ATTACHMENT “B”
Custody and Access Issues in Hague Abduction Convention Partner
Countries
Introduction
As technology has
improved and international travel has increased, more and more families have
become “international.” Many children have parents of differing
nationalities or cultural backgrounds. Other children move from one country
to another with their parents as work, education or other reasons dictate.
This increased mobility and international contact has also led to a growing
number of families with international custody problems as parents go their
separate ways.
The Department
recognizes the frustration and difficulties that many U.S. parents face as
they struggle to maintain solid, meaningful relationships with their
children across borders, oceans, and sometimes even language barriers. Even
in the best of circumstances, maintaining a close relationship can be
difficult when sheer physical distance is the only barrier to contact
between a parent and child. Unfortunately, in too many instances, parents
face additional and unexpected barriers to contact with children living in
another country.
While these barriers
may prove most daunting in some countries that are not U.S. partners under
the 1980 Hague Convention on the Civil Aspects of International Child
Abduction, there is no doubt that even in Convention partner countries, a
U.S. parent can have difficulty obtaining custody or access rights and
exercising those rights. The Department of State acts on many levels to
assist left-behind parents to obtain and exercise access rights: in
multilateral fora, in bilateral discussions with high-level government
officials, in the day to day working level contacts with central
authorities, law enforcement and child welfare officials, and with taking
parents.
Services
Available to U.S. Parents
The Department and our
consular officers in U.S. embassies and consulates around the globe speak
with many U.S. parents who turn to the U.S. government for information and
assistance when their custody and access rights are in jeopardy. We work to
assist these parents in many ways. For parents who are considering whether
to file an access application under the Convention, the Department’s Office
of Children's Issues provides assistance in understanding the application
requirements and submitting the application to the Foreign Central Authority
in the country where the child resides.
If filing a access
application under the Convention is not an option, or the U.S. parent
chooses to pursue legal remedies directly through the foreign courts, we
provide basic information about the local legal system and local social
services, lists of local attorneys and basic tips on how to retain a local
attorney. To help parents who are unable to visit with their children,
consular officers abroad stand ready to arrange welfare and whereabouts
checks to verify a child’s health and current circumstances, and then report
back on the visit to the concerned parent. If the parent with physical
custody of the child refuses permission for a consular visit with the child,
U.S. consular officers request assistance from foreign authorities to
facilitate the visit or, when a consular visit is still not possible, obtain
a report from local social services on the child’s welfare.
If communication
between child and parent has been disrupted, we work with the parent to
identify alternative means to re-establish contact. The Department and
consular officers abroad can also provide information about non-governmental
organizations and other agencies that provide mediation services or
otherwise assist in negotiating regular communication and access to the
child. We are also involved at many levels in working with foreign
governments to encourage them to consider creative ways to facilitate access
for parents in the U.S.
The
Convention’s Legal Context
The Convention states
in Article 1(b) that among the Convention’s objectives is “to ensure that
rights of custody and of access under the law of one Contracting State are
effectively respected in the other Contracting States.” Article 7(f) tasks
Central Authorities to “take all appropriate measures . . . in a proper
case, to make arrangements for organizing or securing the effective exercise
of rights of access.” Article 5 provides that “ ‘rights of custody’ shall
include rights relating to the care of the person of the child, and, in
particular, the right to determine the child’s place of residence, while
“‘rights of access’ shall include the right to take a child for a limited
period of time to a place other than the child’s habitual residence.”
The principal purpose
and effect of the Convention is to secure the prompt return of children
wrongfully removed to or retained in any Contracting State to their country
of habitual residence. Under the Convention, to be wrongful and require
return of the child, the removal or retention must have been in violation of
“rights of custody”. A return application under the Convention cannot be
based on a removal that deprives the left-behind parent of “rights of
access” only.
The Convention does
not require the administrative and judicial authorities of a State party to
recognize orders concerning custody and access rights from other States.
Rather, it generally requires the authorities adjudicating a return
application to refrain from making decisions about custody rights if a child
has been wrongfully removed or retained so that decisions about custody of
the child may be made in the Convention partner country in which the child
is habitually resident.
While the Convention
details standards and time frames that administrative and judicial
authorities must use in deciding whether a child is to be returned, the
Convention is vague about how signatories should address access requests.
