7 FAM 1700
SAFETY AND PROTECTION OF MINORS
7 FAM 1710
INTERNATIONAL PARENTAL CHILD ABDUCTION
(Office of Origin: CA/OCS)
7 FAM 1711 INTRODUCTION, AUTHORITIES, DEFINITIONS
7 FAM 1711.1 Policy
a. The policy of the United States is that a child who is habitually resident in one country and wrongfully removed from or retained outside of that country shall be promptly returned to that country. Once the child has been returned, any custody dispute can be resolved, if necessary, in the competent court of the country of habitual residence. This policy does not address who should have custody of the child; it addresses where the custody case should be heard (venue).
b. International parental child abduction is a serious problem worldwide. International parental child abduction has received much attention from the Congress, the media, state and federal governments, and the legal and law enforcement communities. Individual cases of international parental child abduction can become highly visible, attracting attention at the highest levels of government and affecting bilateral relationships. You must approach each case carefully and professionally, recognizing the Department’s overarching interest in the protection of minor U.S. citizens/nationals abroad and promoting the principles and compliance with the obligations found in The Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention). It is also important to consider the potential public and diplomatic ramifications of any action a consular officer takes to assist in returning children to their habitual residences.
c. The Department is also responsible for implementation of the Hague Abduction Convention within the United States. The Office of Children’s Issues, acting as U.S. Central Authority (USCA) for the Hague Abduction Convention, cooperates with foreign central authorities to facilitate return of children abducted from a foreign country and believed to be in the United States. Consular authority for carrying out these duties in the United States comes from the Hague Abduction Convention and its implementing legislation, the International Child Abduction Remedies Act, 22 U.S.C. 9001 et. seq. and 22 CFR 94.6.
· Related Topics:
· For a full discussion of how to respond to requests from U.S. citizens/nationals for temporary emergency protection/emergency refuge at post, see 7 FAM 180.
· 7 FAM 1700 includes subchapters on related topics which may also be useful in child abduction matters. These include:
· 7 FAM 1720 Child Abuse or Neglect;
· 7 FAM 1730 Child Exploitation. This includes a discussion of the Protect Act and reporting requirements;
· 7 FAM 1740 Forced Marriage of Minors;
· 7 FAM 1750 International Child Support Enforcement;
· 7 FAM 1760 Runaways, Abandoned Children and Unaccompanied Minors;
· 7 FAM 1770 Return of Children; and
· 7 FAM 1780 Behavior Modification Facilities.
7 FAM 1711.2 Authorities
a. Authority to provide consular services in international parental child abduction cases derives from a variety of treaties, laws, regulations, and Executive Orders.
b. Treaties: You should be aware of which treaties apply in the host country. See Treaties in Force on the Department of State Internet site.
(1) The Vienna Convention on Consular Relations (VCCR) provides the basic authority for consular protection of nationals. The United States and over 150 other nations are parties to the VCCR, which is among the basic sources of international legal authority for the consular officer’s engagement on behalf of U.S. citizen/national children abroad. If the VCCR is in force in the host country, you should be familiar with the provisions of the treaty related to consular protection of nationals. See Treaties in Force on the Department of State Internet home page to confirm whether or not the host country is a party to the VCCR. While consular officers perform functions relating to the welfare of all U.S. citizens/nationals, the VCCR accords special recognition to the protection of minors because of their vulnerability. You have a special obligation to be proactive and creative when dealing with children’s issues in general, and with abduction and custody issues in particular. Your authority under the VCCR is particularly important in international parental child abduction cases to countries not party to the Hague Abduction Convention.
Article 5 of the VCCR provides that consular functions include:
“(h) Safeguarding within the limits imposed by the laws and regulations of the receiving State [host country], the interests of minors and other persons lacking full capacity who are nationals of the sending State [the United States], particularly where any guardianship or trusteeship is required with respect to such persons”
· The VCCR addresses not only your authority as consular officers, but also the responsibilities of the host country. Article 37 of the VCCR concerns host country responsibilities when it is apparent that a minor may be subject to appointment of a guardian or trustee.
Article 37 VCCR provides: …
“If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty:
(b) to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments.”
· Even if the VCCR is not in force between the United States and the receiving country, consular officers would still be able to provide welfare services under customary international law.
· Bilateral Consular Conventions: See the CA/OCS Internet bilateral consular conventions section. Check Treaties in Force on the Department of State Internet page to confirm the status of a particular treaty.
(2) The Hague Convention on the Civil Aspects of International Child Abduction: This treaty entered into force for the United States in 1988. The Hague Abduction Convention is a useful tool in resolving those parental abduction cases in treaty partner countries and provides a conceptual framework for addressing non-Hague cases as well. In general, the purpose of the Hague Abduction Convention is to secure the prompt return of children wrongfully removed to or retained in one contracting state to the contracting state in which the child is habitually resident.
c. U.S. Laws, Regulations And Executive Orders: Several laws have been enacted to combat international parental child abduction in the United States in addition to many more relevant state laws. While these laws are often enforceable only within the United States, they may have impact on the status of a child and a taking parent outside the United States.
· 22 U.S.C. 1731 Protection of Naturalized Citizens
· 22 U.S.C. 3904(1) Functions of Service
· 22 CFR 71.1 Protection of Americans Abroad
(2) Uniform Laws on Child Custody:
What are Uniform Laws?
The phrase "Uniform Laws" can be misleading. Upon approval by the Uniform Law Commission (ULC) a Uniform Law is not law anywhere in the United States. The Uniform Law Commission drafts model laws with the intent of proposing their adoption by state legislatures. Many states adopt the model law and others pass an amended version of the law while others may not adopt it at all. The purpose of creating model laws is to increase consistency in the law among the states.
· The Uniform Child Custody Jurisdiction Act (UCCJA) facilitates the mutual recognition and adjudication of child custody determinations by state courts. NCCUSL proposed the UCCJA in 1968 and all 50 States have adopted the UCCJA in some form. See also Uniform Matrimonial and Family Laws Locator.
· The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) enhances the UCCJA by granting exclusive continuing jurisdiction to the state making the original custody determination (child’s “home state”), clarifying the limits of emergency jurisdiction, and providing for direct enforcement of custody orders as well as Hague Abduction Convention return orders. The UCCJEA also provides for recognition of custody orders issued by courts outside the United States. To date, 49 states, the District of Columbia, and the U.S. Virgin Islands have adopted the UCCJEA model.
NOTE: As of July 25, 2011 the only U.S. state that has not adopted the UCCJEA is Massachusetts, although a bill to enact it is presently pending in its Legislature. Puerto Rico has also not adopted the Act, although a bill to enact it is pending in its Legislature.
(3) U.S. Federal Law and Parental Child Abduction International Parental Kidnapping Crime Act (IPKCA), (18 U.S.C. 1204) makes it a felony to remove or attempt to remove a child younger than 16 from the United States, or to retain the child outside the United States, with the intent to obstruct the lawful exercise of parental rights.
· National Child Search Assistance Act of 1990 (NCSA) 34 U.S.C. 41307 (Reporting Requirement) and 34 U.S.C. 41308 (State Requirements): The NCSA requires local, state and federal law enforcement agencies, when informed of an abduction of a child, to immediately enter the appropriate data into the National Crime Information Center (NCIC) database without requiring a waiting period.
· Parental Kidnapping Prevention Act (PKPA) (1980), 18 U.S.C. 1073, authorizes the issuance of Federal Fugitive Felony Warrants (i.e.: Unlawful Flight to Avoid Prosecution (UFAP)) in parental kidnapping cases when the abductor has fled the state or the United States to avoid prosecution. It also authorizes the use of the Federal Parent Locator Service of the Department of Health and Human Services to locate abducted children and abducting parents.
· International Child Abduction Remedies Act (ICARA) 22 U.S.C. 9001 et seq. implements the Hague Abduction Convention in the United States in accordance with federal regulations found at 22 CFR 94, International Child Abduction.
· The Reid Amendment (“Two Parent Signature Law”) Section 236 of The Admiral James W. Nance And Meg Donovan Foreign Relations Authorization Act, Public Law 106-113, 113 STAT. 1501A-420 (22 U.S.C. 213 and 22 U.S.C. 213 Notes). This law originally required that both parents or legal guardians execute the U.S. passport application for a child under the age of 14. 22 CFR 51.28(a) now requires two parent consent for minors under the age of 16. There are, however, exceptions to this requirement. See 7 FAM 1300 Passport Services, specifically 7 FAM 1350 Passports for Minors.
(4) Delegations of Authority:
· Delegation of Authority No. 172: Delegation of Authority with Respect to Performance of the Functions of Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction. (From the Secretary to CA)
· Delegation of Authority No. 173: Delegation to the Director of the Office of Citizens Consular Services - Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. (From CA to CA/OCS)
(5) Memorandum of Understanding: U.S. Department of Health and Human Services, Office of Child Support Enforcement and U.S. Department of State, Bureau of Consular Affairs – Requests for Information From the Federal Parent Locator Service in International Child Abduction Cases for children abducted to the United States (incoming cases) (November 2011).
7 FAM 1711.3 Definitions
The following definitions may be useful in implementing the procedures in this subchapter:
Child: In general, this means an unmarried person under the age of 18. For purposes of providing consular services in the context of international parental child abduction, other factors may affect a child’s status.
(1) Hague Abduction Convention: The remedies created by the Hague Abduction Convention are only available with respect to children under the age of 16.
(2) Non-Hague Convention international parental abduction or access cases: A child is an individual who has not attained the age of 16.
(3) The Reid Amendment (“Two Parent Signature Law”): Section 236 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Public Law 106-113, 113 STAT. 1501A-420 (22 U.S.C. 213 and 22 U.S.C. 213 Notes). This law requires that both parents or legal guardians execute the U.S. passport application for a child under the age of 14, but the Department applies it to children under the age of 16 in accordance with 22 CFR 51.28. There are, however, exceptions to this requirement (see 7 FAM 1350).
(4) Foreign Military Service: Some countries treat a child serving in the armed forces of that country, whether enlistee or inductee, as an adult. In general, the U.S. does not consider such persons to be adults. We must, however, recognize it as a fact, and as a possible hindrance to providing certain consular services to or on behalf of a child. See also the Optional Protocol Children in Armed Conflict to the U.N. Convention on the Rights of the Child. The United States is a party to this optional protocol, but is not party to the U.N. Convention on the Rights of the Child. See Treaties in Force on the Department of State Internet page.
(5) Marriage: Although a married person is generally considered an adult, regardless of age, the Department is aware of cases involving abducted children whose taking parents have arranged marriages for them in the foreign country while the children are still very young. In such circumstances, we generally treat them as children for the purposes of this chapter. See 7 FAM 1740 Forced Marriage of Minors.
Children’s Passport Issuance Alert Program (CPIAP): Through the CPIAP program, a parent or legal guardian (other than a parent whose parental rights have been terminated by a court order) may request that his or her minor child's or ward’s name be placed in the Department's Consular Lookout and Support System (CLASS), so that the parent or legal guardian will be notified if a passport application is received for the child. Additionally, any child who is reported to the Department as an alleged victim of international parental child abduction must be entered into CLASS via CPIAP. The hold remains in place until the child reaches age 18. (22 CFR (c)). See 7 FAM 1300 Appendix Q. The hold can be overcome if a parent presents evidence that justifies issuance of a passport without the other parent’s consent.
