From the Family Law Letter: Child Custody

International Child Abduction

Fidel Castro may have helped this mother. But could simple precautions have prevented this two year chase through Egypt, Spain, and Cuba?

Like the Elian Gonzalez case, in reverse?

On June 27, Cornelia Streeter of Topsfield, Massachusetts flew out of Havana bound for Boston with her daughter and son, ages 7 and 9, ending a nightmare that started when her ex-husband abducted the children two years earlier. Ms. Streeter was reunited with her children after Cuban authorities arrested the father, Anwar Wissa, who took the children first to his native Egypt, then to Spain, and finally to a yacht in Havana Harbor. Fidel Castro is reported to have intervened after confirming that the mother had been awarded sole custody by Massachusetts courts. If he ever returns to the United States, Wissa is expected to be prosecuted for kidnapping and other crimes. (Boston Globe, June 28, 2003, page A7)
It took this mother many months, no doubt filed with anguish, to reclaim her children. Could some simple precautions have prevented this international abduction?

Any divorcing parent whose spouse is a native of another country must evaluate and address the risk of international abduction of children. And in such cases, there is no substitute for the advice and counsel of an experienced family lawyer who can raise this issue and discuss preventive measures. Here are some steps divorcing parents and their attorneys should consider in such cases.

A parent may prevent the issuance of passports to children at risk of abduction through the United States Department of State, Office of Children’s Issues. This State Department office formulates, develops and coordinates policies and programs and provides direction to foreign service posts on international parental child abduction and international adoption, and fulfills U.S. treaty obligations relating to child abduction. Under federal law, both parents now are required to execute any passport application for a minor child under age 14, and the Office of Children’s Issues can list the child in a passport look-out database to alert the custodial parent if a passport application is filed.

Where children’s passports have already been issued, a divorcing parent can seek to have them held in escrow by the court or the parent’s attorney. Further, a parent can seek language in the divorce decree making him or her the sole guardian of such passports and providing that the other parent may not remove the children from the United States without permission of the court.

Where a divorcing parent has a suspicion that the other parent may attempt to take children abroad, the parent can go to court with his or her attorney for an ex parte (emergency) order, usually issued the same day, preventing the other parent from departing with the children. Such an order would be enforceable by police and federal officials through the State Department and can stop the children from boarding a flight even though there are usually no exit controls for American citizens leaving the United States.

As of this writing, fifty-two countries including the United States are signatories to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Convention was designed to help prevent international abductions and to establish procedures to ensure that, in the event of wrongful removal or retention, the child is returned promptly to the home country. The Convention can be very helpful to parents seeking return of their children, but their task can still be difficult and take much time to accomplish. Incidentally, Spain is a signatory to the Convention but Egypt and Cuba are not.

Yet in returning Ms. Streeter’s children, Cuba tied its actions to US cooperation in the Elian Gonzales case three years earlier under the Hague Convention. “Cuba will never forget that when 5-year-old Elian Gonzalez was kidnapped by relatives who had no custody rights, more than 80 percent of the North Americans supported his return to Cuba, where his father and family resided,” the government said (Reuters, June 25, 2003). In that case, Mary A. Ryan, U. S. Assistant Secretary of State for Consular Affairs, wrote in a statement referencing the Hague convention “that the six-year-old Cuban child, Elian Gonzalez Brotons, should be returned to his father in Cuba. The Department of State would expect a foreign government to make the same decision with respect to an American child in Elian Gonzalez Brotons’ circumstances.” (Declaration released by the Bureau of Consular Affairs, Department of State, April 6, 2000).

Any parent who is concerned about a child who may be at risk of international abduction, or who has been abducted, should consult an attorney experienced in family law. This firm has experience in international abduction and Hague Convention matters.