The Hague Convention on International Child Parental Abduction

What happens if a parent takes a child outside of the country in violation of the other parent’s rights of custody, access and/or visitation? Outcomes vary and largely depend on whether the parent removed the child to a “Hague” or “non-Hague” country.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) is an international treaty. This treaty created a process to return children taken from their place of “habitual residence” in violation of a parent’s (or guardian’s) custodial rights. The Hague Convention is in force between the United States and 80 other countries.

Under the Hague Convention, each participating country designates a “Central Authority.” The Central Authority serves as the main point of contact for parents and other governments involved in international child abduction cases. It also helps to locate abducted children and processes requests for their return (or for access to them). In the United States, the Central Authority is the State Department’s Office of Children’s Services.

Suppose someone wrongfully removes a child to a Hague Convention member state. In that case, there’s a process involving intra-country cooperation to resolve the custody dispute and facilitate the child’s return, where appropriate.

If someone removes a child to a non-Hague country, official intervention to facilitate the child’s return is limited. The U.S. Central Authority may still reach out to counterparts in the receiving country. And it may offer informal assistance to families. Yet results will vary as some non-member countries lack the civil infrastructure to facilitate the child’s return. Or, they have different laws regarding custody that impact their willingness to follow U.S. court orders.

What can you do to protect your child from international parental kidnapping?

Take Affirmative Steps to Establish Your Rights to Custody

By definition, parental kidnapping can only occur if one parent interferes with the other’s legal right to custody or access (to the child). As such, a father of an out-of-wedlock child who hasn’t formally established his paternity/rights to custody must do so before benefiting from Hague Convention protections. Meanwhile, divorcing but still married parents generally have concurrent rights of custody. This can mean that a parent absconding with the parties’ child may not have necessarily engaged in “parental kidnapping.” Accordingly, married parents navigating the divorce process should exercise caution if a court has yet to set a custody order and a parent is contemplating international travel.

Include Language Limiting Travel in Your Custody Order

An unclear custody order—or one that doesn’t address international travel at all—can make it difficult to get relief in international parental kidnapping cases. Custody orders should be clear on the rights to apply for a child’s passport and when, where, and how a parent may travel internationally with the child.

When a parent seeks help under the Hague Convention, the receiving Central Authority will review the specific language of a custody order. In doing so, they will determine whether there has been a “kidnapping” and whether intervention is appropriate. Make sure that you’re providing the court with clear, specific language relating to international travel, whether the language is agreed upon (such as in a Separation Agreement), or is proposed for incorporation in an order following a trial or motion hearing. The clarity of the language in your Judgment may be the difference between a successful and unsuccessful Hague application.

When international travel is contested, the judge must make a fact-based determination regarding what’s in a child’s best interests. The court will almost certainly consider whether the parties anticipate travel to a non-Hague Convention country. However, there are known predictors of risk for parental abduction. You should present these factors and any related evidence to the Court with your request to limit travel.

Age of Maturity Under the Hague Convention

The Hague Convention defines a “child” as a person under age 16. Therefore, notwithstanding a custody order that may be in effect until a child reaches the age of 18, formal Hague remedies are not available after age 16 (although informal assistance may still be available).

This suggests that parents of children approaching their 16th birthday should exercise additional caution regarding international travel. Orders requiring that one parent hold the child’s passport may be useful. In addition, a party may be able to persuade the Court to require a traveling parent to post a bond to secure their return following travel. These precautions may be helpful for a child of any age.

Enroll in CBP’s Prevent Abduction Program

If you have a court order prohibiting international travel, you may qualify for the Customs and Border Protection’s Prevent Abduction Program. Under this program, Customs and Border Protection (“CBP”) creates a travel alert for the child at risk of abduction and potential abductor(s). Using the Advance Passenger Information System (“APIS”), CBP monitors real-time passenger data for those traveling to and from the U.S. via commercial carriers. This data is then cross-referenced with existing travel alerts to identify and intercept potential abductions.

Once an alert has been created, the following measures may be taken:

• If a child at risk of abduction attempts to travel aboard a commercial carrier, their travel alert data will match against their APIS data. This will trigger an automatic notification to CBP.

• If CBP identifies travel, CBP officers in the Prevent Abduction Program notify the Department of State’s Office of Children’s Issues. Those CBP officers then coordinate with CBP officers at the airport, seaport, or land border Ports-of-Entry to intercept the child before departure.

• CBP at the airport, seaport, or land border will then coordinate with local law enforcement to enforce the valid court order.

Enroll Your Child in the Children’s Passport Alert Information System

Even without an order prohibiting international travel, both parents must provide consent for a child under 16 to obtain a U.S. passport. Enrolling in the Children’s Passport Issuance Alert Program (“CPIAP”) will help ensure you’re in the loop regarding any passport applications for your child. After a parent or legal guardian enrolls in CPIAP, the Department of State will notify them if a passport application is submitted for their child. Note that this service is only useful if someone applies for a new passport. No mechanism exists for the revocation of already issued passports.

Additionally, many children have passports from more than one country. The CPIAP system only flags travel on, or applications for, U.S. passports. Parents may be able to obtain assistance from embassies to prevent the issuance of their nation’s passports. So, parents should be sure to pursue both avenues of prevention.

Watch for International Parental Kidnapping Warning Signs

Abductions are more likely to occur when the abductor has no financial or other ties to the child’s location. Look for warning signs that an abduction may be imminent. These can include changes like leaving or losing employment, selling a home or other property, or liquidating assets. If you identify these changes in a situation that is already high-risk for abduction (such as a high-conflict custody situation and/or a co-parent with strong ties to another country) it may be time to revisit the language of your custody order to protect your child.

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