Parent: For the purposes of this chapter, the term “parent” refers to a biological parent, adoptive parent, stepparent, foster parent or other person acting “in loco parentis” or any person or competent authority who has legal right of custody to a child.
(1) Left Behind Parent (LBP): The person fitting the definition of “Parent” who is not able to exercise custodial rights (real or alleged) as a result of the other parent’s alleged wrongful removal or retention of the child outside the child’s habitual residence.
NOTE: Under the Hague Convention, an institution, such as a child welfare authority, may be the applicant for return of a child.
(2) Alleged Taking Parent (TP): The person fitting the definition of “Parent” who has wrongfully removed/retained, or plans to remove, a child from the country of habitual residence resulting in the interference with the other parent’s rights of custody. This definition also applies to a parent who may have taken the child with the other parent’s consent, but who then retains the child outside his/her habitual residence in violation of the other parent’s rights of custody (“wrongful retention”).
Central Authority: Each state party to the Hague Abduction Convention designates an entity to be responsible for coordinating the implementation of the Hague Abduction Convention in that country and to serve as the primary point of contact for communication with foreign Central Authorities. The Department of State is the U.S. Central Authority. The Office of Children’s Issues in the Consular Affairs Bureau (CA/OCS/CI) has been designated as the action office, and performs the functions required of the Central Authority under the Hague Abduction Convention.
Hague Abduction Convention: For the purposes of this chapter, this term, or simply the word “Convention”, is shorthand for the Hague Convention on the Civil Aspects of International Child Abduction.
IPCA Database: The International Parental Child Abduction computer application (IPCA) is the database that the Office of Children’s Issues (CA/OCS/CI) uses to record and monitor child abduction, access, and prevention cases. Posts currently have read-only access to IPCA through the Consular Consolidated Database (CCD).
National Center for Missing and Exploited Children: NCMEC is a private, nonprofit 501(c)(3) organization that provides services nationwide for families and professionals in the protection of abducted, endangered, and sexually exploited children. NCMEC is an important resource to children and families, providing a wide range of services including:
· Producing and distributing missing children posters. NCMEC has agreed to produce posters for those children that CA/OCS/CI has not been able to locate through its own searches. Contact the appropriate CA/OCS/CI country officer if you think a missing children poster should be created for a particular case;
· Providing a Web site with valuable resources for families, law enforcement, attorneys, and other child welfare professions;
· Counseling parents and referring the LBP to other mental health services;
· Overseeing and distributing funds to LBPs for travel to participate in hearings abroad or to arrange return of their children, with funding from the U.S. Department of Justice Office for Victims of Crime;.
· Assisting with identifying and retaining counsel for parents; and.
· Assisting parents with interactions with local and federal law enforcement officers.
7 FAM 1712 Consular ROLES AND responsibilities in child abduction matters
7 FAM 1712.1 Role of the Bureau of Consular Affairs (CA)
a. The Office of Children’s Issues, Directorate of Overseas Citizens Services, Bureau of Consular Affairs (CA/OCS/CI) is the U.S. Central Authority for the Hague Abduction Convention. CA/OCS/CI also handles international parental child abduction cases to and from non-Convention countries. The Office’s duties are summarized at 1 FAM 255.1-2. CA/OCS/CI works to strengthen treaty compliance in the United States and abroad and to expand participation in the Hague Abduction Convention. CA/OCS/CI provides information to left-behind parents on their options and in non-Hague Convention countries collaborates with consular officers on strategies to return abducted children to the United States. CA/OCS/CI also administers the Children’s Passport Issuance Alert Program (see 7 FAM 1300 Appendix Q.
b. On May 25, 2010, the Secretary of State appointed a Special Advisor for Children’s Issues to address intercountry adoption and international parental child abduction. The Special Adviser engages with foreign government officials to support the Department’s policy goals on international parental child abduction and international adoption.
c. CA/OCS/CI chairs the Inter-Agency Coordinating Group authorized by 42 U.S.C. 9010. The Inter-Agency Coordinating Group monitors the operation of the Convention and provides advice on its implementation to the United States Central Authority and other Federal agencies.
d. The Office of Legal Affairs, Directorate of Overseas Citizens Services Bureau of Consular Affairs (CA/OCS/L) (ASK-OCS-L@state.gov), provides law and policy guidance on international parental child abduction related matters to CA/OCS/CI, CA/OCS/ACS and posts abroad. CA/OCS/L provides treaty interpretation, in coordination with the Office of the Legal Adviser for Consular Affairs (L/CA). CA/OCS/L also provides guidance on law and policy for child abuse, neglect, exploitation and international child support enforcement and two parent consent issues regarding passports for minors.
e. The Office of American Citizen Services and Crisis Management, Directorate of Overseas Citizens Services, Bureau of Consular Affairs (CA/OCS/ACS) is responsible for American Citizen Services (ACS) functions attendant to international parental child abduction cases such as repatriation, child abuse and neglect, and refuge, as well as custody cases related to children who are not involved in international parental child abduction.
7 FAM 1712.2 Role of Posts Abroad
a. It is both important and instructive to understand that the role of consular officers in international parental child abduction cases when the child is located abroad is drawn from the broader function of protecting U.S. citizens abroad, with additional emphasis on the protection of a child. Your goal in most abduction cases is facilitating the return of the child through lawful means to his or her country of habitual residence. Even in those countries that do not have a treaty relationship with the United States under the Hague Abduction Convention, your actions should be in keeping with the principles behind the Convention.
b. When the child is allegedly abducted to the United States, the role of the consular officer is drawn either: 1) from the Hague Abduction Convention, if the child was removed from a country that is a partner with the United States under the Hague Abduction Convention; or 2) from CA’s policy approving the use of resources to assist in cases where the child is removed from a country with which the United States is not/not a partner under the Hague Abduction Convention. Consular officers may exchange information as necessary and appropriate with the relevant foreign Central authority, foreign governments, or INTERPOL, in coordination with CA/OCS/CI.
c. The Department’s objective to return children to their country of habitual residence derives from the basic premise of the Hague Abduction Convention, which states the appropriate venue for a custody determination is the court in the child’s habitual residence. The consular officer’s role is to facilitate communication with the alleged taking parent, the alleged taking parent’s family, and the host government. The consular officer’s role is not to insert him/herself in the family dynamic by making judgments about how the parent and child should interact, in the absence of indications of danger to the child.
d. The basic principle of international law--that a person residing or traveling abroad is subject to the laws of the host country and the jurisdiction of its courts--applies to children as well as to adults. The laws of the country where the child is present physically, even though perhaps temporarily, are normally controlling. As a consular officer you may not violate, or assist others in violating, the host country’s law. Nonetheless, it is usually possible for you to provide significant assistance to parents and others seeking the lawful return of an abducted or wrongfully retained child to the United States. To do so effectively and within the law, you should:
(1) Learn and understand the implications of local law in abduction, wrongful retention, custody, and access matters;
(2) Develop contacts with resource personnel in the host country who can provide direct assistance, suggest guidance, or provide detailed information in specific cases;
(3) Be able to outline the steps in the relevant local judicial, immigration and social welfare processes for parents; and
(4) If the host country has a treaty relationship with the United States under the Hague Abduction Convention, be familiar with the provisions of the Convention, understand the process by which the host government fulfills its obligations under the Convention, and be aware of any problems with host government compliance with the Convention.
NOTE: Always keep in mind, and stress whenever appropriate, that an abducted or wrongfully retained child may be present in the foreign country as the result of an act that could be a criminal offense in the United States.
e. Consular officers have no legal authority to obtain physical custody of children or to return them to requesting parents. See 7 FAM 1772. Where a foreign court has ordered a child returned to the United States under the Hague Abduction Convention, consular officers should monitor the child’s welfare and assist with return arrangements if necessary. Consular officers may issue new passports without two parent signature based upon the court return order, with specific guidance from CA/OCS/L (Ask-OCS-L@state.gov). See 7 FAM 1350 Passports for Minors and 22 CFR 51.28. In addition, you may be asked to assist in obtaining a significant benefit parole visa for the taking or left behind parent, in coordination with CA/OCS/CI, to permit that parent’s participation in Hague Abduction Convention proceedings in the United States. Consular officers are encouraged to use their discretion and knowledge of the sensitivities of the case to issue a visa when legal and appropriate. Awareness of IPCA should generate consideration of assessing 214(b) in the proper context. See 9 FAM 201.1 et. seq. For detailed instructions on return of a child to the United States, especially those abducted in non-Hague countries, see 7 FAM 1770 Return of Children. 7 FAM 180 provides guidance on the granting of temporary emergency protection.
f. Consular officers may not offer legal advice to parents or others. However, you may (and should) provide a range of information and procedural guidance, and direct parents to those who can provide assistance and more specific advice, including legal counsel. Consular officers should also have country specific information about international parental child abduction available for parents. This information is posted on the CA Internet Child Abduction page – child abduction country information.
g. Lists of Attorneys: See 7 FAM 900 for general guidance on development of triennial lists of attorneys. Note: In many Hague Abduction Convention countries, the Central Authority provides legal assistance for the Hague proceedings. It is therefore important to refer parents to CA/OCS/CI and notify CA/OCS/CI as soon as possible if the post is the first to learn of an abduction case.
h. Conversations with parents in international parental child abduction cases can be highly emotional and frustrating for parents. Whether the parent contacts CA/OCS/CI or a post initially, consular officers must clearly explain what the post and the Department can and cannot do to assist in returning a child to the United States. See the CA Internet Abduction page for more information and resources. CA/OCS/CI and CA/OCS/L stand ready to assist posts to ensure discussions with parents productive and informative.
i. Posts must maintain contacts with foreign authorities responsible for international parental child abduction matters. In countries party to the Hague Abduction Convention, this would be the host country’s central authority. In countries not party to the Hague Abduction Convention or countries with which the United States does not have a treaty relationship, these contacts may be in the Ministry of Foreign Affairs, Ministry of Justice or other appropriate entity. These contacts facilitate cooperation in abduction cases. Where countries have not yet joined the Convention, consular officers can play an important part in reporting on existing laws and infrastructure to facilitate the Department’s country-specific strategy for working bilaterally to encourage accession to this important and effective Convention. CA/OCS/CI is specifically charged with central authority to central authority communication, and welcomes post involvement in dialogues with the host country provided they do not exclude CA/OCS/CI.
j. When necessary and appropriate, help convey U.S. Government interest in cases by attending or monitoring custody or related court proceedings for both Hague and non-Hague Convention cases when a U.S. citizen child is involved. If a Hague Abduction Convention return application is pending in a host country, custody proceedings should be stayed until the Hague petition has been judicially reviewed and it is clear that the child will not be returning to the United States under the Convention. CA/OCS/CI routinely notifies the foreign Central Authority when a new application has been filed and requests notification to the court in order to stay any active custody proceedings. If a Hague Abduction Convention application is pending in the United States, and CA/OCS/CI learns of a custody proceeding in a U.S. state court, CA/OCS/CI will send a letter to the court reminding the court of its obligations under Article 16 of the Hague Abduction Convention.
