International agency aids left-behind parents
Or, what to do when the ex-spouse takes your child overseas?
Estate planning and divorce intersect at a number of points. That’s the reason I follow developments in family law and attend Family Law Section meetings of the Chester County Bar Association. Last week I learned about a resource which I wish I had been aware of on several occasions over the years: the Hague Convention on Civil Aspects of International Child Abduction (Convention).
Foreign ex-spouse. I’m sure most lawyers involved in estate planning have had the experience of working with clients to set up trusts, either Living Trusts or Testamentary Trusts, which provide for children of a prior marriage. Included are situations where the ex-spouse is or was a foreign person.
On some few occasions where the relationship is or could be acrimonious, discussion eventually leads to the question: “What happens if my ex-wife takes a child out of the country without my consent?” Up to now, I never knew what to say, except “See your divorce lawyer”.
State will help. Now I know what to say: contact the U. S. State Department. That’s the first step in triggering the Hague Convention. The Convention was incorporated into U. S. law in 1988. The State Department Office of Children’s Issues is the Central Authority (CA), as it’s called in the Convention, to assist a U. S. parent with custodial rights (the left-behind parent, as he/she is called) to regain those rights.
The first step is to contact the CA. It assists the left-behind parent in making application under the Convention to return the child. It doesn’t act as agent for the left-behind parent or prosecute the application. It offers help in completing the application and obtaining services of a lawyer in the foreign country to represent the left-behind parent in court proceedings there.
Timing is crucial. The process is only available for a child under 16. The application must be filed within one year of the abduction and pursued diligently despite a number of obstacles. Some barriers are political, involving nationalism or plain U. S.-bashing. Others are just bureaucratic, accentuated by foreign language and customs and legal practices much more arcane than here.
But it does work for many left-behind parents. A CA report published in April 2007 touts the statistics: in FY 2006, 260 children were returned from foreign countries; 66% of them, 171, were returned from “Convention partners”, ie, countries which had signed on to the Convention.
Non-compliance. During that same period the CA assisted left-behind parents in filing 290 Convention applications. The report highlights the countries which, while signatories to the Convention, do not fully comply: for the record, they are Honduras, Brazil, Chile, Colombia, Germany, Greece, Mexico, and Poland. The explanations for non-compliance vary, but they echo the barriers referred to above.
The CA offers a lot of help, in advising what to do, dealing with the family trauma involved, locating the child, coping with the financial impact. The CA even offers assistance in responding to an abduction in progress, meaning ex-spouse and child are on the way to the airport.
Things not to do. One of its words of advice: don’t file criminal charges yet. This can interfere with the process. Another: don’t try self-help by engaging in “desperate measures”, called re-abduction. Counterproductive usually and dangerous for the left-behind parent and accomplices.
I think I’ll learn more about the process. What interests me, the role of a Trustee charged with providing funds for “health, education, support in reasonable comfort, and best interests” of a child after the death of a left-behind parent while the child is still in an “abducted” status? Does money smooth the process?
