ALESSIA CHILD ABDUCTION PREVENTION ACT 2013
attached to the Immigration Bill 2013
We Need Your Voice to Pass this Bill
attached to the Immigration Bill 2013
We Need Your Voice to Pass this Bill
Pursuant to Articles 2 & 3 of the Hague Convention: Alessia's family proposes the following Resolution/Bill which recognizes the growing epidemic of International Child abductions and the increasing rate of non-compliance by Hague Convention Countries who ratified the Hague's International Treaty, known as 'The Hague Convention on the Civil Aspects of International Child Abduction' and signed at the Hague in 1980.
We need to find a sponsor to take Alessia's Bill to the House. Her proposed Bill (below) is important to not only ensure that a greater number of U.S. children will be returned during Hague Proceedings pursuant to Articles 3 14, & 15 of the Hague's 'Child Abduction Treaty'... but to ultimately PREVENT the growing epidemic of international child abduction and the Human-Trafficking of children from occurring in the first place.
PLEASE READ THE PROPOSED BILL BELOW AND THEN VOTE:
We need to find a sponsor to take Alessia's Bill to the House. Her proposed Bill (below) is important to not only ensure that a greater number of U.S. children will be returned during Hague Proceedings pursuant to Articles 3 14, & 15 of the Hague's 'Child Abduction Treaty'... but to ultimately PREVENT the growing epidemic of international child abduction and the Human-Trafficking of children from occurring in the first place.
PLEASE READ THE PROPOSED BILL BELOW AND THEN VOTE:
H.R. (tbd)
Alessia Child Abduction Prevention Act 2013
Alessia Child Abduction Prevention Act 2013
April 29, 2012
Representative/Senator/Congressman of Texas introduces the following Resolution to be placed before the Committee on Foreign Affairs, and in addition to the Committees on Ways and Means, the Judiciary, and to the Oversight and Government Reform for a period to be subsequently determined by the Speaker in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned;
A BILL
To ensure compliance of the 1980 Hague Convention on the Civil Aspects of International Child Abduction by countries the United States enjoys
reciprocal obligations with; to establish procedures for both the prevention and prompt return of children abducted to other countries; to reduce the alarming increase of international child abduction; to reduce unacceptable government and civilian spending associated with the epidemic of international child abduction, and to enforce action based on the recognition of the International Community and of the declarations made by Congress’s findings that the International abduction and retention of children is increasing and ‘is harmful to a child’s well-being'’ ; the United States of America implements the 'Alessia Child Abduction Prevention Act of 2013.'
42 U.S.C. § 11601: US Code - Section 11601: Findings and Declarations:
(a) Findings
Congress makes the following findings:
(1) The international abduction or wrongful retention of children is ‘harmful to their well-being.’
(2) Persons should ‘not be permitted’ to obtain custody of children by virtue of their wrongful removal or retention.
(3) International abductions and retentions of children ‘are increasing’, and only concerted cooperation pursuant to an international agreement can effectively combat this problem.
(4) The Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980, establishes legal rights and procedures for the prompt return of children wrongfully removed or retained, as well as for securing the exercise of visitation rights.
On August 2, 2012: Senators .S. Senator Barbara Boxer (D-CA) joined Senators Frank Lautenberg (D-NJ), John Kerry (D-MA), Richard Lugar (R-IN), James Inhofe (R-OK) and 10 colleagues to introduce a ‘bipartisan’ resolution condemning the unlawful international abduction of all children. That resolution calls on the United States and international community to take additional steps to resolve current and future abduction cases.
That resolution calls on all countries to fully comply with the Hague Abduction Convention and to take other steps to prevent and resolve cases of international parental child abduction. The resolution expresses the Sense of the Senate that the United States should “aggressively pursue the return of each child abducted by a parent from the United States to another country through all appropriate means, consistent with the Hague Abduction Convention, and through extradition, when appropriate, and facilitate access by the left-behind parent if the child is not returned.”
Secretary of State - John Kerry:
“International child abductions aren't faceless crimes, they're real and they're tragic,” then Senator Kerry said. “Over the last two years, I've gotten to know Colin Bower, a Massachusetts father who had full legal custody of his two young sons and whose life was ripped apart when they were abducted and taken to Egypt. We're still fighting and working to get his boys home and reunite them with their dad. If you know Colin, you know it’s almost a cliché to say that this is any parent’s worst nightmare and a tragic, all-too-real reminder of why the United States must condemn international abductions and work to resolve them. The international community must stand up and do all it can to make this right."
Senator Barbara Boxer:
“These abductions are devastating for the parent who is left behind and are extremely harmful to the children involved,” Senator Boxer said. “I have met parents who have not seen or heard from their children in years, and this is simply unacceptable. The international community must be united in its condemnation of child abduction and in its commitment to resolve custody disputes by rule of law.”
Senator Lugar:
“International child abduction is a tragic situation that impacts not only the parents who are left behind but also the children who have been illegally separated from them and denied any contact,” Senator Lugar said. “Bringing greater attention to this issue is important if we are to change other governments' attitudes to these abductions.”