k. Encourage Dialogue: Consular officers at post and in CA/OCS/CI should encourage communication between the parents when possible to encourage a voluntary return of a child. CA/OCS/CI can provide guidance on how to facilitate voluntary return of a child. While Article 7 of the Hague Abduction Convention authorizes the central authority to take all appropriate measures to encourage a voluntary resolution in international parental child abduction cases, it is important to remember that consular officers are not professional social workers, counselors, mediators or family law experts. Consular officers may not facilitate efforts by the left behind parent to physically recover the child through surreptitious means, or in violation of local law. Consular officers may suggest or arrange a neutral meeting place where parents involved in a custody or abduction-related dispute can attempt to resolve their differences. Be careful to maintain impartiality in arranging meetings and facilitating communications, regardless of the perceived relative merits of the case. Avoid influencing the decisions or actions of either parent.
l. Questionable Family Messages and Letters: Consular officers are often asked to pass a message to the child from the left behind parent and should generally refrain from judging whether or not it is a good message. Consular officers should never deliver a message without reading it. Additionally, where a consular officer, based on objective facts and conditions, and subject to the concurrence by the supervising consular officer, believes that a statement in the message could put the U.S. citizen child in harm, for example by triggering ill treatment or a breakdown in consular access, the officer must consult CA/OCS/CI and CA/OCS/L for guidance.
m. Professional Mediation:
(1) Mediation of international family disputes is a relatively new field that is largely unregulated in some countries, like the United States, but in which there is much interest. Mediation may be very effective for facilitating access to an abducted child. If a parent or government official expresses an interest in mediating after an international parental child abduction, you can refer them to the Bureau of Consular Affairs' web page or check with the CA/OCS/CI country officer to see if s/he knows of any resources that may be available.
Note: CA/OCS/CI and CA/OCS/L (ASK-OCS-L@state.gov) are members of a working group of the Hague Conference on Private International Law regarding mediation and international parental child abduction. Information about the progress of the working group is available on the Hague Conference Web page.
(2) Provide information on any available mediation resources or organizations that parents might use to help resolve their differences. This could be prepared as a resource on post’s home page similar to the list of attorneys and list of doctors provided it includes the required disclaimer. Posts should also discuss with CA/OCS/CI options for mediation in the United States.
DISCLAIMER: The U.S. Embassy (Consulate) (City, Country) assumes no responsibility or liability for the professional ability or reputation of, or the quality of services provided by, the following persons or firms. Inclusion on this list is in no way an endorsement by the Department of State or the U.S. Embassy/Consulate. Names are listed alphabetically, and the order in which they appear has no other significance. The information in the list on professional credentials, areas of expertise and language ability are provided directly by the mediators; the Embassy is not in a position to confirm such information. You may receive additional information about the individuals on the list by contacting the local licensing authorities.
n. Force and Deception: Consular officers and staff may not assist a parent to gain physical custody of a child by force or deception or otherwise in violation of a host country’s law. You should:
(1) Inform a parent contemplating such action of the dangers involved, including the possibility of criminal prosecution and/or civil consequences such as those available under the Hague Abduction Convention; and
(2) Explain that obtaining the services of professional “recovery experts” might involve risk to the child and others, including the left-behind parent.
Note: Normally, you are under no obligation to report a parent’s possible plans to gain physical custody of a child in violation of host country laws to either local authorities or the other parent. However, if a parent has threatened violence or appears to pose a threat to the safety of the child or the other parent, you should inform the other parent or local authorities.. You should also inform the CA/OCS/CI case officer for the relevant country. Threats to consular officers must be reported to the regional security officer.
o. Working with Parents: Interacting with parents in an international parental child abduction can be challenging and complex, and requires considerable tact, diplomacy and strong interpersonal skills.
(1) Custody disputes are often bitter and international parental child abduction is often an extreme response in a custody dispute. The parents often accuse each other of behavior harmful to the child or to the other parent. They may allege, for example, that the other parent is an alcoholic, drug addict, criminal, sexual deviate, or child abuser.
(2) You should never disregard such statements, or any claims that the child may suffer from serious diseases or health conditions, but you should always be mindful that mutual recriminations may be rooted in a bitter parental dispute and may not be supported by the facts. See 7 FAM 1720 – Child Abuse and Neglect.
(3) Be mindful of each parent’s citizenship status and be cautious about potential privacy violation. 7 FAM 060 provides guidance about the Privacy Act. CA/OCS/L (Ask-OCS-L@state.gov) is available to provide posts with case specific privacy guidance. Posts must protect a U.S. citizen or LPR’s or LPR parent’s personally identifiable information, address and contact information.
p. General Guidelines:
(1) Review each active case thoroughly to ensure you are familiar and current with all the relevant facts.
(2) When speaking to either parent, personalize the case by using the child's name as much as possible.
(3) Pull the case up in the IPCA Database immediately so you can refer to people by name, as well as take detailed notes of each conversation. Posts can always ask CI to provide an updated summary of the case. Posts currently have read-only access through the Consular Consolidated Database (CCD).
(4) Be polite and try very hard not to seem rushed. Bring your most compassionate and professional demeanor to bear.
(5) Try to treat each parent as if this is the only case you have to work on. If you are in the middle of an urgent task, ask if you can call back or meet again when you have time to give the parent your full attention.
(6) Return telephone calls and e-mails promptly.
(7) If you sense that the parent needs more emotional support than you should or are qualified to provide, explain that there may be resources available where she/he lives to share expertise and provide support. Among them are:
(a) State Victims of Crime programs: CA/OCS can assist in locating local points of contact. (see 7 FAM 1900); and
(b) NCMEC: Particularly when the LBP is calling you from the United States, you may refer them to the NCMEC counseling services at 703-837-6304.
(8) Avoid inaccurate use of the term “child custody case.” You should always refer to the case as “your child’s case" using the child's name.
(9) Do not provide your personal contact information or details about your own life. Be clear about the limits of your role and authority. Posts can also ask CA/OCS/CI for support as needed.
(10) Avoid using acronyms as much as possible. Not only can they be confusing to the listener, but also they can be misinterpreted.
Note: The parent will form his or her impression of you -- and the Department -- based on his or her initial contact with you, often over the telephone. Even though you may be under significant pressure from other work, interacting with the parent with courtesy and compassion will help you build a relationship of trust, which will aid you as you work with him/her.
7 FAM 1712.3 Child Abduction and Criminal Law
Consular officers should not speculate or engage in dialogue with the host country officials, parents or their representatives regarding child abduction and extradition, mutual legal assistance treaties or prosecution in general absent specific guidance from the Department (CA/OCS/L and the Office of the Legal Adviser for Law Enforcement and Intelligence (L/LEI), and/or L/CA. Parental child abduction is a felony in every U.S. state and a federal crime under the International Parental Kidnapping Act, 18 U.S.C. 1204, (IPKA). Nevertheless, a perpetrator must be charged with a crime and a warrant issued before any action by U.S. law enforcement will be taken against him/her. Therefore, absent a conviction, you should not say, “the taking parent is a criminal”, since there has been no criminal finding by a court of competent jurisdiction. Rather, you may say, parental child abduction is a crime in the United States, citing 18 U.S.C. 1204 and/or state felony laws. See also Using the Criminal Justice System on the Consular Affairs Internet page and 7 FAM 1647 Extradition and Parental Child Abduction.
7 FAM 1713 The Hague CHILD Abduction Convention
7 FAM 1713.1 Background
Twenty-three nations, meeting at the Hague Conference on Private International Law in 1976, agreed to negotiate a treaty aimed at deterring international child abduction. Between 1976 and 1980, the United States was a major force in preparing and negotiating the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Convention came into force for the United States on July 1, 1988, and applies to abductions or wrongful retentions that occurred on or after that date, or to requests for access to a child filed after that date. See the Hague Conference Child Abduction Home Page on the Internet.
7 FAM 1713.2 Purpose
Countries party to the Convention have agreed (subject to certain limited exceptions) that a child wrongfully removed to or retained in one country shall promptly be returned to the other member country where the child was habitually resident before the abduction or wrongful retention. The Convention also calls on partner countries to facilitate the exercise of visitation (“access”) rights between party countries.
7 FAM 1713.3 General Provisions
7 FAM 1713.3-1 Return Of Child
a. The Office of Children’s Issues (CA/OCS/CI) is responsible for forwarding outgoing return and access applications to the relevant foreign Central Authority. CA/OCS/CI screens outgoing applications only for the most basic criteria before accepting and submitting to the foreign central authority an applicant’s request under The Hague Abduction Convention for return of or access to an abducted or wrongfully retained child. Under the premise that the Department should not decline to provide requested assistance to U.S. citizens and should instead defer to the foreign central authority to accept or reject a Convention application, the U.S. Central Authority (USCA) will forward petitions that involve:
(1) A child under the age of 16;
(2) Abducted from or retained outside of the United States;
(3) In a country that ratified or acceded to the Convention prior to the date of the alleged abduction or the beginning of the retention and, for an acceding state, the United States accepted the accession and such acceptance took effect before the application was submitted to the USCA; and
(4) A person or competent authority gives a reasonable assertion that he/she/it has custodial rights.
b. CA/OCS/CI does not forward “in utero” cases, which are defined as cases in which the child was in utero at the time of the alleged wrongful removal or beginning of the alleged unlawful retention.
c. Some other central authorities apply higher levels of discretion in reviewing Hague petitions to determine whether or not they meet the criteria of the Convention sufficiently to warrant invocation of the treaty. Some of our Convention partners have complained that the USCA too often forwards petitions that are, in their view, clearly insufficient, thus wasting valuable time and resources of our foreign counterparts.
d. Outgoing country officers will refer to the outgoing Branch and Division Chiefs any petition that fits into the following categories. In concurrence with CA/OCS/CI management and CA/OCS/L attorney advisors, consulting with L/CA as appropriate, cases falling into one of the following categories may be considered for possible rejection under Article 27:
(1) An outgoing application that does not meet the requirements for completion under Article 8 of the Convention, where the applicant does not cure the deficiencies within six months of submitting the application to the USCA after being notified of such deficiencies by the USCA, unless the receiving foreign central authority has agreed to accept the case with pending documentation; or
(2) An outgoing application where the child who is the subject of the application was previously the subject of an incoming Hague case before a court in the United States, and a court in the United States has ruled on the question of the child’s habitual residence during an action filed pursuant to the Hague Abduction Convention.
(3) In concurrence with the OCS Managing Director, the CA/OCS/L Director, CA/OCS/CI management, and L/CA, any other case that raises significant policy concerns may be considered for possible rejection under Article 27. This criterion should be used sparingly, and only in the most egregious cases.
