Hey Uncle Sam! Maybe It's Time to Stop Condoning Child Abductions to Mexico

• Jurisdiction: United States,Federal
• Citation: Vol. 42 No. 1
• Publication year: 2013

HEY UNCLE SAM! MAYBE IT'S TIME TO STOP CONDONING CHILD ABDUCTIONS TO MEXICO

Antoinette A. Newberry Wood^*

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TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................219

II. THE HAGUE CONVENTION AND MEXICO'S HISTORY OF NONCOMPLIANCE ............................................................................222

A. The Hague Convention on Civil Aspects of International Child Abduction: Purpose and Background.............................222
B. Mexico's History of Noncompliance with the Hague Convention...............................................................................226

1. Mexican Central Authority Performance...........................226
2. Judicial Performance.........................................................228
3. Law Enforcement Performance.........................................229

C. Case Example: Didier Combe—Five Years Later and Still Waiting.....................................................................................230

III. THE UNITED STATES' EFFORTS TO PROMOTE CONVENTION COMPLIANCE AND ACCESSION THROUGHOUT THE WORLD ...........232

A. Recent Efforts to Enforce Convention Compliance..................232

1. Pressure on Brazil.............................................................233
2. Pressure to Accede to the Convention—Japan, India, and Egypt...........................................................................236

B. Mexican Diplomacy Over the Past Decade..............................237
C. Preventive Measures in General and Specific to Mexico.........237

IV. THE NEED FOR A BETTER RESPONSE TO ADDRESS MEXICO'S NONCOMPLIANCE ............................................................................239

A. The Convention Lacks a Mechanism to Address Compliance...............................................................................239
B. A More Aggressive Approach Should Include Potential Sanctions..................................................................................239

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C. More Progressive Preventive Measures...................................242

V. CONCLUSION ...................................................................................245

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I. Introduction

Ana Belem was only going to Arizona for a few days, or at least that is what she told her husband, Carlos Bermudez.¹ She claimed that her cousin had an emergency and needed her assistance.² As the sole provider of the family, Bermudez was unable to take off work to care for their son in his wife's absence. Thus in June of 2008, Belem and their twelve months old son Sage left their North Carolina home.³ Unbeknownst to Bermudez, the two were not coming back. There was no family crisis in Arizona; it was just a cover Belem used to give herself time to illegally relocate their son to Mexico, her native country.⁴

Unfortunately, Bermudez's story is not unique. He is only one of thousands of left-behind parents⁵ worldwide whose child has been taken by the other parent and unlawfully retained in another country. In 2009 alone, the United States' Department of State responded to 1,135 new parental abduction cases, involving 1,621 children.⁶

When children are held in a country that is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction (Convention), the left-behind parent, like Bermudez, is empowered to demand that the foreign country oversee the prompt return of the child.⁷ When applied properly, the Convention is the most useful mechanism assisting left-behind parents as they maneuver through foreign courts.

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However, too often Convention partners fail to comply.⁸ Mexico is one of a handful of countries that the State Department has repeatedly identified as either noncompliant or showing tendencies of noncompliance.⁹

Bermudez knows this reality too well. Since his son was kidnapped, Bermudez has participated in nine separate trials in Mexico, with several still ongoing.¹⁰ Because the Mexican legal system allows a large number of appeals, the enforcement of any decision is often delayed.¹¹ For Bermudez, a family court judge has suspended any new proceedings, claiming he is waiting on documents from the first trial.¹²

Delays in proceedings are only one of the challenges faced by left-behind parents trying to secure the return of their children from Mexico.¹³ The country has become one of the premier abduction destinations for American children. Of the 1,135 new outgoing cases in 2009, 309 of them, including 474 children, involved abductions to Mexico.¹⁴ That is 417% more cases than the second most common abduction destination of children taken from the United States.¹⁵