Article 21 provides that applications for access may be presented to Central
Authorities in the same manner as return applications, but does not require
that any specific actions be taken. Central Authorities commit themselves
“to promote the peaceful enjoyment of access rights and the fulfillment of
any conditions to which the exercise of those rights may be subject.”
Central Authorities are also obligated to “take steps to remove, as far as
possible, all obstacles to the exercise of such rights.” They “may” initiate
or assist in instituting proceedings “with a view to organizing or
protecting [access] rights and securing respect for the conditions to which
the exercise of these rights may be subject.”
Emerging
Patterns of Barriers to Access Abroad
In our contacts with
parents, we and our embassies and consulates in Convention partner countries
have noted certain common barriers that parents in the U.S. may face when
seeking to exercise rights of custody and access to children residing in
Convention partner countries. The following information is an overview,
based on observations and the experience of U.S. consular officials working
with U.S. parents and foreign government officials on specific cases and
broader issues. Whether or not parents in the U.S. choose to request formal
assistance through the filing of a access application under the Convention,
the Department and our embassies and consulates are actively engaged in
assisting parents to establish and maintain meaningful relationships with
their children abroad.
I. U.S. Court Orders Not Automatically Recognized or Enforced in Other
Countries
Not all Convention
partner countries will recognize or enforce U.S. orders related to custody
or access rights and the Convention does not require them to do so. Each
country’s domestic law determines the appropriate procedures and standards
for recognition and enforcement of foreign court orders. By recognition we
mean treating a U.S. court order as having the same legal force in the
foreign country that an order issued by a court in that foreign country
would have. By enforcement, we mean taking actions to compel individuals to
comply with the order, including, if necessary, the imposition of sanctions
(e.g., fines, arrest, removal of the child, contempt of court) for failure
to do so. Enforcement of a U.S. court order in a foreign country is usually
only possible when that U.S. order is first recognized in the foreign
country.
Recognition of a U.S.
court’s custody order granting rights of custody or access may require
registering the U.S. order with a local court or government agency, or
obtaining a domestic court order that mirrors the provisions of the U.S.
order. In some countries, a foreign court order must be registered with a
central government office in order to be recognized by domestic authorities.
In some others, mirror orders (local orders that reflect or “mirror” the
content of the original U.S. court order) are used. In most countries,
however, an individual who seeks local legal recognition and enforcement of
custody and/or access ordered in a foreign country must do so through the
local court system. This often requires hiring an attorney in the country
where the child is residing. Both parents and/or their attorney may need to
appear in person at local court hearings.
The majority of U.S.
Convention partners have mechanisms for recognizing U.S. court orders
related to rights of custody or access. Countries such as
Bosnia & Herzegovina, Ecuador, Iceland, and Spain
provide a process for recognizing orders issued in Convention partner
countries. Portugal also has a process to
permit recognition of orders from the U.S. but does not provide them the
expedited recognition it gives to European orders. In
Mexico, judges take into consideration U.S. court orders when acting
on access issues, but are not bound by them; they make an independent
decision based on the information before them.
Colombian and Italian authorities can recognize U.S. orders, but only
if they do not conflict with an existing local court order.
Venezuela processes recognition requests
through a formal and cumbersome letters rogatory procedure. Other Convention
partner countries, however, such as Cyprus, Finland,
Germany, Ireland, Serbia and Montenegro, St. Kitts/Nevis, Sweden, and Turkey,
do not recognize U.S. custody or access orders, requiring a parent to
petition in the local courts.
One of the
Department’s access cases involving Sweden illustrates the difficulties that
can arise when countries do not recognize U.S. orders involving rights of
custody or access. In this case, involving a U.S. citizen father and a
Swedish citizen mother, a U.S. custody order provided that the parents would
have joint custody, which they would exercise on a two-year rotating basis.
The order incorporated the parents’ agreement that the U.S. would remain the
child’s habitual residence and that the U.S. court issuing the order would
maintain continuing and exclusive jurisdiction to resolve all future custody
issues. Before the child had stayed in Sweden for two years under the order,
the Swedish parent filed for sole custody in a Swedish court and refused to
return the child to the U.S. at the end of the two years provided by the
U.S. custody order. Sweden does not recognize U.S. custody orders. The
left-behind parent filed an application under the Convention for the child’s
return to the U.S. The Swedish Supreme Administrative Court, after lower
courts had repeatedly found in favor of the U.S. parent’s application,
denied the child’s return, finding that Sweden had become the child’s place
of habitual residence during the child’s stay with her mother in Sweden.