See the Hague Conference on Private International Law acceptance of accessions page for the list of countries with which the United States has a treaty relationship under the Hague Abduction Convention.
b. Under the Hague Abduction Convention the competent authority in a member nation must return an abducted or wrongfully retained child if:
(1) The child is below the age of 16;
(2) The child was “habitually resident” in a Convention country prior to the wrongful removal or retention;
(3) The applicant had and was exercising rights of custody under the law of the child’s country of habitual residence at the time of the wrongful removal or retention, or would have been exercising those rights but for the removal or retention; and
FYI: After one year, a court or other competent authority is still obligated to order the child returned unless the person resisting return successfully demonstrates that the child is settled in the new environment.
c. There are, however, several important exceptions to the requirement to return a child under the Convention. See below at 7 FAM 1713.3-3.
7 FAM 1713.3-2 The Hague Convention Is Nationality-Neutral
If a child habitually resident in one Convention country is abducted to or wrongfully retained in another, the Convention’s return and other remedies are available regardless of the child’s nationality or the nationality of either parent.
(1) For example, the United States is obligated to return to Italy a U.S. citizen child habitually resident in Italy, even if the taking parent is a U.S. citizen and the applying LBP is a citizen of Russia (which does not have a treaty relationship with the United States under the Convention).
(2) The Convention also applies in cases where the child is not a U.S. citizen but was habitually resident in the United States prior to an abduction or wrongful retention.
7 FAM 1713.3-3 Reasons a Return Application May Be Denied
A court or other competent authority may (but is not required to) refuse to order a child returned under the Convention if it determines that one or more of the following defenses to an application for return apply:
(1) There is a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation;
(2) The left-behind parent consented to or acquiesced in the child’s removal or retention;
(3) The child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child's views;
(4) The application was filed more than one year after the abduction or wrongful retention AND the person resisting return demonstrates that the child is well settled in the new environment; and/or
(5) The return of the child would violate the fundamental principles of human rights and freedoms of the country where the child is located.
7 FAM 1713.3-4 Access
a. Article 21 of the Hague Abduction Convention calls on states party to make arrangements for organizing or securing the effective exercise of rights of access, and to “remove all obstacles” to the exercise of access rights. The Convention does not specify how this is to be achieved. See 7 FAM 1713.4.
Note: Parents seeking ACCESS under the Convention, as opposed to RETURN of the child, may invoke the Convention even if the child’s removal predates the Convention’s entry into force between the U.S. and the host country.
b. Before accepting a Hague application and opening a Hague access case in our IPCA database, CA/OCS/CI country desk officers must confirm that all of the following requirements have been met:
(1) The case involves a child under the age of 16;
(2) The requesting party has proof of a parental relationship and/or access rights to the child. Such proof may include but is not limited to:
(a) The applicant's name listed on the child's birth certificate; or
(b) An order of a competent court granting the applicant access and/or custodial rights to the child; or
(c) An order of a competent court acknowledging the paternity or maternity of the applicant.
(3) The requesting party has a U.S. or foreign court order granting him or her access rights to the child or submits a detailed outline of the type of access he or she would like to exercise in the foreign country and/or the United States;
(4) The requesting party is not residing in the same country as the child; and
(5) The child is residing in a country that is a Hague Convention partner with the country where the requesting party is residing.
c. An applicant does not have to allege that a wrongful removal or retention occurred in order to apply for access under the Convention. If the requesting party is not residing in the United States, the CA/OCS/CI country desk officer should provide information on how to file the Hague application with the appropriate Central Authority, open a case in our IPCA database, and monitor the case proceedings.
d. If an access request does not meet the above requirements, and the child and/or parent is a U.S. citizen, the CA/OCS/CI country desk officer should refer the parent to the appropriate U.S. embassy or consulate, which would provide the same support given to any U.S. citizen involved in legal proceedings overseas. The CA/OCS/CI country desk officer should notify the American Citizens Services (ACS) Unit Chief in the U.S. Embassy or Consulate and the appropriate CA/OCS/ACS desk officer about the case. If the child and/or the parent are not U.S. citizens, the CA/OCS/CI country desk officer should refer the parent to the appropriate foreign embassy or consulate.
7 FAM 1713.3-5 Central Authority
a. Each country with which the United States has a treaty relationship under the Convention has designated a Central Authority to carry out specific duties under the Convention.
b. A person seeking the return of a child to the United States under the Convention may submit an application to the U.S. Central Authority, directly to the Central Authority of the country where the child is believed to be located, or (in many countries including the United States) directly to the appropriate court or other adjudicative authority.
c. The Central Authority for the United States is the Department of State, specifically:
Office of Children’s Issues
Overseas Citizens Services (CA/OCS/CI)
Department of State
Washington, D.C. 20520-2818
You can also call 1-888-407-4747 toll-free within the United States and Canada, or by calling a regular toll line, 1-202-501-4444, from other countries. These numbers are available from 8:00 a.m. to 8:00 p.m. Eastern Time, Monday through Friday (except U.S. Federal holidays).
Posts abroad can reach the CA/OCS Child Abduction Duty Officer after hours through the Department of State Operations Center.
7 FAM 1713.3-6 State Party Countries
The United States has a treaty relationship with only some of the acceding countries. It is important to understand this because the United States does not have a treaty relationship with all countries party to the Convention as listed on the Hague Conference Child Abduction status page. It is also important to understand that just because a country is a “signatory” to the Convention does not mean that the treaty is in force for that country. Signing a Convention is a signal of interest, but does not mean that the country has acceded to or ratified the treaty. In addition, under the terms of the treaty, countries “party” to the Convention may have the right to refrain from entering into a treaty relationship with other countries “party” to the Convention. The U.S. evaluates a country’s preparedness for Hague Abduction Convention duties before it accepts that country as a treaty partner. See Treaties in Force on the Department of State Internet page, 11 FAM 744.1 and CA/OCS Intranet treaties feature.
7 FAM 1713.4 Department's Responsibilities In Hague Convention Cases
As the designated U.S. Central Authority, the Department, through CA/OCS/CI, handles inquiries and correspondence from parents, their attorneys, and other interested parties concerning children abducted to or from Hague Convention countries:
(1) In cases involving abduction from a Hague country to the United States (“incoming”), CA/OCS/CI, provides the following services:
(a) Accept applications for return or access from Foreign Central Authorities;
(b) Assist in locating the children who are the subject of a Hague Abduction Convention Application within the United States;
(c) Attempt to facilitate voluntary returns or access where possible;
(d) Assist left-behind parents with locating attorneys, including attorneys willing to work on a pro bono or reduced-fee basis for qualified parents; and
(e) Facilitate return of children to their habitual residence. See 73 FR 65539, October 30, 2008 which Amended 22 CFR 94.6 to reflect the role of CA/OCS in handling incoming abduction cases.
(2) In cases involving abduction from the United States (“outgoing”) to another Hague Abduction Convention country, CA/OCS/CI is responsible for processing applications under the Convention, communications with foreign central authorities, and coordinating with posts.
FYI: For information about processing inquiries, correspondence, and applications concerning children abducted to or from non-Hague Convention countries, see 7 FAM 1714.
7 FAM 1713.5 Consular Officer Responsibility In Hague Convention Cases
Consular officers in countries with which the United States has a treaty relationship under the Hague Abduction Convention are responsible for supporting the Department’s efforts to ensure that cases are handled consistently with the Convention. In some Hague Abduction Convention countries with highly developed administrative and legal systems and experience with the Convention, your involvement in individual return and access cases may be relatively limited. It is always important to remember, however, that even in Convention countries, a left-behind parent may choose, generally in consultation with legal counsel, to pursue remedies alongside or instead of those created by the Convention and that may require significant consular assistance. Furthermore, posts may need to assist parents or foreign governments in facilitating a child’s return to the his/her country of habitual residence pursuant to a return order.
7 FAM 1713.5-1 Hague Abduction Convention Cases filed with the Department
The Department will advise posts for information purposes that a Hague case is ongoing in their district, and may call upon a post to conduct a welfare/whereabouts search, attempt to visit the child, make a formal protest, confirm communication, or take other actions on the Department's behalf.
7 FAM 1713.5-2 Cases Originating At Post
On occasion, your post will be the first to learn of an abduction case that may qualify as a Hague case, generally when the LBP contacts the post directly. In such cases, you should take the following actions:
(1) Assist parents in making the initial contact with CA/OCS/CI and/or the host country central authority, after making clear that the parties should deal directly with the central authorities of the United States and the foreign country concerned;
(2) If the LBP is located in the United States, and the case appears to qualify as a Hague case;
(a) Enter the facts of the case into the ACS system; and
(b) Refer the caller to CA/OCS/CI.
(3) If the LBP or other caller is physically located in the consular district, whether the inquirer is a U.S. citizen parent or a foreign national, you should refer them to the host country central authority and notify CA/OCS/CI; and
(4) Explain to the caller that the appropriate authorities (e.g., the relevant Central Authority or courts) must make the official decision on the applicability of the Hague Abduction Convention to a specific case.
Child abduction, wrongful retention, and access cases arising in countries with which the United States DOES NOT have a treaty relationship under the Convention, or cases in which the child's abduction or wrongful retention took place PRIOR to the Convention's entry into force between the United States and the host country, should be handled in accordance with 7 FAM 1714.
7 FAM 1714 NON-HAGUE CONVENTION CASES
The Hague Abduction Convention may not apply to a particular case of international parental child abduction/wrongful retention for any one of several reasons. Some of the most common include:
(1) The host country does not have a treaty relationship with the United States under the Convention;
(2) The child is age 16 or older;
(3) The abduction or wrongful retention took place before the date on which the United States accepted the host country’s accession to the Hague Convention
7 FAM 1714.1 Department’s Actions In Non-Hague Convention Abduction Cases
a. The Department provides services to U.S. citizen children in cases of international child abduction or wrongful retention to which The Hague Abduction Convention is not applicable on the basis of its general responsibility for the welfare of private U.S. citizens abroad (for outgoing cases), and as a senior-level policy decision involving, among other issues, concerns for reciprocity (incoming cases).
Note: For outgoing cases, unlike in Hague Abduction Convention cases, the child MUST be a U.S. citizen/national, or the child of a U.S. citizen/national, in order for the Department or the consular officer to provide consular services in a non-Hague case.
For incoming cases, CA/OCS/CI opens a case if the LBP has either a 1) custody order granting him/her custodial rights, or 2) an INTERPOL yellow notice for the child, or CA/OCS/CI believes that accepting the case would further policy objectives to encourage assistance in returning abducted or wrongfully retained children to the United States.
b. For Outgoing cases, consular officers in CA/OCS/CI collaborate with posts to develop strategies for each case taking into consideration the judicial and administrative practices and cultural norms of the country involved and the wishes of the left-behind parent.
c. CA/OCS/CI controls the International Parental Child Abduction (IPCA) database, making the entries and creating a variety of management reports, public relations data, and background for congressionally mandated reports. IPCA is available at post on a read-only basis through the Consular Consolidated Database (CCD). When working with a possible abduction cases, please run a check of IPCA as well as a check of ACS to view the current case history.
d. Recognizing the strong media and public attention these cases can generate, CA/OCS/CI works closely with the geographic bureaus, Public Affairs, and Congressional Relations, to generate press guidance, briefing papers, talking points and recommendations for political and diplomatic approaches to specific cases.
