USA Law and Practice Contributed by: Valentina Shaknes, Jordan Messeri, Malissa Osei and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
punishable by up to three years in prison and a fine of up to USD10,000. 3.2 Steps Taken to Return Abducted Children The USA is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “1980 Hague Convention”). The 1980 Hague Con - vention is a multilateral treaty to which more than 100 other countries are signatories. It is designed to pro - tect children internationally from the harmful effects of their wrongful removal, by establishing an expe - dited process for the courts or administrative agen - cies of the country to which the child is removed to return the child to the child’s home country (“state of habitual residence”). The 1980 Hague Convention is not a mechanism for resolving custody disputes and, in that expedited proceeding, custody issues are not addressed. Indeed, the fundamental purpose of the 1980 Hague Convention is to ensure – by promptly returning the child – that custodial issues are decided by the country of the child’s habitual residence, rather than by the country to which the child was abducted by a parent. Each of the signatory member states to the 1980 Hague Convention has a Central Authority, which helps to locate abducted children, encourages reso - lutions of parental abduction cases, and processes requests for the return of children in what are known as both “incoming” and “outgoing” cases. A proceed - ing pursuant to the 1980 Hague Convention may be brought directly before the courts of a signatory state or through the Central Authority of the state of habit - ual residence, which co-ordinates with the Central Authority of the country the child was taken to. Cases pursuant to the 1980 Hague Convention are brought in the country in which the children are located, seeking return to the state of habitual residence. In the USA, the 1980 Hague Convention is imple - mented through the International Child Abduction Remedies Act (ICARA), a federal law enacted by the US Congress in 1988. Section 9001 (a)(4) of ICARA mandates the prompt return of children “wrongfully removed or retained” within the definition of the 1980 Hague Convention, unless one of the narrow excep - tions to the return applies. ICARA further establishes a uniform process for “prompt return” and directs that
states must act “expeditiously” to return children to their “state of habitual residence”. The Office of Chil - dren’s Issues within the Department of State serves as the Central Authority for the US government. If a child is removed from the USA without the appro - priate consent or an order of the court permitting such removal, the left-behind parent can file a petition for the return of the child under the 1980 Hague Conven - tion, provided that the country to which the child has been removed is a signatory to the 1980 Hague Con - vention. The Office of Children’s Issues will assist in locating the child and with transmitting the request for the return of the child to the country where the child is located, and with locating counsel in such country. If the country to which the child has been taken is not a signatory to the 1980 Hague Convention (eg, China, Russia or India), the Office of Children’s Issues may still be able to assist with the return of the child. However, this process is far more complicated and the resources of the Office of Children’s Issues are more limited. 3.3 Hague Convention on the Civil Aspects of International Child Abduction When a child is taken to the USA from another coun - try that is a signatory to the 1980 Hague Convention, the left-behind parent seeking the return of the child will need to file a petition under the 1980 Hague Con - vention. The petition can be filed in the child’s state of habitual residence and will be transmitted through such country’s Central Authority to the USA. Pursuant to the 1980 Hague Convention, proceedings for the return of the child must be filed in the country where the child is located. The Office of Children’s Issues maintains a network of attorneys who provide legal assistance to the par - ents seeking the return of their children and will assist with obtaining legal representation. Depending on the applicant’s financial circumstances, these attorneys may accept incoming 1980 Hague Convention cases for a reduced fee or no fee. Eligible Hague applicants may request pro bono (no fee) or reduced fee legal assistance, and the Office of Children’s Issues will also assist with interpreting. There is, of course, no guaran - tee that an attorney will volunteer to take the case. In
152 CHILD RELOCATION 2026
CHAMBERS.COM
Powered by FlippingBook