Senator Inhofe:
“Conservatives and liberals rarely agree, but on the issue of these child abductions, we see eye to eye,” Senator Inhofe said. “Unfortunately, some countries around the world are complicit in allowing these unacceptable acts. The heart wrenching stories I have heard from parents is not just devastating for them, but destructive for the children. It is time for the Senate to act in a way that will help end this injustice. This well written measure is a high priority. I encourage my colleagues on both sides of the aisle to join in this effort.”
Senator Lautenberg:
"We saw firsthand the devastation that international child abductions cause for parents and children when New Jersey resident David Goldman had to fight for years to be reunited with his son Sean. We need to gain the support of countries around the world in condemning this practice and agreeing to cooperate in the return of abducted children. This resolution will help prevent these tragedies in the future," said Lautenberg, who was instrumental in helping the return of Sean Goldman from Brazil to his father in the United States.
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THE ALESSIA CHILD ABDUCTION PREVENTION ACT 2012
This resolution, introduced today, will further continue to raise the profile of this very important issue and offer a viable solution to stop; alternatively, to reduce the growing epidemic of internationally abducted children and child-trafficking from the United States as well as internationally.
Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled;
SECTION
1. SHORT TITLE.
This Act may be cited as the `Alessia Child Abduction Prevention Act of 2013.′
SEC.
2. FINDINGS; SENSE OF CONGRESS; PURPOSES.
(a) Findings - Congress finds the following:
(1) The U.S. Department of Justice reports:
· 797,500 children (younger than 18) were reported missing in a one-year period of time; studies resulting in an average of 2,185 children
being reported missing each day.
· 203,900 children were victims of family abductions.
· 58,200 children were victims of non-family abductions.
· 115 children were victims of “stereotypical” kidnapping. (These crimes involve someone the child does not know or someone of slight
acquaintance who holds the child overnight, transports the child 50 miles or more, kills the child, demands ransom or intends to keep the
child permanently.)
(2) The number of outgoing international child abductions reported to the Central Authority for the United States has increased by 60 percent since 2006. The most contributing factor to the successful abduction of American Children is the lack of exit controls when leaving this country with a minor child. The adult need only show a passport in the arriving country;
(3) The Department of State’s ‘Office of Children’s Issues’ serves as the Central Authority for the United States for operation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and is currently handling approximately 1,793 open cases involving more than 2,488 children abducted by a parent or legal guardian from the United States to other countries; many are never reported to the Department of State. For a variety of different reasons, ranging from legal and factual complexities of international parental abduction cases, the significant emotional and financial obstacles to recovering abducted children, to the most common problem in issuing Return Order of internationally abducted children – a foreign court’s national and or gender bias towards abducting parents and the manipulation of Hague's Abduction Treaty.
Foreign Judges are intentionally allowing Defendant’s to use a range of stalling and/or delaying tactics while Convention matters are before Courts in an effort to either emotionally and financially ware down the left-behind parents, or to artificially establish a non-return because the child had “settled in its (abducted) environment” and that sending the abducting parent and/or abducted child to their habitual residence would cause “psychological harm” to the abducting parent or child, and would put the child in an “intolerable situation.” Despite the very nature and spirit of the Convention conveyed within the Articles themselves, Courts are essentially allowing subjective standards to facilitate a foreign nations' [manipulation] of the Treaty to create a pretext for discretionary decisions that render the Convention largely ineffective to accomplish its true objective.
Turning to the wisdom of the scholarly source of interpretation for the Convention, 'The Explanatory Report', written by Professor E. Perez-Vera, specifically addresses these growing concerns. On deaf ears, the Professor cautions judicial authorities against their continued misuse of these Limited Defense strategies which only threaten to make the Convention little more than “a dead letter.” The Professor said as follows:
"It would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go [and no further]. This implies above all that they are to be interpreted in a [restrictive] fashion if the Convention is not to become ‘a dead letter.’[….] “In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the [best] way to combat them at an international level is to [refuse] to grant them legal recognition… As a result, a systematic invocation of these said exceptions, substituting the forum chosen by the abductor for that of the child's residence would lead to the [collapse of the whole structure] of the Convention by depriving it of the spirit of mutual confidence which is its inspiration."
(4) Tragically, international parental child abduction continues to be a common occurrence. According to the U.S. Department of State, last year 1,367 American children were reported abducted by a parent from the United States to a foreign country.
(5) In evaluating obstacles to recover children abducted in the United States, the first difficulty is presented by countries who are signatories to the Hague Convention but do not act in compliance with the responsibilities of the Convention. According to the Central Authority for the United States, St. Kitts and Nevis has not acted in compliance with terms it agreed to as Parties to the Hague Convention. Bermuda, Brazil, Bulgaria, Burkina Faso, Mexico, Honduras, and the Bahamas have also demonstrated patterns of noncompliance; as well as Greece, Italy France, Germany and United Kingdom with regards to the abduction of U.S. children.
(6) Counsel for The National Center for Missing and Exploited Children (NCMEC) submitted an Affidavit to a U.S. Court on behalf of Alessia Cohen-Hermer who was abducted to the United Kingdom; our closest ally, with very alarming findings:
“In 92% of active unresolved cases involving US Children taken to the United Kingdom, we have been seeking return of our children for one year or longer; and 38% remain [un]resolved for five years or longer, and only 14% of closed cases were recovered through law enforcement action between the US and the UK.”