After extended
litigation, the U.S. citizen father obtained an order from the Swedish
courts granting him joint custody and rights to unsupervised access to his
child. Enforcement of the order remains a problem, however, as the Swedish
mother has refused to allow the effective exercise of these rights by the
father. In such cases, U.S. parents can contact the Department in order to
request foreign central authority assistance, a welfare and whereabouts
visit by a consular officer, or in order to explore other alternatives, like
mediation, to improve access.
II. Problems Enforcing Local Court Orders for Custody and Access
Enforcement measures
designed to protect custody and access rights may include fines, arrest,
removing the child, and administrative or contempt of court sanctions aimed
at compelling compliance with court orders. In a number of countries,
however, local law enforcement or other official bodies do not have the
legal authority, resources, or will even to enforce local custody or access
orders. U.S. Embassies in Bosnia & Herzegovina,
Ecuador, Serbia and Montenegro, Turkey, and Venezuela, for example,
report that the laws of those countries do not permit the imposition of any
sanctions for violations of order related to custody and/or access rights.
In Mexico sanctions are minor and rarely
enforced in practice.
In other Convention
partner countries, U.S. parents face varying obstacles to effective exercise
of custody or access rights granted by local courts. Sometimes, parents must
file separate actions to obtain enforcement of a court’s order. In
St. Kitts/Nevis, a U.S. parent who is prevented
from exercising rights of custody or access granted under a local court
order must lodge a complaint with the court to seek remedies. Similarly, in
Slovakia, a separate request for enforcement
must be lodged with a court in order to obtain local authority enforcement
assistance if a custody order has been violated. Even in countries that
permit the imposition of sanctions against violators of custody or access
orders, if the order is not specific about times, dates and lengths of
visits, for example, it may also be difficult to prove that the other parent
has violated the order’s terms.
In some countries,
such as Colombia, Ecuador, Germany, Spain, Sweden, and
Switzerland, the authority to arrest a parent violating a court order
or to physically remove a child from the violator’s care is rarely used and
mechanisms like contempt of court do not exist or are not used in cases
involving custody or access disputes. In these countries enforcement is
often problematic. A court ordering access rarely has direct control or
influence over the police and child welfare institutions assigned the task
of implementing an order. In Switzerland, local
jurisdictions (cantons) operate independently, so, orders issued in one
jurisdiction may not be recognized or enforceable in a different
jurisdiction of the country, thus allowing a custodial parent to move the
child to a different canton to prevent visits or the enforcement of a local
access order. Local courts and law enforcement in these countries may also
be reluctant to impose and carry out jail sentences or significant financial
sanctions against parents with custody who refuse to permit the other parent
to exercise court-ordered access rights.
Strong cultural
aversion against using coercive measures to remove a child from a parent
sometimes motivates refusal by authorities to enforce access orders or the
impose sanctions on the violating custodial parent. In such cases, officials
often claim reliance on a “best interests of the child” standard and refuse
to take action because of the possible negative effect enforcement could
have on the child involved. Such justifications for non-enforcement even
occur in countries like the United Kingdom,
which the U.S. Central Authority considers a model Convention partner. One
U.S. parent recently reported that in the two years since a U.K. court
granted her access, the child’s father has persistently ensured that the
child was not available to her; local authorities have reportedly cited the
possible emotional trauma to the child as the reason for not enforcing the
access order or punishing the violating parent.
III. No
General Standards for Custody/Access
There are no
internationally recognized standards or guidelines governing the type and
frequency of access that a parent without sole custody to a child should
enjoy. Courts will usually evaluate information presented by both parents
and may interview the child before rendering a decision regarding custody or
the frequency, duration, location, and extent of access. For example,
although requesting parents in the United States may seek an order
permitting the child to visit the U.S., a court considering the request may
instead order more restricted access by, for example, permitting only
written correspondence, telephone contact, supervised visitation, or
periodic visits with the child conducted in the child’s current country of
residence. Some countries have demonstrated considerable creativity and
flexibility in solving problems of international access through the
involvement of non-governmental organizations, mediation services, and new
technologies, such as video conferencing and other video and computer-based
communications, to facilitate contact between parent and child.
