Assistance in Child Custody Disputes and International Parental Child Abduction

Assistance in Child Custody Disputes and
International Parental Child Abduction

Jurisdictional Limitations and Legal Assistance
Consular Assistance in Non-Hague Convention Cases
Passport Denial in Child Custody Cases
Request for Denial of Passport
The Hague Convention on Child Abduction
Adoption

INTRODUCTION

The Department of State in Washington and U.S. Embassies receive many requests for advice and assistance from parents whose children have been taken from the United States or prevented from returning to the United States by the other parent. The Department and its Foreign Service posts will do whatever they can to assist parents who are involved in child custody disputes; however, in most cases, the amount and type of assistance which can be provided is quite restricted. The Deparment has compiled a helpful website for International Parental Abduction.

Jurisdictional Limitations and Legal Assistance

If the parents cannot work out an amicable settlement of a child custody dispute, the only recourse may be a court action in the country where the child is located. The law of the country in which the child is physically present, even temporarily, is controlling.

Traditionally, the legal doctrine to which most countries have adhered is that the presence of a child within a particular country renders its courts competent to determine who should have custody of the child, regardless of any prior custody judgment issued by a court in another country. As a result, it is not unusual to find conflicting custody decisions in different jurisdictions. Courts in some countries have honored American custody decrees, but on the whole the outcome is unpredictable. The United States Government cannot force a foreign country to honor any American court order regulating custody or visitation rights.

Several States in the United States have entered into arrangements (such as The Hague Convention on Child Abduction)with some foreign countries to provide reciprocal automatic recognition of court child custody and support orders. The numbers of States and countries involved in such arrangements is slowly increasing.

Although U.S. consular officers can provide lists of attorneys in their consular districts, they cannot recommend any particular attorney, offer legal advice, represent U.S. citizens in custody or other hearings before foreign courts, or attempt to influence the outcome of those hearings.
Consular officers have no legal authority to obtain physical custody of children and return them to the United States. They cannot assist a parent in acquiring physical custody of a child illegally or by force or deception. Officers cannot help a parent to leave a foreign country with child whose custody is disputed if the departure would violate a court order or the laws of the foreign country. They can, however, provide a passport for a U.S. citizen child whose custody is disputed if the child appears in person and the consular officers have not received a court order issued by the foreign government barring the child's departure from the country or awarding custody to someone other than the parent accompanying the child.

Consular Assistance in Non-Hague Convention Cases

The Philipippine has not signed the Hague Convention on Child Abduction. If you need assistance from the US Embassy, please provide as much of the following information as you can:

the child's date and place of birth;
the child's passport number, and date and place of issue;
information about the child's departure from the United States and/or destination in the Philippines and;
the names, addresses and telephone numbers of persons with whom the child traveled or is believed to be staying.

Information concerning the provisions which have been made for custody of the child or a copy of any pertinent court decree is helpful. Parents should also include telephone numbers, fax and e-mail where they can be reached.

In child custody controversies in the Philippines, the U.S. Embassy can attempt to locate them, monitor their welfare upon the request of a parent, and furnish a list of local attorneys. Generally, the Philippine Department of Social Welfare and Development has primary responsibility for the welfare of children in custody disputes, including allegations of abuse or neglect. Please note that Philippines privacy laws severely restrict disclosure of the social worker's findings, except with the consent of the person from whom the information was obtained or in connection with legal proceedings or for other lawful purposes.

Passport Denial in Child Custody Cases

A parent who wishes to obtain a passport for a minor child abroad must have physical custody of the child. The child must physically appear for the passport and must have the proper documentation (i.e. evidence of U.S. citizenship of the child, parent's identity and parentage evidence).

In the absence of a local court order granting sole custody of the minor child to one parent (or a court order restraining a parent from removing the child from the country, or a written request for denial from the parent having sole custody), both parents must execute the passport application of a child under 14 years old. Both parents must provide evidence of identity (e.g. photo IDs, passport) and parentage (original of child's birth certificate listing the parent's names, adoption decree, Consular Report of Birth Abroad). The two parent signature requirement is definitive, except under certain limited exigent or special family circumstances. If only one parent will accompany the child to the Embassy to file an application for passport, the applying parent must submit a statement from the non-applying parent consenting to the passport issuance to the child.

The purpose of requiring both parents' consent is to lessen the possibility that a U.S. passport might be used in the course of an international parental abduction

Passport applications of minor's under the age of 14 must be signed by both parents, as indicated above. Once an individual reaches 14 years old, a minor may execute his or her own passport application, but must be accompanied by at least one parent to the embassy. At 14, he or she may solely sign the passport application.

Request for Denial of Passport

When there is controversy concerning the custody of a minor, a passport-issuing office in the United States or a U.S. Embassy or Consulate abroad may deny issuance of passport to the child(ren) if they receive a court order from a court within the country in which passport services are sought. A parent with a U.S. or foreign court custody order may file at the Department of State in Washington, D.C., or the nearest U.S. Embassy or Consulate General, a formal objection to the issuance of a passport to a minor child by submitting a written request together with a certified copy of the custody order or restraining order, contact address and telephone numbers.

The court order must give custody of the child(ren) to the parent who has requested that passport services be denied or must specifically forBI the child(ren)'s departure from the country without the court's permission. The court order must be a complete copy, that is, the copy must contain all of the information on the order, from the venue at the top of the first page or cover to the filing information at the bottom or on the reverse of the last page. Partial copies will not be accepted and no action to deny issuance of a passport can be made on the basis of a partial copy of a court order.

The parent's written request should include the following:

The child's birth certificate showing his/her full name, date and place of birth and both parents' data;

Evidence of the child's U. S. Citizenship, e.g. birth certificate, passport, Consular Report of Birth Abroad (Form DS-2029), Certification of Birth (Form DS-1350), Certificate of Naturalization or Certificate of Citizenship;

Evidence of parent's identity, e.g. passport, driver's license etc.

The Department of State will then enter a notice in its computerized name-check system, notify the custodian parent, and deny issuance of passport should an application for the child be received anywhere in the United States or at any U.S. Embassy or Consulate abroad.
Please note that once a child's name is entered into the passport name-check system, the name will remain in the system until the child turns eighteen years of age, or, a written request from the custodian parent to remove the child's name from the system, whichever comes first. Even in cases where a passport cannot be denied, parents can be notified if passport applications are submitted in the names of their children.

Generally, after a passport has been issued, it cannot be revoked merely because the child has become involved in a custody dispute.

The Hague Convention on Child Abduction

In October 1980, the Hague Conference on Private International Law unanimously adopted the Hague Convention on the Civil Aspects of International Child Abduction, which was signed by the United States on December 23, 1981. The Philippines is not a party to the Convention.
The purpose of this multilateral treaty is to secure the prompt return of children wrongfully removed from or retained in any country which is a party to the Convention. The countries that are parties to the Convention have agreed that, subject to certain limited exceptions and conditions, a child who is removed from or retained in one of the signatory countries shall be promptly returned to the other member country where the child habitually resided before the abduction or wrongful retention. The Convention also provides a means for helping parents to exercise visitation rights abroad. There is a treaty obligation to return an abducted child below the age of 16 if application is made within one year from the date of the wrongful removal or retention. The requesting parent must have been actually exercising custody at the time of the abduction and must not have consented to the removal or retention of the child. There are certain other conditions that must be met as well.

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