The United Kingdom refused to return Alessia to the United States in one of the most flagrant misuses of the Convention since its inception. Texas Police recovered a laptop the abducting mother left-behind which "confirmed a conspiracy to kidnap the child from the United States." The Detective burned a DVD video of the laptop's inspection and submitted it to the Central Authorities of both countries, along with a four page letter outlining the abductor’s deception. Two Texas Senators and a Texas House Representative each wrote to the British Judge, outlining laws that were broken prior to the abductor leaving the country with the child. The family purchased round-trip tickets. Several Texas retailers, including the child’s physician, submitted affidavits confirming the family was “going on vacation.” The British judge refused to allow over 100 pages of evidence attached to the Texas father’s Hague Application pursuant to Article 30 of the Hague Convention, despite ‘letters of concern’ written directly by the Department of State and confirmed by UK Central Authority, stating “ Mr. Hermer correctly submitted his evidence pursuant to Article 30 of the Hague Convention.” The Department of State subsequently re-attached Hermer's evidence and submitted again to the U.K Central Authority, but to no avail. Instead, the British Judge labeled Hermer a “fantasist” in his judgment and wrote that Mr. Hermer was “not living in reality for suggesting that his family was going on vacation.” The British judge dragged Hermer’s case out for TEN months with one adjournment after another for a variety of different reasons, including taking a vacation, until ultimately refusing to return Alessia home. Both Mr. Hermer's Human Rights and his Constitutional Right of Due Process for a fair and impartial trial were also breached when the British Court refused to give Mr. Hermer ('permission') to appeal and or to adduce any evidence to show the foreign judgment had been procured by fraud or the Trail Court's violation of Article 30 of the Hague Convention.
Mr. Hermer immediately filed a Motion in the United States to Dismiss the Foreign Judgment on grounds it had been procured by fraud, violated Hague Convention Article 30, and ultimately his human rights of Due Process for a fair & impartial Trial. An ‘Offer of Proof’ was submitted on behalf of Mr. Hermer:
"Newly discovered evidence corroborated by the U.S. Department of State, the U.S. Office of Children’s Issues, FBI, the Department of Health & Human Services, and Plano Police Department 'confirms' conspiracy to kidnap the child, to deceive the Petitioner and not return the child to the United States." Therefore, the foreign judgment is subject to non-recognition: "The United States is entitled to exercise jurisdiction over the Child, as her entry into, her remaining in, and her jurisdiction in the United Kingdom were perpetrated by 'Unjustifiable Conduct'."
After hearing irrefutable evidence, the Texas Court issued Orders “Declining to Recognize the Foreign Judgment" and found that "Pursuant to the Hague Convention, only the United States of America had Exclusive Jurisdiction of the Child and the Parties, and ORDERED the American child to be immediately returned to the United States." Alessia was not returned. Mr. Hermer turned to Congress & the Senate for help.
(7) Failure of countries to meet their treaty obligations has been illustrated by the actions of their designated Central Authorities as well as by the actions of foreign judiciaries, reflected in their legal process and bias decisions for failure to enforce or effectuate the purpose and objectives of the Hague Convention. Argentina, Australia, Austria, Costa Rica, France, Germany, Honduras, Hungary, Israel, Mexico, Romania, South Africa, Spain, Switzerland, Turkey and now the United Kingdom have all failed to enforce return and or access orders of American children. This is unacceptable.
(8) The European Union (EU) has successfully implemented EU Council Regulation NO 2201/2003 on November 2003 as a ‘check and balance’ to ensure all EU Member States comply with the Convention’s purpose and objective. To ensure the prompt return of European children abducted to other countries in the EU, in particular the effect of Article 11(8) whereby a Convention non-return order in the EU could always be trumped by a subsequent order made by authorities in the child’s habitual residence.” a system which holds all European countries accountable to ‘rightfully’ return a child from where they were ‘wrongfully’ removed:
This EU Regulation specifically states in its Introduction Para (17);
‘In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.’ Thus the UK and other (European) Countries enjoy a very strong rate of compliance and the return of their children.
THEREFORE: this Resolution today, calls on all countries to join and fully comply with the Hague Abduction Convention and to take all steps to prevent and resolve international parental child abduction. This Resolution expresses the sense of the Senate and Congress that the United States should “aggressively pursue the return of each child abducted by a parent from the United States to another country through all appropriate means, consistent with the Hague Abduction Convention, and through extradition when appropriate, and to facilitate access by the left-behind parent when the child is not returned.”
(10) In evaluating and assessing the problem of the abduction of children from the United States, the Central Authority for the United States in fiscal year 2010 reported that it had been provided notice of 384 cases of parental abductions involving 523 children taken from the United States to countries with which the United States does not enjoy an agreement related to the treatment of parental abduction cases and that are either not signatories to EU or the Hague Convention, currently included are abduction and access cases with a cumulative total of 156 children in Japan, 94 children in India, 60 children in Brazil, and 29 children in Russia.
