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1 Lamplighter 1 (1989-1990)

handle is hein.journals/lmplgt1 and id is 1 raw text is: Internaftiona Parentd Midnapping MAJOR JEFFREY S. GUILFORD, JAGC, USA Overview Parental kidnapping has received a surprising degree of congressional at- tention. In addition to creating the Pa- rental Kidnapping Prevention Act of 1980 (28 U.S.C. § 1728A), Congress recently ordered DOD to develop a uniform policy for responding to arrest warrants arising from illegal parental kidnapping perpetrated by members of the Armed Forces. Even more sig- nificantly, last year Congress enacted the International Child Abduction Remedies Act (the Act), Pub. L. 100- 300, 102 Stat. 437 (1988), which im- plements the Hague Convention on the Civil Aspects of International Child Ab- duction (Convention). So far, this mul- tilateral treaty has been ratified by ten of the twenty-nine signatory nations: Australia, Canada (all provinces ex- cept the Northwest Territory), France, Hungary, Luxembourg, Portugal, Spain, Switzerland, the United King- dom, and the United States. This note briefly discusses the Convention, which is now federal law. Legal assistance attorneys need answers to four questions that arise under the Convention. First, who is covered by the protections and pro- cedures that it creates? Second, what types of wrongdoing are addressed? Third, what remedies are available? And, finally, how can the treaty be in- voked? Who Is Covered? The Convention's ultimate beneficia- ries are children who have been wrong- fully abducted or retained or who have been denied the opportunity to visit with a noncustodial spouse. Nevertheless, the protections are invoked by parents or other custodians and not by the chil- dren themselves. Thus, it is fair to say that the Convention protects people (or institutions) who legally exercise cus- tody over children. Custody means the right to make decisions relating to the care of the child, especially the right to determine the child's place of resi- dence. The fundamental prerequisites for invoking the Convention are the le- gal right to custody and the actual ex- ercise of that right (or a showing that custody would have been exercised but for the child's wrongful abduction). Since custody is the key, it is im- portant to note that custody can exist even if the child is not living alone with the custodian. For example, suppose a custodial parent allows a child to live with grandparents for a brief period; in this case, the parent has exercised the right to determine the child's place of residence, and that is the essence of custody under the Convention. The Convention applies to children under the age of sixteen who were habitually resident in a Contracting State (i.e., one that has ratified the Convention) at the time of the wrong- ful abduction or retention. Once a child reaches his or her sixteenth birthday, the Convention no longer applies, and this is so even if the child is in the abducted status at that time. The Con- vention is designed to supplement other relevant laws rather than supersede them, however, and an ag- grieved custodian may seek the return of such a child under the Uniform Child Custody Jurisdiction Act or similar do- mestic law of the jurisdiction where the child is found even when the Con- vention is no longer applicable. The Convention also addresses wrongful denial of access rights, and access is defined as the right to take a child for a limited period of time to a place other than the child's ha- bitual residence. Thus, the Conven- tion seeks to protect visitation rights in addition to custody rights, but the enforcement mechanism for access essentially is hortatory. The primary fo- cus is returning wrongfully abducted or retained children to custodians. What Constitutes a Wrongful Act? An abduction (or removal) or reten- tion of a child is wrongful under the Convention if it is a breach of custody rights attributed to a person, an institution or any oth- (Continued on page 15) The LAMPlighter Says...... 2 LAMP Committee Activities ................. 3 U.S. Citizenship through Descent from Parent(s)... 4 LAMP Committee Aw ards .................. 5 Chief's Column ............ 6 Forms and Checklists: ABA Application for Membership .......... 7-8 Citizen Status Checklists .. 9 Eligibility Requirements for Naturalization ...... 10 SC Taxation and the M ilitary ................. 11 Other Matters ........... 14

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