Parents living in the
U.S. may face particular difficulties obtaining joint custody in
Ireland, Kosovo , Macedonia, Portugal, or Zimbabwe.
Joint custody is not possible at all in Romania
after the parents have divorced. Courts in some countries grant joint
custody to parents living in the U.S. but arranging for U.S. visitation may
be difficult or impossible. Courts may suspect that children permitted to
leave their jurisdiction will fail to return, even if promises to return the
child after a visit to the United States are agreed to in writing. In some
cases in Panama, Sweden, and Venezuela, for
example, foreign parents have had little difficulty in convincing local
authorities to block a child’s travel to the United States to visit with the
other parent.
Over a dozen of our
Convention partner countries have non-governmental organizations that have
some programs to work with and assist parents and children. Most partner
countries make governmental or private mediation assistance available to
parents. We are not aware of government mediation assistance or
non-governmental organization support for parents willing to negotiate
access in Romania, Spain, or Turkey.
IV. Child’s Interests vs. Parent’s Interests
Most courts, in
determining what custody and access rights a parent will have with respect
to a child, will consider the best interests of the child and whether the
child desires the contact with the requesting parent. In general, the
child’s views are given progressively greater weight as the child matures.
In instances where the child is sufficiently mature to state a preference,
courts may question the child directly or rely on social service
professionals and/or psychological evaluations to determine the level of
access that best fits the needs of the child. In cases where conflicts
between parents remain intense, courts often consider the child’s ability to
cope with the conflict when determining appropriate access.
In many countries,
such as in Germany, judges use court hearings
as opportunities to observe parents as part of their evaluation before
rendering a custody or access decision. A parent’s appearance at court
hearings may therefore be very important to the court’s assessment of a
parent’s access application, so that an applying parent’s failure to appear
may affect his or her interests negatively. The foreign attorney
representing a parent should provide guidance on whether the parent’s
personal appearance is essential or if other means of testimony, such as
telephone or video testimony, might be an acceptable and available
alternative.
In its effort to
determine what is in the best interests of the child, a foreign court
considering a petition for custody or access by a parent in the United
States may lose sight of the need to protect the child’s interest in a
relationship with the applying parent. Recent decisions by the European
Court of Human Rights have affirmed the right that parents and children have
to a relationship with each other and have made clear that governments
(including courts) have an obligation to respect and protect those rights.
V. Cultural or Linguistic Estrangement From the Child
International custody
and access rights cases often involve parents residing in countries with
differing cultures. Non-custodial parents may find visiting and
communicating with the child increasingly problematic the longer the child
remains in a foreign country. Language barriers frequently develop as the
child becomes settled in a non-English speaking environment. Some parents
exploit this linguistic estrangement to reinforce their argument to courts
that the child and the U.S. parent do not relate well to each other and thus
the court should not expand access. Parents who face such language barriers
may need to seek outside assistance to facilitate continued meaningful
communication with the child. Consular officers, local social welfare
agencies or non-governmental organizations may be able to assist or identify
individuals or agencies that can help. U.S. consular officers conducting
welfare visits can also verify the child’s language skills and, through
explaining the purpose of their visits, reaffirm that the child remains
aware of his/her U.S. citizenship and ties to the United States.
VI. Biases Based on Nationality, Sex, or Marital status
Embassies in 15 of our
Convention partner countries report that noticeable gender or nationality
biases affect decisions on custody and access rights. In a number of
countries, courts appear to favor mothers when deciding custody and access
matters, particularly when young children are involved. Countries that tend
to favor mothers include Argentina, Ecuador, Greece,
Iceland, Mexico, Portugal, Romania, Spain, St. Kitts/Nevis, Sweden,
Venezuela, and Zimbabwe. Courts in Belgium
have traditionally favored mothers but attitudes have started to change in
recent years. Colombian and Swiss courts
hearing custody cases tend to favor their own nationals.
