International Abduction Related Family Laws - United States

A summary of applicable International Treaties, Federal Laws, Uniform State Laws and Individual State Laws

The information here is accumulated from various past (now missing) and present US State Department website pages and some original work by Japan CRN.  The best US State Dept source that is still available is the References, Laws and Reading Lists page.

International Treaties

Hague Convention on the Civil Aspects of International Child Abduction ("Hague Abduction Convention"), 19 I.L.M. 1501 (1980)

A. Adopted by unanimous vote of member states of the Hague Conference on October 25, 1980, and entered into force in the U.S. on July 1, 1988, with the enactment of implementing legislation, see International Child Abduction Remedies Act, 42 U.S. C. §~l1601-l16l0 (1989)("ICARA").

B. Offers expeditious remedy of return of child to country of habitual residence so that authorities in that State may adjudicate the custody dispute between the parties.

1. Under ICARA, Hague application may be brought in state or federal court in place where child is located.

C. Convention sets forth limited defenses, on which bases a court can refuse to return a child.

1. Defenses are to be construed narrowly in order to achieve objective of return of child to habitual residence.

D. Convention does not provide for jurisdiction to hear custody matters. If return of the child to another Contracting State is not required by the Convention, then power to hear custody case will be determined under that state’s own jurisdictional rules.

Federal Laws

Missing Children Act - 28 USC 534

Requires law enforcement to enter complete descriptions of missing children into the National Crime Information Center’s (NCIC) Missing Person File, even if the abductor has not been charged with a crime.

National Child Search Assistance Act - 42 USC 5779 & 5780

Mandates elimination of waiting periods before law enforcement takes a missing child report, including family abduction cases; Requires immediate entry of information into the NCIC Missing Person file; Requires close liaison with the National Center for Missing and Exploited Children (NCMEC).

International Child Abduction Remedies Act (ICARA) - 42 USC 11601 et seq.

Establishes procedures to implement the Hague Convention. Empowers state and federal courts to hear cases under the Convention and allows the Central Authority access to information in certain American records regarding the location of a child and abducting parent.

Parental Kidnapping Prevention Act (PKPA) - 28 U.S.C. §1 738A, enacted in 1980

Requires authorities of every state to enforce and not modify orders made by the state court exercising proper jurisdiction and made consistently with standards set forth in the statute. Authorizes the use of the Unlawful Flight to Avoid Prosecution (UFAP) warrant and the Federal Parent Locator Service (FPLS) in family abductions.

Home state of the child (if there is one) has jurisdiction to hear a custody case and retains jurisdiction to modify that order (with limited exceptions).

PKPA is a "full faith and credit" provision only, and does not give jurisdiction to the lower federal courts.

PKPA does not apply in international cases.

 

International Parental Kidnapping Crime Act (IPKCA) - 18 U.S.C. §1204 enacted in December 1993.

A. Imposes penalties for removal or retention of child from the U.S. with intent to obstruct lawful exercise of parental rights.  Makes it a federal felony to remove a child under 16 from the United States, or to retain a child outside the United States with the intent to obstruct the lawful exercise of parental rights.

Fugitive Felon Act - 18 USC 1073

Enhances the ability of states to pursue abductors beyond state and national borders; Permits the FBI to investigate cases that would otherwise be under state jurisdiction and authorizes use of UFAP warrants in parental kidnapping cases.

Extradition Treaties Interpretation Act - Note 18 USC 3181 - enacted in 1998.

Authorizes the United States to interpret extradition treaties listing "kidnapping" as encompassing the offense of parental kidnapping.

Uniform State Laws

The Uniform Child Abduction Prevention Act (UCAPA)

This is a proposed uniform state law on child abduction, including international child abduction. It seems to incorporate most of the same clauses as the Texans and California laws, against citizens of countries like Japan who have not signed the Hague Convention, facilitate child abduction and harbor the abductors.  This law will make it easier to get court orders to prevent a Japanese parent from taking a child back to Japan.  As more Japanese parents are forced to stay in the US (rather than abduct their children to Japan) and Japanese grandparents are not able to see their grandchildren in Japan, they will ask their politicians to change the laws.   According to their website, as of June 9, 2007, several states listed below have adopted this law, and it has been introduced in these states: Connecticut, Michigan, South Carolina, Texas, US Virgin Islands.  Write your state politicians and demand that they support this law!!

