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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