(11) Unfortunately, the number of reported cases likely represents an even smaller percentage of the total number of United States children impacted, as the process for location and recovery of abducted children differs significantly with each country, and there is currently no formal protocol for intervening in such cases.
THE AFFECT OF NON-RETURN IS EXTREMELY HARMFUL TO CHILDREN
(12) 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.’
(13) 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, their own personal relationships, and parenting.
(14) Left behind parents encounter substantial psychological, emotional, and financial problems, and the majority have no means to generate the enormous financial resources required to pursue individual civil or criminal remedies to attempt to secure the return of their children, even if such remedies were available or effective in foreign courts or political systems. Left-behind parents also often have to pursue child custody and other protective orders through expensive litigation at home.
THERE ARE NO EXIT CONTROLS WHEN LEAVING THE UNITED STATES
(b) Sense of Congress-
(1) Although international child abduction is not a new problem, the incidence of abductions continues to grow with the ease of international travel, the increase in bi-cultural marriages and the rise in overall divorce rates. The principal object of the Convention ‘is to protect children from the harmful effects of cross-border abductions (and wrongful retentions) by providing a procedure designed to bring about prompt return of such children to the State of their habitual residence - as well as procedures to prevent their abduction in the first place.
(2) In evaluating and assessing the single biggest factor in the abduction of children from the United States, there are currently no exit controls when leaving this country. While this is an acceptable arrangement of travel for adults, there is nothing to protect the wrongful removal of a minor child (which the Hague Convention defines to be under the age of 16) from the safety of our borders within the United States.
(3) It is therefore the sense of Congress to implement LAW to stop the wrongful removal of children from the United States from occurring in the first place, as well as to ensure their prompt return if abducted to another signatory country pursuant to Hague Convention Articles 3, 14, and 15 respectively:
Article 3
"The removal or the retention of a child is to be considered wrongful where:
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and;
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."
Article 14
In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
Article 15
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.
(4) As a signatory to the Hague Convention, the United States is itself obliged by Article 2 of the Convention "to take all appropriate measures to secure within their territories the implementation of the objects of the Convention." The Preamble of the Convention further stresses this same language, calling for member states to "establish procedures to ensure their prompt return to the State of their habitual residence."
(5) It is therefore the DUTY of Congress that the United States take [all] appropriate measures to protect its most precious citizens and to set a strong example for other Convention countries by establishing (more effective) procedures that lead to the return of children wrongly removed and or retained to or from the United States and to also establish more effective procedures that will ultimately prevent child abductions in the first place.
(6) The implementation of this Resolution will clearly meet those requirements, because they irrefutably establish the United States’ Law of the Child's Prior Habitual Residence’ pursuant to Article 3 of the Hague Convention. As such, this Resolution would have a dramatic effect on Hague proceedings in foreign countries because they would be compelled to return U.S. children pursuant to the Hague’s Article requirements since they clearly define the Laws of the United States when children are wrongfully removed [or retained] from our borders.
(7) The implementation of this Resolution would also have a dramatic effect on trafficking of (non-parental) kidnappings, as it would make it much more difficult for the kidnapper to take a minor child out of the United States without a notarized ‘Alessia Child Abduction Prevention Form’ (herein referred to as an ACAP Form).
(c) Purposes- The purposes of this Act are to–
(1) Recognize previously established findings by Congress and the international community that abductions are ‘harmful to a child’s well-being’ and therefore the United Stated is obliged to establish more effective procedures to both prevent their wrongful removal and to ensure their prompt return if abducted to other countries;
(2) Eliminate the fear of parents who believe their children were ‘going on vacation’ with the other parent; as well as those of military parents stationed abroad;
(3) Establish a (more effective) mechanism to prevent the wrongful removal of children under the age of 16 from or to the United States. Congress will find that the costs to effectuate this Resolution are completely attainable, because the majority of costs fall on the responsibility of Parents wishing to travel to or from the United States;
SPECIFICALLY; the U.S. Department of State will:
(a) Create an 'Alessia Child Abduction Prevention Act (ACAP) Form' that can be easily downloaded from the 'travel.state.gov' website, as well as those of every Airline or Cruise Ship that intends to leave or enter U.S. Borders and Territories. The ACAP Form will require the signature and notarization of both parents [or legal guardians] as to: (1) the purpose of a minor child or children’s travel outside or into the United States; and (2) the ACAP Form will require firm declaration as to the child’s or children's habitual residence prior to exit or entry from the United States and (3) TAA will not allow children under the age of 16 to pass security checkpoints without the ACAP Form in the same manner they would refuse Passenger entry or exit without proper form of ID.