Fathers who have never
married the mother of their child may also find that they are denied custody
or access rights. In Finland, the mother
controls custody of a child born out of wedlock unless and until the parents
marry. In Belgium, Germany, Greece, Sweden,
Switzerland, and Zimbabwe, an unwed father’s rights to custody or
access depend on the mother’s consent.
VII. Failure to Locate Children
Just as locating
children is a serious barrier in some return cases under the
Convention, locating children is a frequent problem for parents in the U.S.
seeking to exercise custody or access rights abroad. Foreign
parents who choose to interfere with a child’s contact with a parent in the
U.S. are aided, in some countries, by policies and local authorities that
place a low priority on locating children who are the subject of custody
disputes.
In dealing with
children taken to Mexico, for example, where
authorities have a poor record of locating abducted children, some U.S.
parents have waited for years for Mexican authorities to locate their
children. In one long-outstanding case, the U.S. parent spent several years
pursuing the children’s return through the Hague Convention process. In
1999, in the face of repeated court delays and with no idea of how much
longer the case would continue, the parent finally abandoned pursuit of the
children’s return and decided to focus on access instead. U.S. consular
officials were able to work through the taking parent’s attorney to arrange
several visits to check on the children’s welfare. In a 2003 telephone
conversation with the U.S. parent, one of the children confirmed where they
lived. This information was shared with the Mexican authorities who,
however, report they are still unable to locate the children. No progress
has been made on the access request. The U.S. parent has been separated from
the children for more than ten years.
Addressing
Access and Enforcement Issues with our Hague Convention Partners
It is clear that the
absence of shared norms concerning the substance of custody and access
rights and the lack, in many countries, of reliable mechanisms to ensure the
effective exercise of those rights represent serious obstacles to parents in
the U.S. seeking meaningful access to their children abroad. On several
levels the Department works with our Convention partners to raise
consciousness of custody and access issues, to seek consensus on how to
address them, and to enhance the ability of parents in the U.S. to establish
and maintain meaningful access with their children.
On a caseworker level,
we seek Central Authority assistance for U.S. parents to negotiate the legal
system in the foreign country where they seek custody or access rights.
Foreign Central Authorities often work with us informally, even where they
perceive no treaty obligation, to help U.S. parents address their access
concerns. They do this because we spend years developing close working
relationships of mutual cooperation and support.
Their cooperation is
reinforced by policy level engagement in which senior Department of State
officials including the Secretary, Undersecretaries, and Assistant
Secretaries provide a political context for taking access issues seriously.
These policy officials raise individual cases where necessary as well as
highlight the importance of finding systematic solutions to access
problems—problems that can cause ongoing irritations in bilateral relations.
Our Embassies abroad engage foreign government officials even more
frequently at all levels, seeking creative solutions to help American
parents achieve meaningful custody or access rights. They provide the
front-line effort in these cases and in some countries face daunting
barriers to success.
Illustrative of our
engagement with our Convention partners are the frequent opportunities
Assistant Secretary Harty takes to raise abduction and custody and access
issues in her meetings here and abroad with foreign officials. She
personally advocated for left-behind parents in individual long-standing
custody and access cases with Swedish, Austrian,
German, Italian, Turkish, Brazilian, Costa Rican, Polish, and Mexican
counterparts during the period of this report. In addition, Assistant
Secretary Harty led the U.S. Government’s efforts to address parental access
rights issues involving children in countries not party to the Hague
Abduction Convention. Both in Washington and in several trips to the Middle
East over the past year, she has met with her counterparts and other senior
officials to underline the Department’s support for improved access for U.S.
parents. Her efforts on behalf of American citizens seeking access rights to
their children in Saudi Arabia, Egypt, Lebanon,
Jordan, Morocco, the United Arab Emirates and Syria are opening doors
previously closed to us and promise to provide a model for other Convention
countries seeking access in these countries for their citizens. Her work is
helping to frame the discussion on what access should include and how we can
go about achieving it. Ambassador Harty negotiated a U.S.-Egypt
Memorandum of Understanding setting forth guidelines for possible future
arrangements on cooperation in consular cases concerning parental access to
children, signed in Cairo in October 2003, that has been greeted with
intense interest by our Convention partners. A similar Memorandum of
Understanding has been negotiated with Lebanon
and sample texts for similar arrangements have been shared with
Jordanian, Syrian, Moroccan, and Emirati
officials.
|
