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International Family Law – A Huge Update

On Behalf of | Aug 26, 2014 | International Family Law

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 Convention countries

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 of America;

(4) a delay or cancellation of 1 or more bilateral working, official, or state visits;

(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.

Michael Manely