7 FAM 1714.2 Consular Officer Role In (Outgoing) Non-Hague Abduction Cases
Non-Hague abduction cases tend to be particularly complex and difficult, and require considerable effort, expertise, and creativity on the part of consular officers both in the Department and at post in a coordinated effort to achieve the return of an abducted or wrongfully retained child to the United States. In such cases, simultaneously pursuing consular and parental access to the child is a related goal. It is important to understand the left-behind parent’s specific goals and request for assistance. Occasionally, left-behind parents may only want the Department to help the parent gain access, not the child’s return.
Note: CA normally relies more heavily on the consular officers in the field in outgoing non-Hague cases, both as experienced sources of information and as action officers.
7 FAM 1714.2-1 Locate Child And Ascertain Welfare
a. Often the first step in responding to an abduction/wrongful retention case is to confirm the child’s welfare and whereabouts. In situations where the taking parent is uncooperative, this may require host government assistance (see 7 FAM 1716).
b. Before opening a non-Hague international parental child abduction (IPCA) case, CA/OCS/CI country desk officers must confirm that all of the following requirements are met:
(1) The case involves a U.S. citizen child or child of a U.S. citizen;
(2) The child is under the age of 16;
(3) The child was habitually resident in the United States or a third country immediately prior to the removal or wrongful retention across an international border;
(4) The child was abducted to, or wrongfully retained in a foreign country that is not a U.S. partner or a partner with the country of the child's habitual residence under The Hague Abduction Convention;
(5) The "taking parent" is a person with parental or custodial rights, or someone acting on that person's behalf; and
(6) The "left-behind parent" has parental or custodial rights, either by court order or operation of law.
c. CA/OCS/CI will open and manage an outgoing access case only in the following circumstances:
(1) The U.S. citizen child meets the 7 FAM 1714.2-1 b criteria for an IPCA case, is located in a country that is not a Hague Abduction Convention partner with the United States, and a person with custodial rights is seeking access to the child rather than a return; or
(2) The child is located in a country that is a Hague Abduction Convention partner with the United States and the parent files a request for access under article 21 of The Hague Abduction Convention.
d. If a case does not meet these requirements or the requirements for a Hague Convention application for either return or access, the CA/OCS/CI country desk officer will refer the parent to the appropriate U.S. embassy or consulate, which would provide the same support given to any U.S. citizen involved in legal proceedings overseas. The CA/OCS/CI country desk officer must notify the American Citizen Services (ACS) chief in the U.S. embassy or consulate and the appropriate CA/OCS/ACS desk officer about the inquiry and any facts discussed so they are prepared when the parent follows up.
7 FAM 1714.2-2 Coordinate With Host Government And Department
Responding to abduction/wrongful retention cases often requires the involvement of host government authorities. Some posts have found it useful to establish regular meetings with key host government officials to review outstanding cases and identify potential remedies. Posts can also formally request assistance from the host government via diplomatic note.
7 FAM 1714.2-3 Information On Options And Resources
As a consular officer at a U.S. embassy or consulate abroad, you are a source of information and experience for the Department and for the individuals involved in the dispute concerning the child. As such, it is vital that you develop a core of information and contacts that includes:
(1) Background on the judicial system of the host country, with emphasis on the law (including judicial opinions), regulations, and law enforcement and administrative practices relevant to custody and related disputes;
(2) An understanding of any laws, traditions or cultural mores that might affect the parents or the child on the basis of gender, age, nationality, or religion;
(3) A working knowledge of local nationality laws, particularly as they might affect a United States citizen spouse or child;
(4) Information on social welfare services and benefits available to children and parents, including access to free or reduced fee legal aid;
(5) Information on any domestic violence shelters or similar social service organizations or facilities that might assist a parent and/or child;
(6) A list of other private or quasi-government organizations that may be able to provide support and assistance; and
(7) A range of contacts within the public and private sector that you can call upon for assistance and information in specific cases.
7 FAM 1714.3 Cases Originating At Post
Normally, inquiries from the LPB or their representative will be directed to the Office of Children’s Issues (CA/OCS/CI). Some inquirers may contact the post directly, either because they are unaware of the existence of the Office of Children’s Issues and their role, or because they are already in country. Whenever the post is contacted directly, the consular officer should:
(1) Obtain all available information from the requesting party;
(2) Request that CA/OCS/CI initiate a new case in the IPCA database;
(3) Notify the appropriate case officer in CA/OCS/CI of the case immediately by email, telephone, or cable. A list of case officers and their portfolios is available to posts on the CA/OCS/CI Intranet website or post can send an email to AbductionUSCA@state.gov; and
(4) Advise the caller, particularly if in the United States, to contact CA/OCS/CI directly.
1-888-407-4747 toll-free within the United States and Canada, or by calling a regular toll line, 1-202-501-4444, from other countries. These numbers are available from 8:00 a.m. to 8:00 p.m. Eastern Time, Monday through Friday (except U.S. Federal holidays).
7 FAM 1715 Welfare And Whereabouts Visits To Abducted Or Wrongfully Retained Children in ABDUCTION Cases
7 FAM 1715.1 Locating An Abducted Or Wrongfully Retained Child
Whether as a result of a request from CA/OCS/CI, a phone call or a visit from an left behind parent (LBP), often one of your first actions in a specific case will be to locate the child and, in most cases, the taking parent (TP). Possible resources include:
7 FAM 1715.1-1 Available Records
a. Post Records: Check your own records, including the Passport Issuance Electronic Record System (PIERS), for any recent or previous information on the child and/or the TP.
b. Immigration Records: Assuming records are reliable, and that you can gain access to them, often the best and fastest method of locating the child, or at least confirming their entry into the country, is through host government immigration sources.
c. School Records: If the child is school age, school officials may be a useful source.
7 FAM 1715.1-2 Family Members
Often the LBP can provide the names, addresses, and phone numbers of various members of the TP’s family. Whether these inquiries can be made by phone or require a personal visit will depend on the circumstances of the case. When contacting the TP’s family the consular officer should state clearly that the purpose of the call is to confirm the child’s welfare. This will help avoid the family’s fear that the U.S. Government is going to “snatch” the child and facilitate consular access.
(1) You may wish to have an FSN or other individual with language capability at a high proficiency level to make the initial call, if the TP is a national of the host country.
(2) When making “cold” calls on family members, it is generally best to try and contact every person in quick succession, to minimize the possibility of one family member alerting another that you are looking for the child, which may cause them to help to conceal the child’s whereabouts.
(3) It is often best to simply ask to speak to the taking parent, rather than immediately ask about the child. If he or she does answer, the circumstances of the individual case will dictate whether you should disconnect at that point, or begin a dialogue with the TP.
(4) Occasionally, the LBP will provide the contact information for an in-law or family friend who may be sympathetic to the LBP, and therefore an excellent source of information for the consular officer.
(5) It is conceivable that the abducted child might answer the phone. While the circumstances of the case will dictate your actions, in most instances it is probably not best to identify yourself at that point to the child or begin questioning the child. Instead, consider asking for the Taking Parent or simply ending the call.
7 FAM 1715.1-3 Visual Identification
On occasion, the only way to confirm definitively the location of the child or the taking parent may be for the consular officer to see them personally or to enlist the help of others in the community who may have seen the child or TP.
(1) Whenever possible, CA/OCS/CI will obtain photographs of the child and the TP and provide them to post.
(2) Consider utilizing the expertise of your anti-fraud investigators to circulate the photos in neighborhoods, shops, schools, churches, synagogues, mosques, etc. where the child or TP may spend time.
(3) Children who have been abducted or wrongfully retained are often the subjects of Interpol missing persons (“yellow”) notices. These are disseminated through law enforcement channels. CA/OCS/CI can assist in confirming that local law enforcement has received copies of “yellow notices” for children in a particular country.
(4) Once a child is located, the consular officer should make every effort to interview or visit the child personally. If unusual circumstances prohibit a personal visit by the consular officer, post should arrange for an appropriate local official or consular agent to make the visit. See sections 7 FAM 1715.3 through 1715.6 for detailed instructions about how to conduct and report on these “welfare and whereabouts” visits.
7 FAM 1715.2 Objection To Visit By LBP
CA conducts “welfare and whereabouts” visits with abducted or wrongfully retained children when LBPs have no meaningful access to their children in order to provide information about the child, to facilitate communication, and to encourage parents to voluntarily return children to the United States. While most LBPs are eager to have the visit take place and anxious to hear the results, at times an LBP will specifically ask that no visit be made. This is usually out of concern that the TP might be alarmed and take the children to another, more secret, and location. Sometimes, however the LBP believes that the child will soon be back in her/his physical custody, and does not want to involve U.S. and/or host government officials. In these cases:
Note: Remember that our first concern is for the welfare of the child. While we normally want to respect the wishes of a parent, there are rare circumstances, such as when credible evidence or allegations of abuse exist, in which the visit should take place notwithstanding objections from the LBP. See 7 FAM 100 for guidance about welfare and the whereabouts function and authorities.
(1) Determine the LBP’s reasons for objecting to the visit;
(2) Assess the child’s circumstances;
(3) If you believe that a visit is necessary, consult with CA/OCS/CI before conducting the visit, if circumstances permit; and
(4) If the urgency of the circumstances requires it, take action immediately to protect the child and consult with CA/OCS/CI as soon as possible thereafter.
7 FAM 1715.3 Preparation For Visit
You should carefully plan and execute consular welfare visits in abduction cases. These visits are extremely important for a number of reasons:
(1) To confirm the health and welfare of the child;
(2) To provide some measure of comfort or reassurance to the LBP, as well as information about the child. (Note, however, that any person with parental rights to a child has the right to information about that child. Therefore, w/w reports can and should be made available to both parents, with 3rd party PII redacted, upon request);
(3) To assist with direct communications between the LBP and child, if possible and appropriate; and
(4) To facilitate communication between the LBP and TP to encourage a voluntary return.
7 FAM 1715.3-1 Consent Of The TP Or Other Custodian
While a “cold” visit may be appropriate to locate or confirm the whereabouts of the child, in-depth consular visits normally will be possible and successful only with the cooperation, or at least the consent, of the TP or the other person supervising the child. You should be as persuasive as possible in trying to obtain this cooperation or permission. Some TPs may only agree to a meeting if held in a neutral or public space.
7 FAM 1715.3-2 List Key Issues
Establish in advance the points you wish to observe and questions you want to ask during the visit.
Note – Child Abuse: An important part of this is to be aware of the signs of CHILD ABUSE, whether or not it has been alleged by the LBP. See 7 FAM 1720 Child Abuse or Neglect for further information.
