Sean and David Goldman International Child Abduction Prevention and Return Act of 2013
A BILL
To ensure compliance with the 1980 Hague Convention on the Civil Aspects of International Child Abduction by countries with which the United States enjoys reciprocal obligations, to establish procedures for the prompt return of children abducted to other countries, and for other purposes.
2. Findings; sense of Congress; purposes
Findings— Congress finds the following:
Sean Goldman, a United States citizen and resident of New Jersey, was abducted from the United States in 2004 and separated from his father, David Goldman, who spent nearly six years battling for the return of his son from Brazil before Sean was finally returned to Mr. Goldman’s custody on December 24, 2009.
The Department of State’s Office of Children’s Issues, which serves as the Central Authority of the United States for the purposes of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, has received thousands of requests since 2007 for assistance in the return to the United States of children who have been abducted by a parent or other legal guardian to another country. For a variety of reasons reflecting the significant obstacles to the recovery of abducted children, as well as the legal and factual complexity involving such cases, not all cases are reported to the Central Authority of the United States.
The number of outgoing international child abductions reported to the Central Authority of the United States has increased substantially since 2006.
Only about half of the children abducted from the United States to countries with which the United States enjoys reciprocal obligations under the Hague Abduction Convention are returned to the United States.
The United States and Convention countries have expressed their desire, through the Hague Abduction Convention, “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.”.
Compliance by the United States and Convention countries depends on the actions of their designated central authorities, the performance of their judiciaries as reflected in the legal process and decisions rendered to enforce or effectuate the Hague Abduction Convention, and the ability and willingness of their law enforcement to insure the swift enforcement of orders rendered pursuant to the Hague Abduction Convention.
The Central Authority of the United States reports that nearly 40 percent of abduction cases and access cases involve children taken from the United States to countries with which the United States does not have Hague Abduction Convention obligations or other agreements relating to the resolution of abduction cases and access cases.
According to the Department of State’s April 2010 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, “parental child abduction jeopardizes the child and has substantial long-term consequences for both the child and the left-behind parent.”.
Abducted children are at risk of serious emotional and psychological problems and have been found to experience anxiety, eating problems, nightmares, mood swings, sleep disturbances, aggressive behavior, resentment, guilt and fearfulness, and as adults may struggle with identity issues, personal relationships, and parenting.
Left-behind parents may encounter substantial psychological and emotional problems, and few have the extraordinary financial resources necessary to pursue individual civil or criminal remedies in both the United States and a foreign country, even where available, or to engage in repeated foreign travel to attempt to procure the return of their children by evoking diplomatic and humanitarian remedies.
Left-behind parents who are military parents may be unable to leave their military duties to pursue multinational litigation or take leave to attend multiple court proceedings, and foreign authorities may not schedule proceedings to accommodate such duties.
Sense of Congress— It is the sense of Congress that the United States should set a strong example for Convention countries in the timely location and return of abducted children in the United States whose habitual residence is not the United States.
Purposes— The purposes of this Act are to—
protect children whose habitual residence is the United States from the harmful effects of abduction and to assist left-behind parents to have access to their abducted child in a safe and predictable manner, wherever the child is located, while an abduction case is pending;
provide left-behind parents, including military parents, their advocates, and judges the information they need to enhance the resolution of abduction cases and access cases through established legal procedures, the tools for assessing the risk of abduction and denial of rights of access, and the practical means for overcoming obstacles to recovering an abducted child;
establish measured, effective, and predictable actions to be undertaken by the President on behalf of abducted children whose habitual residence is the United States at the time of the abduction;
promote an international consensus that it is in the interest of children to have any issues related to their care and custody determined in the country of their habitual residence;
provide the necessary training for officials of the United States Armed Forces and the Department of Defense to establish policies and provide services to military parents that address the unique circumstances of abductions and violations of rights of access that may occur with regard to military dependent children; and
encourage the effective implementation of international mechanisms, particularly those established pursuant to the Hague Abduction Convention, to achieve reciprocity in the resolution of abductions and to protect children from the harmful effects of an abduction.
3. Definitions
In this Act:
Abducted child— The term abducted child means a child who is the victim of an abduction.
Abduction— The term abduction means—
the alleged wrongful removal of a child from the child’s country of habitual residence;
the alleged wrongful retention of a child outside the child’s country of habitual residence; or
the alleged wrongful removal or retention of a military dependent child from the exercise of rights of custody of a military parent.
Abduction case— The term abduction case means a case involving an application filed with the Central Authority of the United States by a left-behind parent for the resolution of an abduction.
Access case— The term access case means a case involving an application filed with the Central Authority of the United States by a left-behind parent for the establishment of rights of access.
Annual Report— The term Annual Report means the Annual Report on International Child Abduction required under section 101.
Application— The term application means—
in the case of a Convention country, the application required pursuant to article 8 of the Hague Abduction Convention;
in the case of an MOU country, the formal document required pursuant to the provisions of the applicable MOU to request the return of an abducted child or to request rights of access, as applicable; and
in the case of a nonparty country, the formal request by the Central Authority of the United States to the Central Authority of such country requesting the return of an abducted child or for rights of access to an abducted child.