(b) The ACAP Form will make aware to parents or legal guardians traveling with children under the age of 16 of the rising number of International Parental Kidnappings each year and of the definition (and consequences) of the International Parental Kidnaping and Crime Act as well as the refusal to enter the United States without the ACAP Form;
(c) The U.S. Department of State will coordinate ease of access to the ACAP Form from multiple sources; specifically transportation authorities, travel agencies, airports, travel websites, and all airline and cruise websites;
(d) Parents and legal guardians not travelling with the child will be instructed to keep a copy of the notarized ACAP Form in the United States in the event an abduction were to occur;
(e) In the same manner that a Passport or other form of ID is necessary to travel; any child passenger under the age of 16 without a properly executed ACAP Form, will [not] be permitted to enter or leave the United States;
(f) In the event one of the parents [or legal guardian] of the child(ren) are deceased, incapacitated, or otherwise not involved in conservatorship with the subject child, a Court Order of sole custody or sole conservatorship of the child or children will also be clearly listed on the ACAP Form as a 'required' document to obtain the notary's signature;
(g) In the event a child abduction occurs - attaching the 'Notarized Declaration' made on the ACAP Form clearly outlines the purpose of travel and asserts the child or children's habitual residence. This simple document will dramatically affect the outcome of Hague proceedings to promptly return children to their habitual residence pursuant to Convention Articles 3, 5, 11, 12, 14 & 15 because the ACAP Form requirement will become the Law of the United States with respect to entry and leave of children under the age of 16 as defined by the Convention and no court can manipulate this requirement;
(h) In the event an abduction occurs and the ACAP Form exists, the Central Authority shall attach the ACAP Form to the Application with a request to return the Child pursuant to Article 3 and Article 12 of the Hague Convention. If no ACAP Form exists, the child must be returned to the prior habitual residence pursuant to the Hague Convention;
(i) In the event the Hague mechanism fails regarding the return of U.S. children, the United States is obliged to protect its citizens by implementing extradition procedures through the International Parental Kidnapping Crime Act 1993 (18 U.S.C. 1204) as well as the consideration of sanctions, and any other actions defined by the David and Sean Goldman Act, because the Laws of the United States regarding the travel of children under the age of 16 were not met or violated pursuant to the Hague Convention;
(j) Pursuant to The National Child Search Assistance Act (42 U.S.C. 5779, 5780) law enforcement shall immediately ‘and without delay’ enter the child into the National Crime Information Center (NCIC) database and a UFAP warrant be issued immediately against the abductor. The intent of this law is to ensure law enforcement disseminates as quickly as possible any information vital to the recovery of a missing child or fleeing abductor;
(k) State authorities shall assist Federal Authorities with extradition procedures to ensure the Child is returned to its prior ‘Home State’ jurisdiction defined pursuant by Federal Law: [28 USCS § 1738A (b)(4)] and by State Law defined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA):
UNDER FEDERAL LAW: 28 USCS § 1738A (b)(4)
(b)(4) "Home State" means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period.
UNDER STATE LAW (THE UCCJEA)
UNIFORM CHILD CUSTODY JURSIDICTION AND ENFORCEMENT ACT
(i.e. TEX FAM CODE §152.201):
‘(a) Except as otherwise provided in §152.204, a court of this State has jurisdiction to make an initial child custody determination only if:
(1) this State is Home-State of the child on the date of the commencement of the proceeding or [was] home-state of the child within six months before commencement of said proceeding and child is absent from this State but a parent or person acting as parent continues to live in this State;
(2) A court of another state does [not] have jurisdiction under Subdivision (1); or a court of the Home-State of the child declined to exercise jurisdiction on grounds this State is the more appropriate forum under Section 152.207 or 152.208, and:
(A) the child and child's parents, or child and at least one parent, or person acting as a parent,
have a significant connection with this State - other than mere physical presence; and;
(B) substantial evidence is available in this State concerning child's care, protection, training, and personal
relationships;
(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody
determination by a court of this State;
(c) Physical presence of, or personal jurisdiction over, a party or child is [not] necessary or sufficient
to make a child custody determination.
SEC. 3. DEFINITIONS.
In this Act:
(1) APPROPRIATE CONGRESSIONAL COMMITTEES- Except as otherwise
provided, 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.
(2) CENTRAL AUTHORITY FOR THE UNITED STATES- The term `Central
Authority for the United States’ has the meaning pursuant to Article 6 of the
Convention on the Civil Aspects of International Child Abduction, done at The
Hague on October 25, 1980.
(3) HAGUE CONVENTION- The term `Hague Convention’ means the Convention
on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980.
(4) HAGUE CONVENTION COMPLIANCE REPORT- The term `Hague
Convention compliance report’ means the annual report on compliance with the
Hague Convention required to be submitted by the Department of State to Congress
under section 2803 of the Foreign Affairs Reform and Restructuring Act of 1998
(42 U.S.C. 11611).
(5) HAGUE CONVENTION SIGNATORY- The term `Hague Convention
signatory’ means a country that signed or acceded to the Convention and with
which the United States has entered into a reciprocal agreement with.
(6) MOU COUNTRY- The term `MOU country’ means a country or entity in which the
United States has entered into a memorandum of understanding to resolve cases of
international child abduction. Such MOUs shall include –
(A) identification of a specific protocol designed to establish and effectuate the urgent return of children abducted from the United States, not later than six weeks after date of the application for return of child having been received by the agency authorized for such purposes;
(B) identification of specific protocols for the establishment and protection of rights of interim and ongoing parental access between children and their parents;
(C) identification of an official entity within the government possessing authority to facilitate the resolution of child abduction cases i n cooperation with the Office on International Child Abductions and left-behind parents in the United States;
(D) identification of the judicial or administrative agency possessing the authority to facilitate the prompt adjudication of a request for the return of an abducted child to the United States;
(E) identification of a law enforcement agency and available mechanisms and procedures to investigate and assist in the location, protection, and retrieval of an abducted child and to ensure the immediate enforcement of orders entered by the court in the habitual residence to return an abducted child to the United States;
(F) establishment and documentation of welfare and whereabouts visits between a United States embassy and a wrongfully removed or retained child;
(G) additional requisite elements that shall be satisfied and maintained for purposes of section 201(b) as determined by the Secretary of State.