7 FAM 1715.3-3 Input From Left Behind Parent (LBP)
Make it clear to LBPs that a consular officer may not be able to ask all of their questions. It is not appropriate to use a welfare and whereabouts visit to help either parent with their custody dispute. We conduct welfare and whereabouts visits pursuant to our consular authority under the VCCR. While this is a service we provide to LBPs who have no access to their children, we are not agents of the LBP. Your welfare and whereabouts visit report should include:
(1) A description of the general appearance of the child(ren) the last time they saw them;
(2) Photographs of the child(ren), if available;
(3) Any long term or chronic medical conditions that mandate continued use of medication;
(4) Any existing learning disabilities or issues, and how they should be addressed in school; and
(5) Any allegations or history of abuse or mistreatment (see above).
7 FAM 1715.3-4 Equipment
You may find it useful to take along:
(1) A camera, preferably digital;
(2) Cellular telephone; and
(3) Portable audio recording device. Only use if legal in the host country. and if TP does not object
7 FAM 1715.3-5 Items From Left Behind Parent
You may be asked by the LBP to provide certain things to the child, or even to the TP. While you should carry out the LBP’s wishes if possible, you should also exercise a reasonable degree of caution:
(1) Letters or Messages to the child: Advise the LBP that you can only pass on open correspondence that you have the opportunity to read in advance. See 7 FAM 1712.2 paragraph l for guidance regarding questionable letters or messages. This also pertains to gifts for the child which may be wrapped.
Note: You do not want to unknowingly aid in an illegal “rescue” plan. Nor do you want to unnecessarily damage any potentially useful relationship between you and the Taking Parent.
(2) Photographs of the LBP and other family members.
(3) School Records: Advise the LBP that you may give them to the TP, or the school authorities, but normally not directly to the child.
(4) Medical and Dental Records: Again, generally you should give these documents to the TP.
7 FAM 1715.4 Conducting The Visit
While the exact logistics and circumstances of the visit will depend on the specific case and your own judgment and experience, there are some standard issues you should try to address:
7 FAM 1715.4-1 Visit the Home
The visit should take place in the home where the child is actually living if at all possible. If the TP brings the child to the consulate, ask if a follow-up home visit can be scheduled.
7 FAM 1715.4-2 Keep It Informal
Note: Avoid obviously ticking off a paper checklist in front of the child and TP. You may seem overly intrusive and bureaucratic.
7 FAM 1715.4-3 Private Conversation
If the child is old enough to converse, ask if it is possible to meet alone with the child for a portion of the visit.
7 FAM 1715.4-4 Be Observant
a. Note the abducting parent’s demeanor or conduct toward the abducted child, and towards the consular officer. Take care to note details about the child that may seem minor but will likely be of great importance to the LBP. Examples include mannerisms, style of clothing or hair, activity level during the visit, toys or other personal items that the child holds or keeps nearby, and topics discussed. Avoid making subjective and/or vague judgments, such as “the child appeared happy.” Instead, state more objective criteria, such as “the child interacted with the conoff in an animated manner; the child appeared to be clean and appropriately clothed for the weather.”
b. Stick to personal observations. Write down what you saw and heard, but avoid your own conclusions. For example, it is good to note how many bedrooms the house had, whether there were age-appropriate toys, etc. It is not good to say – house looked like good place for a 5 year old.
7 FAM 1715.4-5 Medical Needs
Make a specific inquiry about any special care required by the child, such as the continued use of necessary medication, and whether the child has had any recent illness, injury, or hospitalization. Ask to see any medicine the child is taking and request details about prognosis, plans for ongoing treatment, and long term implications, if any.
7 FAM 1715.4-6 Camera
Offer to take photographs of the child and surroundings to share with the LBP, if the tenor of the visit permits. With younger children, ask if you may take photographs or artwork or writing samples to share with the LBP. If possible, take photographs of outdoor space as well, including parks, shops, sidewalks, or other aspects of the surrounding area that will inform the LBP about the child’s living environment.
7 FAM 1715.4-7 Contact With The LBP
Offer to let the child use your cell phone to communicate directly with the LBP if the tenor of the visit permits. If this is not feasible, ask if the child may make a voice recording to be given to the LBP. When age-appropriate, ask if the child would like to communicate with the LBP directly by e-mail, Facebook, Skype or other social media, or telephone, and facilitate the exchange of contact information.
7 FAM 1715.4-8 Arrange Future Communications
Ask if the LBP may communicate directly with the child after the visit by telephone, mail, or the Internet, as appropriate.
7 FAM 1715.4-9 Maintain A Compassionate But Professional Demeanor
As you interact with the TP and the child, keep in mind that feelings between the TP and the LBP often run very high and the TP may seek to influence you by making prejudicial claims against the LBP (and vice versa). Focus on the purpose of the visit—to observe the welfare of the child and make a report. As you interact with the TP over time, it will be important to maintain this professional demeanor and avoid taking sides in the details of the parental conflict.
7 FAM 1715.5 Frequency Of Visits
7 FAM 1715.5-1 Follow-Up Visits
After the initial visit, you may have to make follow-up visits depending on whether there are concerns about the well-being of a child. Circumstances such as serious or prolonged illness of the child or a change of residence may also require follow-up visits.
7 FAM 1715.5-2 Routine Visits
If there is no need for more frequent visits and if the LBP has no meaningful access to a child, consular officers should attempt to visit an abducted/wrongfully retained child every six months.
7 FAM 1715.5-3 Ending Routine Visits
One of the purposes of conducting welfare visits is to encourage meaningful access by the LBP to his or her child. If post believes that an LBP has meaningful access and routine visits are no longer appropriate per 7 FAM 1715.5-2, post should notify CA/OCS/CI. If post believes routine visits are inappropriate for any other reason, post should consult CA/OCS/CI before ending routine visits.
7 FAM 1715.6 Reporting On Child Visits
It is essential that a concise, factual report be made of each visit and submitted to CA/OCS/CI as quickly as possible. You can expect these reports to be of great interest to both parents, and to be scrutinized in great detail. You should also bear in mind that they will often reach a wider audience, including attorneys, congressional offices, courts, the media, and occasionally, courts.
7 FAM 1715.6-1 Transmitting the Report
Send a report of the visit via record email to the CA/OCS/CI country officer in a form that can be directly converted to a letter addressed to the LBP or other requester. A cable may be appropriate for certain sensitive or high-profile cases.
(1) The report should be informative, but factual. Include your direct observations, without interpretation or comment.
(2) Avoid direct quotes if possible; if you do choose to include them, however, make certain the quotes are accurate - word for word – and provide the context of the conversation.
(3) We take no position on the truthfulness or accuracy of statements made by taking parents or others. When reporting the statements made by others during the visit, make sure it is clear who spoke the words. You should not state opinions about other people’s statements (such as whether those words are likely true or not). You may, however, include any direct observations you made that may contradict what someone has said.
(4) Address any specific questions or topics provided by the LBP in advance of the visit if possible.
(5) Any information gathered during a welfare and whereabouts visit that does not address the welfare of the child but which post believes is important for CA to know is to be reported by a separate email or cable. Post is not to include information in the welfare and whereabouts report that pertains to the underlying custody dispute.
(6) Do not make prejudicial or judgmental statements that might undermine the report’s character as an objective and evenhanded statement of facts and/or observation.
7 FAM 1716 PARENTAL Access To The Abducted Or Wrongfully Retained Child
Your objective in abduction and wrongful retention cases is normally the lawful, prompt, and safe return of the child to his/his or her country of habitual residence. Some parents, however, prefer to seek access instead of return. Others may prefer to seek access simultaneously with efforts to achieve return. Action to promote access often presents issues similar to those discussed in 7 FAM 1715 on seeking welfare and whereabouts visits.
NOTE: In addition to aiding parents or legal guardians in abduction and wrongful retention cases, you should also assist parents or legal guardians to exercise their legal rights of access to children who were NEITHER abducted NOR wrongfully retained.
7 FAM 1716.1 Policy On Access
The Hague Abduction Convention is based on the premise that governments should assist persons with access rights to a child to enforce those rights. Our efforts to assist the TP to permit access to the LBP under reasonable conditions serve this general principle.
7 FAM 1716.2 Negotiating Access
Assisting parents and their representatives to arrive at reasonable access arrangements may require the coordinated efforts of the Department, law enforcement, local police and social welfare authorities, consular officers, private attorneys, mediators and others. Some parties are able to make these arrangements with no intervention on the part of consular officers. Many require additional assistance. Consular officers may assist by providing parents useful information or contacts with these various other agencies or experts. Consular officers should not assume a direct role in attempting to negotiate access for parents.
7 FAM 1716.2-1 The Consular Role In Access When the Child is Located Overseas
As a consular officer, you provide a critical interface with the taking parent and host country officials who often make or break a request for access to an abducted/wrongfully retained child. You may also be called upon to interact with both Taking and Left Behind parents. The consular officer should not negotiate the access with the parties directly, but can facilitate communication and encourage meaningful access.
7 FAM 1716.2-2 Meaningful Access
Meaningful access can take many forms. The following are common methods of access that may be acceptable to parents:
(1) Telephone calls: Regular or periodic scheduled calls or calls at the child’s initiation on a cell phone or calling card provided by the LBP.
(a) In some countries, with the consent of the TP, schools are willing to have LBPs call a child while at school.
(b) Social service agencies in some countries will facilitate phone contact, as well.
(2) International Mail: Initially, many TP’s are unwilling to permit any form of interaction between the LBP and the abducted or wrongfully retained child. Access in the form of letters may be a first step to re-establish contact.
(a) Some TP’s will insist on screening all letters.
(b) Some may permit packages as well as letters.
(c) Some parents prefer letters and packages not be sent directly to their home, but will permit use of a post office box.
(d) Some TP’s will permit mail to be sent through third parties such as attorneys, relatives, friends, or church leaders.
(3) Mail Through the Post: If no direct or neutral third party contact is possible, you may accept and deliver opened mail, e-mail and fax messages on behalf of either party. Advise the LBP that you must be able to read the contents of any such mail in order to accept and deliver it. See 7 FAM 1712.2 paragraph l for guidance regarding possibly questionable messages and letters.
Note: The acceptance and delivery of any such mail must, of course, take place in compliance with Departmental rules regarding pouch and mail services.
(4) Visits By The LBP: In-country visits by the LBP are a frequent request. If unsupervised visits are not possible, supervised visits at a visitation facility or other neutral location, including the U.S. Mission may be an option.
(5) Video: Some parents have been successful preparing a “home video” about their life, surroundings, and interests to share with the abducted or wrongfully retained child. You may deliver such a video to the child once you have viewed it. If you do not think the video is appropriate to deliver, send it via pouch to CA/OCS/CI with an explanation.
(6) Email/Skype: Internet access is common in many countries, in homes, schools, or Internet cafés. Arranging for email and or Skype communication may be as easy as providing the child or LBP, an email or Skype address.
7 FAM 1716.2-3 Discussing Access With The LBP
In most cases, the LBP sees the return of the child to his or her custody as the only satisfactory resolution of an abduction case. Some parents, however, are willing to work simultaneously on return and access. You should broach the subject with them early on, offering to seek access as you work to achieve return. In discussing access with the LBP, consider the following:
(1) Are there local resources to assist with access? Do social service agencies provide neutral, controlled settings for parents to meet children? Can the agency assist the parents with dispute resolution?
