Vol. 4, No. 2, Pg. 18. Beyond Reach? International Abduction Remedies.

• Author: By H. Wayne Elliott

South Carolina Lawyer

1992.

Vol. 4, No. 2, Pg. 18.

Beyond Reach? International Abduction Remedies

18Beyond Reach? International Abduction Remedies19By H. Wayne ElliottNot many years ago, the average lawyer would have had few occasions in the course of a career to examine issues of international law. But times have changed. International travel and trade have become commonplace; foreign corporations frequently branch out in the United States and American businesses just as frequently have branches abroad.

In the midst of all this international activity, Americans sometimes marry--and, of course, sometimes divorce--non-Americans. Often there are children of these marriages and a court awards custody to one parent.

The legal problems of parental kidnapping within the United States have been somewhat lessened by the UCCJA (see Rosen, The Uniform Child Custody Jurisdiction Act, 3 S.C. Lawyer 36 (Jan./Feb. 1992)), but as the world becomes smaller, parental kidnapping has taken on an international dimension. What if the non-custodial parent improperly removes the child form the United States or refuses to return the child from a visit overseas?

In the past, the only practical advice the American lawyer could give was for the custodial parent to go to the other country, hire a local lawyer and relitigate the custody issue in the foreign court. This approach was not only expensive and time-consuming, it also usually was unsuccessful, because courts are generally more protective of their own nationals than of foreing nationals.

The Hage Convention

The international legal community has helped in developing a solution to the problem. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Convention) provides a simplified procedure in international child custody disputes arising in countries that have ratified the Convention.

Service of process issues are essentially eliminated by the Convention, which is intended to make the courts and administrative agencies of parties to the Convention responsive to requests for assistance from other parties.

The Convention minimizes the usual formalities of filing law suits in forign jurisdictions. Instead, an aggrieved parent can utilize his or her own governmental structure to facilitate the return of a child to legal cutsody.

The Convention is implemented for the United States by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601-11610 (1988), which became effective for abductions occurring after July 1, 1988.

The Convention "establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained" and "provides a sound treaty framework to help resolve the problem of international abduction and retention of...