(7) NONSIGNATORY COUNTRY- The term `nonsignatory country’ means a country which is neither a Hague Convention signatory nor a MOU country to which a United States child has been abducted or in which a United States child remains wrongfully retained.
(8) OFFICE- The term `Office’ means the Office on International Child Abductions established pursuant to section 101.
(9) PATTERN OF NONCOOPERATION- The term `pattern of noncooperation’ means a national government’s systemic failure, evidenced by the existence of ten or more parental child abduction cases which, after having been properly prepared and transmitted by the Central Authority for the United States remain unresolved within its borders after 18 months or, where there are fewer than ten unresolved cases, any cases still unresolved after nine months from the time of receipt and transmittal by the Central Authority for the United States of a request to fulfill its international obligations with respect to the prompt resolution of cases of child abduction.
(10) RIGHTS OF ACCESS- The term `rights of access’ means the rights of a parent and child to enjoy reasonable unfettered contact both within and outside the State of the child’s habitual residence.
(11) UNRESOLVED ABDUCTION CASE- The term `unresolved abduction case’ means an abduction case which has been properly documented to establish that pursuant to the law of the State of habitual residence of a minor child, an international abduction or wrongful retention of such child whose habitual residence immediately prior to the abduction was the United States, remains unresolved more than two months following the date of the receipt and transmittal by the Central Authority for the United States of the request for return of such child.
(12) UNRESOLVED ACCESS CASE- The term `unresolved access case’ means an application for the establishment of rights of parental access on either an interim or permanent basis, or the request for the enforcement of rights of parental access (contact orders) which have been previously established by a court of competent jurisdiction, which remain unresolved more than two months following the date of the receipt and transmittal by the Central Authority for the United States of a request for assistance in the organization of rights of access.
Representative/Senator/Congressman of Texas introduces the following Resolution to be placed before the Committee on Foreign Affairs, and in addition to the Committees on Ways and Means, the Judiciary, and to the Oversight and Government Reform for a period to be subsequently determined by the Speaker in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned;
A BILL
To ensure compliance of the 1980 Hague Convention on the Civil Aspects of International Child Abduction by countries the United States enjoys
reciprocal obligations with; to establish procedures for both the prevention and prompt return of children abducted to other countries; to reduce the alarming increase of international child abduction; to reduce unacceptable government and civilian spending associated with the epidemic of international child abduction, and to enforce action based on the recognition of the International Community and of the declarations made by Congress’s findings that the International abduction and retention of children is increasing and ‘is harmful to a child’s well-being'’ ; the United States of America implements the 'Alessia Child Abduction Prevention Act of 2013.'
42 U.S.C. § 11601: US Code - Section 11601: Findings and Declarations:
(a) Findings
Congress makes the following findings:
(1) The international abduction or wrongful retention of children is ‘harmful to their well-being.’
(2) Persons should ‘not be permitted’ to obtain custody of children by virtue of their wrongful removal or retention.
(3) International abductions and retentions of children ‘are increasing’, and only concerted cooperation pursuant to an international agreement can effectively combat this problem.
(4) The Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980, establishes legal rights and procedures for the prompt return of children wrongfully removed or retained, as well as for securing the exercise of visitation rights.
On August 2, 2012: Senators .S. Senator Barbara Boxer (D-CA) joined Senators Frank Lautenberg (D-NJ), John Kerry (D-MA), Richard Lugar (R-IN), James Inhofe (R-OK) and 10 colleagues to introduce a ‘bipartisan’ resolution condemning the unlawful international abduction of all children. That resolution calls on the United States and international community to take additional steps to resolve current and future abduction cases.
That resolution calls on all countries to fully comply with the Hague Abduction Convention and to take other steps to prevent and resolve cases of international parental child abduction. The resolution expresses the Sense of the Senate that the United States should “aggressively pursue the return of each child abducted by a parent from the United States to another country through all appropriate means, consistent with the Hague Abduction Convention, and through extradition, when appropriate, and facilitate access by the left-behind parent if the child is not returned.”
Secretary of State - John Kerry:
“International child abductions aren't faceless crimes, they're real and they're tragic,” then Senator Kerry said. “Over the last two years, I've gotten to know Colin Bower, a Massachusetts father who had full legal custody of his two young sons and whose life was ripped apart when they were abducted and taken to Egypt. We're still fighting and working to get his boys home and reunite them with their dad. If you know Colin, you know it’s almost a cliché to say that this is any parent’s worst nightmare and a tragic, all-too-real reminder of why the United States must condemn international abductions and work to resolve them. The international community must stand up and do all it can to make this right."