(2) Can local courts assist to encourage or compel access?
(3) The LBP’s legal counsel may be concerned that seeking access will prejudice or delay a return. Relating your prior experiences in access cases may help legal counsel make an informed recommendation to the LBP.
(4) Discussions or interim access agreements do not necessarily preclude continuing efforts to obtain return of the abducted or wrongfully retained child. This would be a question for the LBP to discuss with his or her legal counsel.
(5) Some parents seeking return may ultimately settle for access if it is reasonable and frequent enough. Helping to facilitate an access agreement may lead to resolution of the case. The LBP should discuss these issues with his or her lawyer.
(6) Developing meaningful access may lead to the possibility of the child's eventual travel to the United States.
7 FAM 1716.2-4 Discussing Access With The Taking Parent
It is helpful to consider the perspective of the taking parent as you work with them to facilitate access arrangements. Often the TP believes that he or she has the upper hand, and sees no advantage to permitting access, much less to entering into a dialogue with the consular officer or LBP. To the extent possible and appropriate, you may inform the TP of some potential benefits of agreeing to access, including:
(1) Appeal to the TP’s concern for the best interests of the child by allowing access in order to achieve a reduction in hostilities with the LBP; and
(2) Children benefit from having a relationship with both of their parents.
7 FAM 1716.2-5 Promoting a Voluntary Resolution
Except perhaps in those situations in which dialogue seems impossible or even potentially counter-productive, such as cases with a pattern of domestic violence or other abuse, you should make a reasonable effort to facilitate communicate between parents. Although consular officers provide an essential coordinating service, they are not trained social workers or therapists and should avoid taking on that role. With that in mind, consider providing the following types of assistance:
(1) If the parents do not have attorneys, offer to pass messages to help start communication, while encouraging them to find a more appropriate means to communicate;
(2) Facilitate the logistics for a meeting or place for a visit; and
(a) Identify and offer a neutral meeting point that will provide the maximum amount of reassurance and security to both parties:
(b) It is often helpful to arrange for these meetings to take place in a professional family care environment – offices of a family therapist, counselor, psychologist, etc.
(c) Post facilities may be an appropriate venue in some cases, particularly if there is some concern for the welfare or safety of the LBP.
(d) A meeting spot controlled by the host government can sometimes provide assurances of safety to both sides.
(3) Provide a list of family care professionals that could possibly facilitate a meeting. As a consular officer, you should never attempt to take on that role, even if you have some prior social work experience. As with attorneys and medical care providers, consular staff should not recommend a professional for parents to use. Refer inquirers to post’s lists for the parents to make their own selection.
NOTE: Avoid participating in the meeting yourself, if possible. If your presence seems necessary or desirable, make certain all parties understand you are there only as an observer.
7 FAM 1716.3 Assistance Of Local Authorities
The point at which you approach local authorities for assistance in gaining consular access will vary from country to country and perhaps from case to case. In some countries, you may find it more expedient to work through cooperative local authorities from the beginning.
7 FAM 1716.3-1 Explaining Your Involvement
Point out to local authorities the interest that the U.S. Government has in ascertaining the health and welfare of its citizens, an internationally recognized function of any nation's consular officers. If necessary, refer local officials to Articles 5(h) and 37(b) of the Vienna Convention on Consular Relations (VCCR) or the similar provisions of a bilateral convention, if applicable. See Treaties in Force on the Department of State Internet home page to confirm if there is a consular convention in force between the United States and the host country. See also the CA/OCS Intranet Treaties feature for texts of bilateral consular conventions.
7 FAM 1716.3-2 Locating The Child
Local authorities are often the best source of information to help locate the child or to verify a child’s presence in the country. You should stress that you are not representing the LBP in his or her efforts to locate the child, but that you have an independent authority under the VCCR and/or the Hague Abduction Convention to find the child and determine his or her health and safety as a part of your official responsibilities.
7 FAM 1716.3-3 Visiting The Child
Local authorities can sometimes be useful in arranging a consular welfare or access visit, by persuading the TP of the merits, or by providing an appropriate neutral venue.
7 FAM 1716.3-4 Confronting Abuse
If there is evidence of child abuse, neglect or potential danger or harm to the child, you must make strong representations to local authorities for an investigation and, if warranted, for appropriate action to protect the child. See 7 FAM 1720 for further information on handling cases involving child abuse or neglect. See also 7 FAM 1730 for guidance on child exploitation.
7 FAM 1717 U.S. PASSPORT AND VISA ISSUANCE AND DENIAL
7 FAM 1717.1 Passports
a. U.S. law and regulations governing passport issuance and denial, as provided in 7 FAM 1300 Passport Services, are often involved in international custody or abduction cases. The primary examples are:
(1) To protect against a non-custodial parent or other obtaining a passport for minors with the intent to abduct them; and
(2) To provide a basis for determining that a parent has committed fraud in obtaining a passport for a minor.
b. For specific guidance on passport issuance and denial, see 7 FAM 1300 Passport Services, specifically 7 FAM 1350 Passport for Minors; 7 FAM 1300 Appendix Q Children’s Passport Issuance Alert Program (CPIAP) and 7 FAM 1380, Passport Denial.
7 FAM 1717.2 Visa Denials And Revocations Under INA 212(a)(10)(C)
Complete guidance on this ineligibility is provided at 9 FAM 302.10.
DO NOT ISSUE A U.S. VISA TO A PERSON WITH ANY KNOWN INVOLVEMENT IN A CHILD ABDUCTION CASE UNTIL YOU CONSULT 9 FAM AND CONFER WITH CA/VO and CA/OCS/CI AS APPROPRIATE.
7 FAM 1718 incoming abduction cases - When tHe Abducted Child Is In The United States
a. Periodically, posts may receive requests for assistance from persons in the host country who are anxious to ascertain the welfare or whereabouts of their children who are, or who they believe are, in the United States. While in some circumstances assisting such a person may not appear to fall directly within the purview of your consular responsibilities, you should provide, as appropriate, reasonable assistance.
b. Foreign Consuls in the United States: Foreign nationals abroad who are concerned about the welfare and whereabouts of children who may be in the United States should be advised to contact their embassy in the United States or their country's consular official responsible for the region in which the child is thought to be physically located. The foreign consul may be able to conduct a welfare and whereabouts inquiry. This is a function of consular officers under the VCCR and applicable bilateral consular conventions.
c. Hague Child Abduction Convention Countries: If the parent claims that a child habitually resident in a Hague Abduction Convention country has been abducted to or is being wrongfully retained in the United States, you should:
(1) Refer the parent to the Central Authority for the Hague Abduction Convention in the host country that will assist the parent to pursue the return of or access to the child; and
(2) You may also advise the parent that s/he may pursue the return of or access to a child by filing a Hague Abduction Convention application directly with the U.S. Central Authority or by filing an appropriate action in the appropriate U.S. court.
d. U.S. Policy on Accepting Incoming Hague Abduction Convention Applications: Applications containing the following characteristics will not be accepted for processing by the U.S. Central Authority:
(1) For return and access cases, the subject of the application is age 16 or over; and/or
(2) For return cases only, The Hague Abduction Convention was not in force between the United States and the sending country at the time of the alleged abduction, or at the time the alleged wrongful retention began, even if during the course of the wrongful retention the Convention entered into force between the United States and the other country.
(3) The subject of the application is a child who was issued an IR-3, IR-4, IH-3, or IH-4 visa to enter the United States.
e. The following applications will be identified for possible non-acceptance pursuant to Article 27 of the Convention, and subjected to an application review:
(1) Return applications where:
(a) Within the application, the applicant provides no evidence of rights of custody at the time of the alleged wrongful removal or retention; or
(b) The application as presented clearly demonstrates that the child that is the subject of the application never lived in the alleged habitual residence.
(2) Access applications where:
(a) Within the application, the applicant provides no evidence of rights of access (e.g., visitation rights) at the time of the application;
(b) The USCA is aware that an action for access rights (e.g., visitation rights) is ongoing in a court in the United States, and that both parties have had notice and are represented by counsel; or
(c) The applicant seeks modification of an existing custody or visitation order from a court in the United States, and the applicant participated in the proceedings (including through counsel) that led to the order.
f. The following applications will be identified for a possible reduced level of legal assistance services:
(1) Return or access applications which fit into any o the categories described in 7 FAM 1718 e(2), if the USCA ultimately decides to accept the application.
(2) The applicant is barred from entry to the United States because of a felony criminal conviction.
g. Countries not party to the Hague Child Abduction Convention: You may direct inquirers to several sources of assistance in child custody cases, and in locating children within the United States, including, but not limited to:
(a) CA/OCS/CI if the requesting person has a court order granting him/her custodial rights to the child, or there is an INTERPOL yellow notice in the child’s name;
(c) Attorney general’s office of the State where the child is believed to be located. See the Internet page for the National Association of Attorneys General (NAAG) and NAAG Contact page.
(d) Local law enforcement. They may be able to work with Interpol to request location assistance in the United States.
h. Enforcement and Recognition of Foreign Custody Orders: You may advise inquirers that information concerning recognition and enforcement of custody decrees and other aspects of child custody law may be obtained from the attorney general’s office of the state where the child is believed to be located. See general flyer on Enforcement of Judgments on the CA Internet page. In addition, the inquirer may be referred to information on the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), and the Consular Affairs Child Abduction Internet feature U.S. Legal System Frequently Asked Questions which provides an enforcement mechanism for existing custody orders.
i. Requests for Legal Counsel: If inquirers are seeking private legal counsel in the United States, contact the relevant country officer in the CA/OCS/CI Incoming Branch. The CI country officer may forward the parent’s request for legal counsel to CA/OCS/L’s Legal Assistance Coordinator (LAC), who may provide a full fee attorney list. In addition to the assistance provided by CA/OCS/L’s LAC, there are a variety of other sources parents may use to help with their search for legal services, including:
(a) Martindale-Hubbell Law Directory. This is often available in local foreign libraries and online.
(b) American Bar Association: American Bar Association Consumer’s Guide to Legal Help; ABA Directory of Lawyer Referral Services and ABA Family Law Section;
(c) State bar association where the child is believed to be located. See the ABA State and Local Bar Association Directory; and
(d) International Academy of Matrimonial Lawyers Directory (IAML).
j. Judicial Assistance Treaties and Child Abduction: The U.S. Department of Justice, Civil Division, Office of Foreign Litigation, which is the U.S. Central Authority for the Hague Conventions on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, the Inter-American Convention on Letters Rogatory and Additional Protocol to the Convention on Letters Rogatory (Service of Process) and the Hague Convention on the Taking of Evidence Abroad advises that it is receiving numbers of more requests under the service and evidence conventions pertaining to home studies, compulsion of visitation by social service experts and other matters related to child abduction work. Questions regarding the use of these treaties should be directed to CA/OCS/L at ASK-OCS-L@state.gov, which will coordinate with the Justice Department. See 7 FAM 900 Judicial Assistance. Country specific information about judicial assistance is available on the CA Internet page.
