a claim of a breach of custody. The first method is to contact the central authority of the country in which the children have abducted or withheld or to the Central Authorities of the requesting state; and the second method is to make a judicial claim directly in the appropriate jurisdiction. For the implementation of the first method, article 6 requires the contracting states to designate a Central Authority to discharge the duties which are imposed by the Convention. In the United States the Central Authority is the Department of State. Also in its article 7 it is stated how the Central Authority should act when there is a claim. It reads as follows: "Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of the children and to achieve the other objectives of the Convention." Thus the Central Authority's role is to cooperate with the Central Authorities of other Contracting States, to locate children who have been wrongfully remove, to attempt to secure the voluntary return of the child or facilitate a resolution of the issue, to exchange information relating to the social background of the child, to provide general information concerning the law of the contracting state, to initiate or facilitate proceedings before the courts or administrative authorities to obtain the return of the child, to otherwise facilitate proceeding by providing legal aid and advice, and to keep other states informed as to the progress of cases and to eliminate any obstacles to its application. A claim that a child has been wrongfully removed or retained in a breach of custody rights can be made either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State, as stated in the article 8 of the Convention.

When there is a claim of a wrongful removal or retention of a child, the Central Authorities of the Contracting States to which the child has been removed or retained, the Administrative or Judicial Authorities should not decide on the merits of the rights of custody until it has been determined that the child is not to be returned under the Convention. It also can be determined when an application under the Convention is not done within a reasonable time following receipt of the