Senator Barbara Boxer:
“These abductions are devastating for the parent who is left behind and are extremely harmful to the children involved,” Senator Boxer said. “I have met parents who have not seen or heard from their children in years, and this is simply unacceptable. The international community must be united in its condemnation of child abduction and in its commitment to resolve custody disputes by rule of law.”
Senator Lugar:
“International child abduction is a tragic situation that impacts not only the parents who are left behind but also the children who have been illegally separated from them and denied any contact,” Senator Lugar said. “Bringing greater attention to this issue is important if we are to change other governments' attitudes to these abductions.”
Senator Inhofe:
“Conservatives and liberals rarely agree, but on the issue of these child abductions, we see eye to eye,” Senator Inhofe said. “Unfortunately, some countries around the world are complicit in allowing these unacceptable acts. The heart wrenching stories I have heard from parents is not just devastating for them, but destructive for the children. It is time for the Senate to act in a way that will help end this injustice. This well written measure is a high priority. I encourage my colleagues on both sides of the aisle to join in this effort.”
Senator Lautenberg:
"We saw firsthand the devastation that international child abductions cause for parents and children when New Jersey resident David Goldman had to fight for years to be reunited with his son Sean. We need to gain the support of countries around the world in condemning this practice and agreeing to cooperate in the return of abducted children. This resolution will help prevent these tragedies in the future," said Lautenberg, who was instrumental in helping the return of Sean Goldman from Brazil to his father in the United States.
##
THE ALESSIA CHILD ABDUCTION PREVENTION ACT 2012
This resolution, introduced today, will further continue to raise the profile of this very important issue and offer a viable solution to stop; alternatively, to reduce the growing epidemic of internationally abducted children and child-trafficking from the United States as well as internationally.
Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled;
SECTION
1. SHORT TITLE.
This Act may be cited as the `Alessia Child Abduction Prevention Act of 2013.′
SEC.
2. FINDINGS; SENSE OF CONGRESS; PURPOSES.
(a) Findings - Congress finds the following:
(1) The U.S. Department of Justice reports:
· 797,500 children (younger than 18) were reported missing in a one-year period of time; studies resulting in an average of 2,185 children
being reported missing each day.
· 203,900 children were victims of family abductions.
· 58,200 children were victims of non-family abductions.
· 115 children were victims of “stereotypical” kidnapping. (These crimes involve someone the child does not know or someone of slight
acquaintance who holds the child overnight, transports the child 50 miles or more, kills the child, demands ransom or intends to keep the
child permanently.)
(2) The number of outgoing international child abductions reported to the Central Authority for the United States has increased by 60 percent since 2006. The most contributing factor to the successful abduction of American Children is the lack of exit controls when leaving this country with a minor child. The adult need only show a passport in the arriving country;
(3) The Department of State’s ‘Office of Children’s Issues’ serves as the Central Authority for the United States for operation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and is currently handling approximately 1,793 open cases involving more than 2,488 children abducted by a parent or legal guardian from the United States to other countries; many are never reported to the Department of State. For a variety of different reasons, ranging from legal and factual complexities of international parental abduction cases, the significant emotional and financial obstacles to recovering abducted children, to the most common problem in issuing Return Order of internationally abducted children – a foreign court’s national and or gender bias towards abducting parents and the manipulation of Hague's Abduction Treaty.
Foreign Judges are intentionally allowing Defendant’s to use a range of stalling and/or delaying tactics while Convention matters are before Courts in an effort to either emotionally and financially ware down the left-behind parents, or to artificially establish a non-return because the child had “settled in its (abducted) environment” and that sending the abducting parent and/or abducted child to their habitual residence would cause “psychological harm” to the abducting parent or child, and would put the child in an “intolerable situation.” Despite the very nature and spirit of the Convention conveyed within the Articles themselves, Courts are essentially allowing subjective standards to facilitate a foreign nations' [manipulation] of the Treaty to create a pretext for discretionary decisions that render the Convention largely ineffective to accomplish its true objective.
Turning to the wisdom of the scholarly source of interpretation for the Convention, 'The Explanatory Report', written by Professor E. Perez-Vera, specifically addresses these growing concerns. On deaf ears, the Professor cautions judicial authorities against their continued misuse of these Limited Defense strategies which only threaten to make the Convention little more than “a dead letter.” The Professor said as follows:
"It would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go [and no further]. This implies above all that they are to be interpreted in a [restrictive] fashion if the Convention is not to become ‘a dead letter.’[….] “In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the [best] way to combat them at an international level is to [refuse] to grant them legal recognition… As a result, a systematic invocation of these said exceptions, substituting the forum chosen by the abductor for that of the child's residence would lead to the [collapse of the whole structure] of the Convention by depriving it of the spirit of mutual confidence which is its inspiration."
(4) Tragically, international parental child abduction continues to be a common occurrence. According to the U.S. Department of State, last year 1,367 American children were reported abducted by a parent from the United States to a foreign country.