7 FAM 1719 Release Of Information To Parents
7 FAM 1719.1 Privacy Act Guidelines
a. Under the Privacy Act of 1974, (5 U.S.C. 552a) subsection (h) both parents, regardless of which parent has legal custody, have the right to request their minor child’s records. The parents have this right regardless of whether they have legal custody and regardless of the citizenship or immigration status of the parent. The right is based on the child being a U.S. citizen or LPR and the parents step into the shoes of their minor child for the purposes of the Privacy Act.
Note: See State-05 (Overseas Citizens Services Records), State-26 (Passport Records) and the Department Prefatory Statement of Routine Uses, available on the Internet at the Department of State FOIA page, Privacy Act Issuances Index
b. There is no Federal statute defining the age of a "minor" for all purposes. In most cases, the Department considers any unmarried U.S. citizen/national or lawfully admitted permanent resident alien under the age of 18 to be a "minor". This definition differs from that of “child” for visa purposes.
c. The Privacy Act, in Sec. 3, defines an individual as "a citizen of the United States or an alien lawfully admitted for permanent residence". This means that the Privacy Act does not apply to an alien who is not a legal permanent resident.
d. The Privacy Act does not protect records pertaining to deceased individuals, however, next-of-kin may have a “common law” privacy interest in not having information about the deceased released, e.g., if it could embarrass, endanger or cause emotional distress to them (see 7 FAM 061 e).
e. The Privacy Act makes no distinction between married and unmarried parents.
f. You must consider the wishes of a minor of sufficient age and maturity (generally around 14) concerning the release of Privacy Act protected information about him or her if you know them. A minor’s rights under the Privacy Act should generally be respected, but must be weighed against the parents’ right to the information as well as the need to ensure the health or safety of the minor.
NOTE: If a child of sufficient age and maturity objects to the release of Privacy Act protected information concerning him or herself, it should not be released, even to a parent, before consulting with the Department (CA/OCS/CI and CA/OCS/L) to determine whether disclosure is permissible under the circumstances.
g. You may not release information concerning the minor to any relatives (other than the minor’s parents or legal guardians), to the press, to members of Congress, or to others, UNLESS:
(1) You have a written Privacy Act waiver concerning only the minor that is signed by one of the minor’s parents or legal guardians authorizing such disclosure; OR
(2) One of the exceptions to the bar on disclosures (e.g., health and safety exception, routine use exception) is established.
7 FAM 1719.2 Refusing the Release of Information To A Parent About the Location of a Minor
You should refuse to release information about the location of a minor when:
(1) In your judgment, based on a history of violence or current threats of violence doing so could endanger the minor or other people (ie., there is a protective order against one of the parents or allegations of child abuse or domestic violence).
(2) Disclosing the location of the minor will violate the privacy of a U.S. citizen or legal permanent residence parent who has physical custody of the minor (5 U.S.C. 552a(a)(2)).
(3) The minor is of sufficient age and maturity and asserts his/her own rights under the Privacy Act and objects to the release of the information.
(4) The parent requesting the information has had his or her parental rights terminated in an earlier judicial or administrative proceeding by a competent authority.
7 FAM 1719.3 Protecting Information Protected by the Privacy Act
Often during a child abduction, retention, or custody case, you will come to know certain information regarding the Taking Parent (TP) (location, workplace, telephone number, etc.). You may also learn information about other U.S. citizens or LPRs (such as grandparents, new spouse, or other children). The Left Behind Parent (LBP) may ask you to divulge this information. The factors to consider before sharing information about the TP with others are the nationality and immigration status of the TP, and the safety of the parents and child.
(1) If the parent with physical custody of the child is a U.S. citizen or lawful permanent resident alien (LPR), the Privacy Act protects the parent’s right to privacy relating to records about him or her.
NOTE: In such cases, you need to obtain a written Privacy Act waiver from the Taking Parent BEFORE information about the Taking Parent, or information that relates to both the child and the Taking Parent, can be disclosed.
(2) If the LBP requests information from his child’s records, you may release the information, but you should redact information that is protected by the Privacy Act, including information about any other U.S. citizens or LPRs (such as the TP).
(3) If the TP is not a U.S. citizen/national or LPR, you may release information about the TP to the LBP or others, as necessary and appropriate. You may also release information about the child even when doing so would also result in releasing information about the TP, unless you determine that such release:
(a) Could endanger the child or other people; and/ or
(b) Is contrary to the child’s own wishes concerning the release of information about him or her and the child is of sufficient age and maturity.
(4) If the LBP requests information about the child and obtains an order from a court of competent jurisdiction requiring the release of such information, forward any such requests and orders to CA/OCS/L (Ask-OCS-L@state.gov) which will determine whether or not to release the information.
7 FAM 1719.4 Releasing Information About the Left-Behind Parent (LBP) to the Taking Parent (TP)
Sometimes the TP will ask for information regarding the LBP. In most circumstances, it is not appropriate to release such information.
(1) If the LBP is not a U.S. citizen or Lawful Permanent Resident Alien (LPR), you may release the information as long as you have no reason to believe the child, or anyone else would be harmed as a result of the disclosure. If you have questions about what is appropriate for release, please contact CA/OCS/L (Ask-OCS-L@state.gov) for guidance.
(2) If the LBP is a U.S. Citizen or LPR, you must obtain a written Privacy Act Waiver before releasing information about the LBP to the TP.
7 FAM 1719.5 Passport Records
The Department maintains United States passport information on individuals for the period from 1925 to the present. These records normally consist of applications for U.S. passports and supporting evidence of U.S. citizenship, and are protected by the Privacy Act.
7 FAM 1719.5-1 Obtaining Copies Of Passport Records
a. The Privacy Act allows individuals to obtain copies of records relating to themselves.
b. Either of a child’s parents may also obtain from the Department of State copies of the United States passport records relating to their child.
c. Either parent may request information about their child's U.S. passport, unless their parental rights have been legally terminated. To request information about a child’s passport, the parent should submit:
(1) A typed or clearly printed and notarized request, providing the child’s full name, date and place of birth, current address, and the reason for the request; and
(2) The estimated date of the passport’s issuance and any additional passport information that will enable the Department to conduct a full search.
d. If the parent would like an authenticated copy of the child’s passport records, refer them to the guidance on the Department of State, Bureau of Consular Affairs Internet home page about Obtaining Copies of Passport Records. See 7 FAM 1300 Appendix J Release of Information From Passport Files.
Passport Services Law Enforcement Liaison Division (CA/PPT/L/LE) processes requests for passport records from the general public, law enforcement, state and local agencies, as well as formal requests for passport files made under the Freedom of Information Act (FOIA - 5 U.S.C. 552) and the Privacy Act (PA - 5 U.S.C. 552a) upon referral from A/GIS.
7 FAM 1719.5-2 Cautioning Parents
When assisting parents with requests for information about their children’s passports or passport records, posts should also advise them that:
(1) Passport records do not include evidence of travel such as entrance/exit stamps, visas, residence permits, etc., since this information is entered into the passport book after issuance; and
(2) This process does not apply to foreign passports. A child who has or may have the citizenship of another country (which is often the case if one parent has a foreign nationality) may be eligible to hold, or be included in, a foreign passport in addition to a U.S. passport. The concerned parent may contact the embassy of the other nationality for information and assistance.
7 FAM 1719.6 Visa Records
The Department’s policies relating to release of visa information are contained in 9 FAM 603.2.
DO NOT RELEASE VISA RECORDS OR INFORMATION UNTIL YOU HAVE CHECKED 9 FAM AND CONFERRED WITH CA/VO and CA/OCS/L (ASK-OCS-L@state.gov) AS APPROPRIATE.
7 FAM 1719.7 Requests for Department or Post Testimony or Other Records
a. Refer inquirers to 22 CFR 172 Service of Process; Production or Disclosure of Official Information in Response to Court Orders, Subpoenas, Notices of Depositions, Requests for Admissions, Interrogatories, or Similar Requests or Demands in Connection With Federal or State Litigation; Expert Testimony (see 2 FAM 500, Legal Affairs).
b. CA/OCS officers and posts must consult CA/OCS/L (Ask-OCS-L@state.gov) for guidance concerning any U.S. or foreign subpoenas. Do not respond to subpoena demands directly. CA/OCS/L will coordinate with the Office of the Legal Adviser as appropriate and provide an advisory opinion on how to proceed.
7 FAM Exhibit 1713
Outgoing Hague Case Worksheet
Before you provide any LBP with specific information, and outline possible courses of action, you should first determine whether the case appears to be a Hague Case, Possible Hague Case or a Non-Hague Case. Often these factors require information not available at the initial inquiry, and will be made later in the history of the case.
Hague Return Case
CI in its role as U.S. Central Authority will normally accept a Hague application for return when all of the following questions are answered affirmatively:
· The child is under the age of sixteen.
· The child is known or presumed to have been taken to a Hague country.
· The Hague Treaty was in force between the United States and that country on or before the date of the abduction.
· The LBP wishes to file for return under the Hague Convention.
The Foreign Central Authority may require the applicant parent to provide evidence of the following:
· The child was habitually resident in the U.S. prior to the removal.
· The LBP had some form of rights of custody at the time of the removal beyond mere visitation rights.
· The LBP was apparently exercising those rights of custody at the time of removal.
· The abduction took place less than one year ago (with some exceptions), or LBP offers reasonable explanation for failure to apply under the Convention within one year.
Evidence that May be Required by the Receiving Foreign Central Authority
a. Right of Custody: The LBP may demonstrate rights of custody under the Convention with either a court order or by operation of law in the country of habitual residence. If the LBP does not have a court order clearly establishing custody, the case may still qualify as a Hague case under the following conditions:
(1) The LBP can show that he/she has custody rights under the laws of the state of habitual residence of the child. LBPs often provide a copy of the relevant statute and a copy of a birth certificate and/or marriage certificate if required.
(2) The court document awards sole or joint custody to the TP, but specifically prohibits removal of the child from the United States, or the state in the United States, or the Court’s jurisdiction. The LBP petitions for and receives an affirmative determination under Article 15 of the Hague Convention.
b. Exercising Right of Custody: If the LBP was NOT exercising his or her right to custody at the time of the removal, the case may still qualify as a Hague case provided:
The LBP can show he/she would have exercised custody rights but for the removal.
(Note: Deciding actual exercise or any other element of a Hague case is ultimately a judicial decision. When in doubt, assume that a case is provable.)
c. U.S. is the child’s Habitual Residence: If the LBP cannot provide convincing evidence of the child’s U.S. residence prior to the removal or wrongful retention, the case may still qualify as a Hague case provided:
· The LBP files for and a court grants a positive determination under Article 15 of the Hague Convention that the child’s habitual residence was the United States:
Note: Deciding any element of a Hague case is ultimately a judicial decision. When in doubt, assume that a case is provable.
d. Date of Removal: Even if the date of removal was more than one year from the date a parent files a Hague application, a court may hear the case and order a return under the Hague Convention. However, it is important to advise the LBP that there may be a court may deny return under Article 12 of the Hague Convention.