Uniform Child Custody Jurisdiction Act (UCCJA) (9 ULA at 123)  Determines when a state has jurisdiction to make a custody order and provides procedures for interstate enforcement of orders in custody conflicts.

As of 1997, adopted in all fifty states, Washington D.C., and the Virgin Islands. Replaced in some states by UCCJEA (see below).

Provides basic framework for determining initial jurisdiction to make child custody orders ("home state" and "significant connection" jurisdiction) and provides for recognition of custody orders made consistently with these jurisdictional standards.

Most states, but not all, have included Section 23, which extends the general policies of the Act to international cases.

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (9 ULA at 115 (Part 1)

Enhances the UCCJA by awarding priority to the child’s home state, clarifies the limits of emergency jurisdiction, and grants exclusive jurisdiction to the state making the original custody determination. As of June 2007, adopted by 46 states.

Adopted in twenty-one states and pending in others.

"Home state" jurisdiction to be the exclusive basis of jurisdiction (if a "home state" exists), making it consistent with the federal Parental Kidnapping Prevention Act, 28 U.S.C. §1738A.

State that makes a decree has continuing exclusive jurisdiction to modify.

Clarifies that jurisdiction and enforcement provisions apply in international cases.

It seems that many/most state laws considers a foreign country equivalent to a US state for UCCJEA.   But a state (e.g. New York) may also have an exception in the case of a country that violates human rights in family law cases. Service of process in Japan goes thru the ministry of foreign affairs, then various courts up to .  If you can prove personal service in Japan a US court will usually continue, but you will likely have problems with getting any result recognized in Japan.

Individual State Laws

• ALABAMA: The Alabama Relocation Statue contains the following relevant clauses. (copy of Alabama Relocation Statute Ala. Code § 30-3-160)
  • 30-3-160. Short title This article shall be known and may be cited as the " Alabama Parent-Child Relationship Protection Act" and promotes the general philosophy in this state that children need both parents, even after a divorce, established in Section 30-3-150.
  • 30-3-169.3. Custody considerations. In determining whether a proposed or actual change of principal residence of a minor child should cause a change in custody of that child, a court shall take into account all factors affecting the child, including, but not limited to, the following:...(13) Whether or not the proposed new residence of a child is to a foreign country whose public policy does not normally enforce the visitation rights of non-custodial parents, which does not have an adequately functioning legal system, or which otherwise presents a substantial risk of specific and serious harm to the child.
  • 30-3-169.5. Security requirements If on final hearing the change of principal residence of a child is permitted, the court may require the person seeking to change the principal residence of a child to provide reasonable security guaranteeing that the custody of and visitation with the child will not be interrupted or obstructed by the relocating party.

• CALIFORNIA: The California Family code section 3048 (aka the Synclair/Cannon Act) is designed to bring to a court's attention the red flags of child abduction during a custody/visitation hearing and provide measures of abduction prevention that the court could implement.  (full copy here)

  • In cases in which the court becomes aware of facts which may indicate that there is a risk of abduction of a child, the court shall, either on its own motion or at the request of a party, determine whether measures are needed to prevent the abduction of the child by one parent....To determine whether there is a risk of abduction, the court shall consider the following factors: (among others)
    • Whether a party has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of the right of custody or of visitation of a person.
    • Whether a party lacks strong ties to this state.
    • Whether a party has strong familial, emotional, or cultural ties to another state or country, including foreign citizenship.
    • Whether a party has engaged in planning activities that would facilitate the removal of a child from the state, including quitting a job, selling his or her primary residence, terminating a lease, closing a bank account, liquidating other assets, hiding or destroying documents, applying for a passport, applying to obtain a birth certificate or school or medical records, or purchasing airplane or other travel tickets, with consideration given to whether a party is carrying out a safety plan to flee from domestic violence.
  • Various remedies are allowed, such as requiring supervised visitation, posting of a bond, travel restraining order against travel outside the county state or country, confiscating passports, restraining order against applying for new passports, requiring notification of the Japanese embassy and consulates and providing proof of notification, obtaining a court order from Japan with identical terms before traveling to Japan.

• COLORADO - Has adopted the Uniform Child Abduction Prevention Act, but we do not have a link to the law yet.

• LOUISIANA - Has adopted the Uniform Child Abduction Prevention Act, but we do not have a link to the law yet. (The scope was limited to international abduction cases.)

• KANSAS - Has adopted the Uniform Child Abduction Prevention Act, but we do not have a link to the law yet.

