Publication: Bar Association of San Francisco Bulletin, Volume 5, Number 4
Last December, we all watched as nine year old Sean Goldman was returned to his American father after living the last five years in Brazil with his mother who abducted him. It was not until his mother passed away that the Brazilian courts ordered his return to his father. This case shed light on the increasing problem of international parental abduction cases. The State Department reports that the number of abducted children has increased by 50% in the last two years. A recent San Francisco Examiner article reported that of the approximately 3,000 children who have been abducted by a parent and removed from the U.S., 50 of these children are from the Bay Area. This is not surprising given the Bay Area’s rich cultural diversity. Bay Area family courts are becoming increasingly cautious of allowing parents to travel out of the country with their children for fear that these parents will find safe haven with their now abducted children in other countries.
Currently, the main legal protection against international abduction is the International Parental Kidnapping Act which makes it a federal crime for one parent to abduct a child. The Act is intended to work alongside the 1980 Hague Convention on the Civil Aspects of International Child Abduction (adopted in the U.S. as the International Child Abduction Remedies Act). The Hague Convention is intended to return children to the non-abducting parent through civil remedies. It asks signatory nations to create internal systems to ensure the return of the child without litigating the custody issue itself.
However, enforcement problems under the Hague Convention are well documented. Many countries are not signatories to the Hague Convention (only about 35% of countries are signatories) and thus are not bound by it. The majority of the non-signatory countries are in the Middle East and Asia. Even signatory countries do not enforce its provisions, often by litigating the issue of custody according to their laws.
The resurgence in international abduction cases, and the Goldman case in particular, has lead one New Jersey Representative to introduce H.R. 3240, the International Child Abduction Prevention Act of 2009. If passed, the Act will establish an office within the State Department to assist with the return of children and enable monetary sanctions for non-compliance in the return of children.
Attorneys and courts are increasingly asked to provide protections against international parental abductions before they occur. Listed below are some preventative measures:
- Have a custody order. It will be much more difficult to recover a child without one.
- State clearly in the order that the U.S. is the home country of the child.
- Register the child with The Children’s Passport Issuance Alert Program (CPIAP) through the U.S. State Department. A parent may register his/her child so long as the parent has not has his/her legal rights terminated and the child is a U.S. citizen. Registering will allow the parent to be informed when someone tries to obtain a passport in the child’s name.
- If the other parent is traveling abroad, ask the family court to put specific restrictions on that parent’s travel with the child. In San Francisco, the family court will order an exact itinerary, including layovers and the length (including hours) of the trip. The child’s passport will not allow for travel outside of the Court’s order if it is properly coordinated with the State Department.
- The State Department and American Bar Association suggest that the traveling parent be required to post a bond that will be forfeited if the child is not returned.