Appropriate congressional committees— The term appropriate congressional committees means the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate.
Central Authority— The term Central Authority means—
in the case of a Convention country, the meaning given such term in article 6 of the Hague Abduction Convention;
in the case of an MOU country, the official entity designated by the government of the MOU country within the applicable MOU pursuant to section 103(b)(1) to discharge the duties imposed on the entity in such MOU; and
in the case of a nonparty country, the foreign ministry of such country.
Child— The term child means an individual who has not attained the age of 16.
Convention country— The term Convention country means a country other than the United States that has ratified, acceded, or succeeded to the Hague Abduction Convention and with respect to which the United States has entered into a reciprocal agreement pursuant to the Hague Abduction Convention.
Hague Abduction Convention— The term Hague Abduction Convention means the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980.
Left-behind parent— The term left-behind parent means—
regarding an abduction, an individual or entity, either individually or jointly, who alleges that an abduction has occurred that is in breach of rights of custody—
attributed to such individual or entity, as applicable; and
exercised at the time of the abduction or that would have been exercised but for the abduction; and
regarding rights of access, an individual with rights of custody who is requesting establishment of rights of access or who alleges that rights of access are being denied.
Legal residence— The term legal residence means the congressional district and State in which an individual either is residing, or if an individual is residing temporarily outside the United States, the congressional district and State to which the individual intends to return.
Military dependent child— The term military dependent child means a child whose habitual residence is the United States according to United States law even though the child is residing outside the United States with a military parent.
Military parent— The term military parent means an individual who has rights of custody over a child and who is serving outside the United States as a member of the United States Armed Forces.
MOU— The term MOU means a memorandum of understanding between the United States and a country that is not a Convention country to resolve abduction cases and rights of access cases in accordance with section 104.
MOU country— The term MOU country means a country with respect to which the United States has entered into an MOU.
Nonparty country— The term nonparty country means a country that is neither a Convention country nor an MOU country.
Pattern of noncooperation—
In general— The term pattern of noncooperation means the persistent failure—
of a Convention country to implement and abide by the provisions of the Hague Abduction Convention;
of an MOU Country to implement and abide by the provisions of the applicable MOU; and
of a nonparty country to cooperate with the United States to expeditiously resolve abduction cases and access cases within a reasonable period of time.
Criteria— Such persistent failure may be evidenced by one or more of the following criteria:
The existence of 10 or more unresolved cases.
The failure of the Central Authority of the country to fulfill its responsibilities pursuant to the Hague Abduction Convention or the MOU, as applicable, or in the case of a nonparty country, the repeated failure of the Central Authority of the country to cooperate with the Central Authority of the United States to resolve unresolved cases.
The failure of the judicial or administrative branch, as applicable, of the national government of the country to implement and comply with the provisions of the Hague Abduction Convention or the MOU, as applicable, or in the case of a nonparty country, the failure of the appropriate judicial or administrative branch of the national government of the country to expeditiously deliberate and render a decision in abduction cases and access cases.
The failure of law enforcement to locate abducted children or to enforce return orders or determinations of rights of access rendered by the judicial or administrative authorities of the national government of the country in abduction cases or access cases.
Rights of access— The term rights of access means the rights of contact between a child and a left-behind parent that may arise—
as a provisional measure while an abduction case is pending; and
by operation of law or by reason of judicial or administrative determination or by agreement having legal effect under the law of the country in which the child is located.
Rights of custody— The term rights of custody means rights of care and custody of an abducted child, including the right to determine the place of residence of an abducted child—
attributed to an individual or entity, either individually or jointly, and
arising by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect,
Unresolved abduction case—
In general— Subject to subparagraph (B), the term unresolved abduction case means an abduction case that remains unresolved for a period that exceeds 6 weeks after the date on which the application for return of the child is submitted for determination to the judicial or administrative authority, as applicable, in the country in which the child is located.
Resolution of case— An abduction case shall be considered to be resolved if—
the child is returned to the country of habitual residence, pursuant to the Hague Abduction Convention or MOU, if applicable;
the judicial or administrative branch, as applicable, of the national government of the country in which the child is located has implemented and is complying with the provisions of the Hague Abduction Convention or the MOU, as applicable, and a final determination is made by such judicial or administrative branch that the child will not be returned to the country of habitual residence; or
the child attains the age of 16.
Unresolved access case—
In general— Subject to subparagraph (B), the term unresolved access case means an access case that remains unresolved for a period that exceeds 6 weeks after the date on which the application for the establishment of rights of access is submitted to the judicial or administrative authority, as applicable, in the country in which the child is located.
Resolution of case— An access case shall be considered to be resolved if—
rights of access are established for the left-behind parent and such parent is allowed access to the child in accordance with such rights;
a final determination is made by the appropriate administrative or judicial entity in the country in which the child is located that the left-behind parent does not have rights of access and the United States Central Authority concludes that such determination is in accordance with applicable international standards; or
the abduction case related to the unresolved access case is resolved.
Unresolved cases— The term unresolved cases means unresolved abduction cases and unresolved access cases.
4. Funding
Amounts necessary to carry out this Act shall be taken out of the discretionary funds available to the Secretary of State for each of the fiscal years 2014 through 2018.