• NEBRASKA - Has adopted the Uniform Child Abduction Prevention Act, but we do not have a link to the law yet.

• NEVADA - Has adopted the Uniform Child Abduction Prevention Act, but we do not have a link to the law yet.

• NEW YORK - This is not really a law targeting international abduction, but it may be useful to gain jurisdiction in some instances, such as if you want to get an emergency temporary custody order for your children or even argue permanent jurisdiction despite a habitual residence in Japan or even simultaneous proceedings going on in Japan. The Section 75 of the Domestic Relations Law treats a foreign country as a state for purposes of UCCJEA except under two conditions. 

S 75-d. International application of article.
1. A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this title and title two of this article.

2. Except as otherwise provided in subdivision three of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this article must be recognized and enforced under title three of this article.

3. A court of this state need not apply this article if the child custody law of a foreign country as written or as applied violates fundamental principles of human rights.

The argument that the foreign country violates human rights has been made for some Islamic countries, for example where there are laws that the child belongs to the mother until a certain age after which it belongs to the father. This violates basic US legal principles. This could also have to do with comity, reciprocity, and whether courts in Japan follow same standards. Various materials on this website may help make these arguments.  (Contact us if you need help gathering this information.) If the country is not considered a state, then Article 76 of Domestic Relations law applies -- if no court of any other state would have exclusive continuing jurisdiction.

• OREGON: 109.035  Security required before foreign travel with child.  An excellent law, very close to the current version of the Uniform Child Abduction Prevention Act that is in progress. (copy of 109.035 is here)

• SOUTH DAKOTA - Has adopted the Uniform Child Abduction Prevention Act, but we do not have a link to the law yet.

• TENNESSEE: The "Move Away Code" TN 36-6-108 contains the following restriction on a parent being allowed to move away:  (Copy of TN 36-6-108 is here.)

  • The parent "...shall be permitted to relocate with the child unless ...The relocation would pose a threat of specific and serious harm to the child which outweighs the threat of harm to the child of a change of custody."  It then goes on to say that "Specific and serious harm to the child shall include, but is not limited to, the following:...
    • If the proposed relocation is to a foreign country whose public policy does not normally enforce the visitation rights of non-custodial parents, which does not have an adequately functioning legal system or which otherwise presents a substantial risk of specific and serious harm to the child."

• TEXAS: Family Code Chapter 153, contains Subchapter I. PREVENTION OF INTERNATIONAL PARENTAL CHILD ABDUCTION, with the following articles. (Copy of full text here.)

  • Article 153.501 NECESSITY OF MEASURES TO PREVENT INTERNATIONAL PARENTAL CHILD ABDUCTION. allows a state court to consider in a civil domestic suit "measures to prevent international parental child abduction" which include
    • the risk of international abduction of the child by a parent of the child based on the court's evaluation of the risk factors described by Section 153.502;
    • any obstacles to locating, recovering, and returning the child if the child is abducted to a foreign country;
  • 153.502.  ABDUCTION RISK FACTORS.  Upon finding a risk factor (go read that part carefully) the courts may consider as a factor, whether the foreign country:
    • is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction;
    • presents obstacles to the recovery and return of a child who is abducted to the country from the United States;
    • has any legal mechanisms for immediately and effectively enforcing an order regarding the possession of or
      access to the child issued by this state;
    • has local laws or practices that would: enable the parent to prevent the child's
      other parent from contacting the child without due cause;
    • provides for the extradition of a parental abductor and the return of the child to the United States
  • 153.503.  ABDUCTION PREVENTION MEASURES.  This lists various possibilities including confiscating passports, travel restrictions, supervised visitation, notices to the Japanese embassies and consulates, deposit a bond, etc.

• UTAH - Has adopted the Uniform Child Abduction Prevention Act, but we do not have a link to the law yet.

• Washington

  • Title 26 RCW - Domestic Relations Law in particular RCW 26.27.051 : International application of chapter.

    (1) A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying Articles 1 and 2.
    
    (2) Except as otherwise provided in subsection (3) of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced under Article 3. [a lofty legal bar, but see our section on educating judges to help show that Japan does not make determinations in substantial conformity with this or likely any other state laws.]
    
    (3) A court of this state need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights. [another lofty bar, but see our section on issues and the report to the United Nations on the Convention on the Rights of the Child for help in clearing it.]

Unsigned But Related International Treaties

Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, adopted October 19, 1996 (Hague Convention on the Protection of Minors)