Recently, the United States strengthened its stance on international child abduction.¹⁶ In 2012, the Senate passed a resolution calling for the safe and immediate return of two abducted children, Noor and Ramsey Bower, from Egypt.¹⁷ Just the year before, Congress introduced House Resolution 1940, which called for legislation that allows presidential action, including economic sanctions, against countries that condone child abduction, like Japan, India, and Egypt.¹⁸ These countries are not Convention partners and

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have not criminalized parental abductions.¹⁹ Additionally, the Senate responded to the media attention that surrounded the David Goldman case in 2008, which involved an American father fighting for the return of his son from Brazil.²⁰ There, the Senate threatened Brazil with trade sanctions that would have subjected the country to a two billion dollar annual loss.²¹

These efforts to force Convention participation and compliance are commendable, but the reality of the matter is that the number of children abducted to Japan, India, and Brazil together make up only a fraction of the number of children abducted to Mexico.²² In 2009, new outgoing cases from these three countries barely reached a quarter of the cases from Mexico.²³ And yet, Mexico has not seen a fraction of the pressure to comply with the Convention as these other countries have. Perhaps more baffling is that the United States, despite having the highest incidence of outgoing child abductions in the world, has taken comparatively fewer protective measures to prevent abductions than other countries, including Mexico.²⁴

This Note sets out to explore factors that contribute to the difficulty in securing the prompt return of an abducted child from Mexico. The Note then critiques and proposes suggestions for the United States' current handling of the problem. Part II of this Note will discuss the background of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Mexico's pattern of noncompliance. Part III will explore the United States' efforts to promote Convention accession and compliance. It will also discuss current restrictions and safeguards in place for children traveling into and out of the country. Part IV of this Note will examine tools the United States can effectively utilize to respond to Mexico's compliance deficiencies. Finally, this Note will conclude by suggesting that the government use a variety of methods to address Mexico's noncompliance, including preemptive measures.

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II. The Hague Convention and Mexico's History of Noncompliance

A. The Hague Convention on Civil Aspects of International Child Abduction: Purpose and Background

Prior to the 1980 Convention, it seemed nearly impossible to locate and secure the return of children abducted to foreign countries.²⁵ Moreover, the frequency of abductions continued to grow as the world saw increased international travel, bi-national marriages, and divorce rates.²⁶ In 1976, various country leaders acknowledged the need to collaboratively address the growing crisis.²⁷ Twenty-three countries participated in drafting the Hague Convention on Civil Aspects of International Child Abduction (Convention), and adopted it in 1980.²⁸ As of December 2012, sixty-nine countries have acceded to the convention.²⁹

The Convention provides a uniform legal framework among countries with different legal systems to facilitate the prompt return of a child wrongfully retained in a foreign country.³⁰ Specifically, it "seeks to 'restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court.' "³¹ At its most basic form, the Hague Convention instructs courts to ask one simple question: what is the child's country of habitual residency?³² For instance, when a child is abducted from the United States to Mexico, the Mexican court must simply decide whether the child was living in the United States.³³ If he was, then he should be promptly returned to the U.S. for any further legal proceedings regarding custody.³⁴

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The Convention drafters believed that the country of habitual residence, often where the child was born and possesses citizenship, has the most interest in resolving the conflict.³⁵ As a result, they designed the Convention in a way that allows the country of habitual residence to arbitrate the merits of the underlying custody dispute.³⁶ Thus, previous custody agreements are honored as the Convention prohibits foreign courts from deciding the merits of custody disputes.³⁷

The Hague Convention does not explicitly define the circumstances that determine habitual residence.³⁸ Instead, "courts interpret the phrase according to its ordinary meaning and analyze habitual residence as a mixed question of fact and law, based on the circumstances of the particular case."³⁹ Generally, when a child is born in the country where his parents have their habitual residence, then that country would be regarded as the child's habitual residence.⁴⁰ Place of birth, however, is not dispositive.⁴¹ Courts should consider the totality of the circumstances arising to and prevailing in the child's living circumstances. This inquiry would include the history of the child's residence, evidence...