Each year, the United States receives thousands of immigrants accompanied by their children seeking refuge or a legal status. The reasons to flee from a country are abundant; violence, economic instability, humanitarian crisis... However, what happens when the parent who flees their country, wrongfully removes their child against their custody rights? Sadly, every month hundreds of children are taken by one of their parents, illegally, without the other's permission. This action is called "Parental Kidnapping," and it is a severe crime punishable by both US federal and international laws.
Parental Kidnapping is defined as the abduction or retention of a child, by their parent, in violation of custody or visitation rights agreements. Keep in mind that even though parents may be already separated or divorced, it is assumed that both parents share equivalent custody over their children; unless there are limits for one of the two parties by orders of a judge or by mutual consent. Parental Kidnapping is illegal in the United States, as it is in most countries, and constitutes a much more complex process than a simple custody battle in family court.
On an international scale, parental abduction is legally addressed through the Hague Convention on the Civil Aspects of International Abduction of Children. This Convention, which 100 signatory countries have agreed to, promotes the immediate repatriation of children under the age of 16 to their country of "habitual residence”. In the United States, this Convention is implemented in state and federal courts under the International Child Abduction Remedies Act (ICARA). The goal of ICARA is to provide a simple domestic process, and prompt the child’s safe return to their country.
An application of the Hague Abduction Convention must be submitted to begin the case of repatriation of your child. This application must be submitted in less than one (1) year after the kidnapping, to the Office of Children's Issues located in Washington DC, and may be carried out by the parent in abandonment, or by a third party who will insure the right of access to both parents when each of them live in different countries. The Office of Children's Affairs shall contact the Central Authority of the country where your child is located to begin the search and process of repatriation. If your child was brought from another country and is in the United States, the Office of Children's Issues acts under the parameters of the Hague Convention to locate and protect them throughout the repatriation process.
There are two types of cases under the Convention, you can apply for "repatriation" if you seek to bring the child back to their country of habitual residence, or you can choose "access" to obtain visitation rights. Both application forms are introduced in a similar way, and it is highly recommended to get the help of a specialized lawyer to guide you through this process.
To complete the Hague Abduction Convention Application, you should obtain the guidance of a lawyer, since important legal documents regarding all parties involved are required;
- Basic information about the people involved in the case; your child(ren), yourself, and your child’s other parent, including identification documents, marriage and birth certificates.
- Declaration of the events that have occurred since the moment of the kidnapping; detailed information such as date and place where the illegal taking of the child occurred, the relationship between both parents and how you learned about the situation.
- Explanation of the reasons for invoking the Convention; indicating information about the habitual residence of the child, evidence of the rights of the parent’s custody rights and declaration of other legal processes.
- Explanation of the steps to carry out the safe return of the child; including transportation tickets and accompanying adults.
- Information of people who may know of the child’s whereabouts, and may be of assistance to the Central Authority of the country where the search will take place.
The Department of State, in its 2019 Annual Report on International Abduction of Children, accounted 1812 cases processed by the country officers. Of those cases, 1018 were incoming cases of children brought to the US, and 794 were outgoing abduction cases. Generally, these cases proceed in a simple manner due to the urgency required by the Convention. The application to this process, although without statute of limitations, should be filed in less than a year, and many courts treat these cases within a period of six weeks. However, when a defense against repatriation arises, or when the child has reached an age that allows him or her to decide on their own, the legal process can become extraordinarily complicated.
The American Bar Association recommends attorneys to further serve at-risk families and children inside federal courts. Many clients are unfamiliar to Parental Abduction and the awful consequences of this crime, furthermore, they end up hiring immigration lawyers that lack experience in federal trial practice, matrimonial law, or child protection. If you are the victim of this type of crime and the other person is placing a defense against repatriation, or on the contrary, you are wrongfully accused of kidnapping your child, it is important that you have the necessary tools to act throughout the legal proceedings.
At Musa-Obregón Law PC, we are a team of lawyers with expertise in family law and immigration. In addition, our Attorney Director Michael Musa-Obregón, is a former New York City prosecutor with extensive experience in criminal defense. Each month we work hundreds of cases in protection of immigrant minors. Do not hesitate to contact our team through a free initial consultation by calling 888.502.8461 or sending us a message online.