In International Family Law we have a new law of the land. On August 8,
President Obama signed the Sean Goldman Law into existence. In Hague Convention
Abduction terms, this is a very big deal.
The law establishes many things. One is an official finding by our federal
government that only one-half of the children abducted from the United
States to Hague Convention Signatory countries are ever returned. Think
about that. We have a pretty clear treaty. Almost 100 other nations have
signed with us. All of us agree to play by those same rules. Still, only
one-half of our children who have been abducted, kidnapped, into those
countries who agreed to abide by those same rules are ever returned to
the United States, their country of Habitual Residence. That is a staggering
finding and one that is sure to be readily understood by our judiciary.
A further 40% of our children are abducted, kidnapped, to countries which
haven't even signed the treaty. You can forget their return. A judge
that allows a child to "visit" a non-signatory country is signing
that child's disappearance papers.
The federal law also finds that the way to stop an abduction is not after
the child is already removed. A far more effective way is to stop the
child from being removed, while the abduction is in progress. Stop them
before they leave. Absolutely. But some things actually do take an act
of Congress to get them done. Now, by Congressional endorsement, our Federal
Government finds that rapid response (and empowerment) by law enforcement
is critical in preventing such abductions. This means that federal and
local law enforcement have authority to act where they may not have before.
More on that later in this piece.
For the first time, this law allows the United States to define "Country
of Non-Compliance." This means that we have a clear category for
a country that is talking the talk but not walking the walk. Some clear
examples that come to mind are Costa Rica, The Bahamas and Brazil. We
can call them out. And we can do much, much more.
The new law gives the Secretary of State has some serious teeth. The Secretary
is empowered to, nay required to identify parties within the foreign government
who are causing the non-compliance. I'm pointing at you, Judge of
the Costa Rican Human Right's Court (poorly named).
And the teeth have some toothiness. Section D provides:
"Description of actions by the Secretary of State in Hague Abduction
Except as provided in subsection (f), the actions by the Secretary of State
referred to in this subsection are-
(1) a demarche (think of this as slapping the face of the foreign diplomat
with a glove);
(2) an official public statement detailing unresolved cases;
(3) a public condemnation (not small potatoes when done by the United States
(4) a delay or cancellation of 1 or more bilateral working, official, or
(5) the withdrawal, limitation, or suspension of United States development
assistance in accordance with section 116 of the Foreign Assistance Act
of 1961 (22 U.S.C. 2151n);
(6) the withdrawal, limitation, or suspension of United States security
assistance in accordance with section 502B of the Foreign Assistance Act
of 1961 (22 U.S.C. 2304);
(7) the withdrawal, limitation, or suspension of assistance to the central
government of a country pursuant to chapter 4 of part II of the Foreign
Assistance Act of 1961 (22 U.S.C. 2346 et seq.; relating to the Economic
Support Fund); and
(8) a formal request to the foreign country concerned to extradite an individual
who is engaged in abduction and who has been formally accused of, charged
with, or convicted of an extraditable offense.
As you may have noticed, each subsection gets more serious right down to
subsection eight where we authorized to bring people responsible for the
abduction back to the United States to stand trial for their crimes. Maybe
I've worked in these international diplomatic circles too long, but
granting this power to our Secretary of State is a sea change. This is
likely to make a real difference in getting our kidnapped children returned.
Now to the prevention measures. Title Three, Section 301 amends Subtitle
C of title IV of the Homeland Security Act of 2002 (6 U.S.C. 231 et seq.),
by adding Section 433 which permits Customs and Border Protection (and
the FBI) from preventing the removal of a child when a parent presents
a court order from a court of competent jurisdiction, which prohibits
the removal of that child from the jurisdiction of the United States.
Our people at the State Department tell us that this is intended to give
Customs the power to enforce our Standing Orders, which prohibit the removal
of children outside of Georgia borders. We will see how that comes into
fruition through regulations. But certainly it beefs up our Superior Court
Judges' authority when faced with this very critical and timely issue.
It creates an absolute lock on our borders. As one of my favorite people
likes to quote me when he observed me in abduction crisis mode, "Nobody
is going to the Bahamas today."
I may have overstated this, but this is a really big deal. This is a sea
change. I think of the scores of children I have recovered from foreign
lands throughout the years but it is those few who are held still in unresolved,
abducted circumstances who keep my sleep troubled and keep my clients
in fitful repose.
This means the world to them, and to me. And in International Family law,
this means a new, frightening day to would-be evil doer parents (and their
foreign government enablers) everywhere.