(5) In evaluating obstacles to recover children abducted in the United States, the first difficulty is presented by countries who are signatories to the Hague Convention but do not act in compliance with the responsibilities of the Convention. According to the Central Authority for the United States, St. Kitts and Nevis has not acted in compliance with terms it agreed to as Parties to the Hague Convention. Bermuda, Brazil, Bulgaria, Burkina Faso, Mexico, Honduras, and the Bahamas have also demonstrated patterns of noncompliance; as well as Greece, Italy France, Germany and United Kingdom with regards to the abduction of U.S. children.
(6) Counsel for The National Center for Missing and Exploited Children (NCMEC) submitted an Affidavit to a U.S. Court on behalf of Alessia Cohen-Hermer who was abducted to the United Kingdom; our closest ally, with very alarming findings:
“In 92% of active unresolved cases involving US Children taken to the United Kingdom, we have been seeking return of our children for one year or longer; and 38% remain [un]resolved for five years or longer, and only 14% of closed cases were recovered through law enforcement action between the US and the UK.”
The United Kingdom refused to return Alessia to the United States in one of the most flagrant misuses of the Convention since its inception. Texas Police recovered a laptop the abducting mother left-behind which "confirmed a conspiracy to kidnap the child from the United States." The Detective burned a DVD video of the laptop's inspection and submitted it to the Central Authorities of both countries, along with a four page letter outlining the abductor’s deception. Two Texas Senators and a Texas House Representative each wrote to the British Judge, outlining laws that were broken prior to the abductor leaving the country with the child. The family purchased round-trip tickets. Several Texas retailers, including the child’s physician, submitted affidavits confirming the family was “going on vacation.” The British judge refused to allow over 100 pages of evidence attached to the Texas father’s Hague Application pursuant to Article 30 of the Hague Convention, despite ‘letters of concern’ written directly by the Department of State and confirmed by UK Central Authority, stating “ Mr. Hermer correctly submitted his evidence pursuant to Article 30 of the Hague Convention.” The Department of State subsequently re-attached Hermer's evidence and submitted again to the U.K Central Authority, but to no avail. Instead, the British Judge labeled Hermer a “fantasist” in his judgment and wrote that Mr. Hermer was “not living in reality for suggesting that his family was going on vacation.” The British judge dragged Hermer’s case out for TEN months with one adjournment after another for a variety of different reasons, including taking a vacation, until ultimately refusing to return Alessia home. Both Mr. Hermer's Human Rights and his Constitutional Right of Due Process for a fair and impartial trial were also breached when the British Court refused to give Mr. Hermer ('permission') to appeal and or to adduce any evidence to show the foreign judgment had been procured by fraud or the Trail Court's violation of Article 30 of the Hague Convention.
Mr. Hermer immediately filed a Motion in the United States to Dismiss the Foreign Judgment on grounds it had been procured by fraud, violated Hague Convention Article 30, and ultimately his human rights of Due Process for a fair & impartial Trial. An ‘Offer of Proof’ was submitted on behalf of Mr. Hermer:
"Newly discovered evidence corroborated by the U.S. Department of State, the U.S. Office of Children’s Issues, FBI, the Department of Health & Human Services, and Plano Police Department 'confirms' conspiracy to kidnap the child, to deceive the Petitioner and not return the child to the United States." Therefore, the foreign judgment is subject to non-recognition: "The United States is entitled to exercise jurisdiction over the Child, as her entry into, her remaining in, and her jurisdiction in the United Kingdom were perpetrated by 'Unjustifiable Conduct'."
After hearing irrefutable evidence, the Texas Court issued Orders “Declining to Recognize the Foreign Judgment" and found that "Pursuant to the Hague Convention, only the United States of America had Exclusive Jurisdiction of the Child and the Parties, and ORDERED the American child to be immediately returned to the United States." Alessia was not returned. Mr. Hermer turned to Congress & the Senate for help.
(7) Failure of countries to meet their treaty obligations has been illustrated by the actions of their designated Central Authorities as well as by the actions of foreign judiciaries, reflected in their legal process and bias decisions for failure to enforce or effectuate the purpose and objectives of the Hague Convention. Argentina, Australia, Austria, Costa Rica, France, Germany, Honduras, Hungary, Israel, Mexico, Romania, South Africa, Spain, Switzerland, Turkey and now the United Kingdom have all failed to enforce return and or access orders of American children. This is unacceptable.
(8) The European Union (EU) has successfully implemented EU Council Regulation NO 2201/2003 on November 2003 as a ‘check and balance’ to ensure all EU Member States comply with the Convention’s purpose and objective. To ensure the prompt return of European children abducted to other countries in the EU, in particular the effect of Article 11(8) whereby a Convention non-return order in the EU could always be trumped by a subsequent order made by authorities in the child’s habitual residence.” a system which holds all European countries accountable to ‘rightfully’ return a child from where they were ‘wrongfully’ removed:
This EU Regulation specifically states in its Introduction Para (17);
‘In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.’ Thus the UK and other (European) Countries enjoy a very strong rate of compliance and the return of their children.
THEREFORE: this Resolution today, calls on all countries to join and fully comply with the Hague Abduction Convention and to take all steps to prevent and resolve international parental child abduction. This Resolution expresses the sense of the Senate and Congress that the United States should “aggressively pursue the return of each child abducted by a parent from the United States to another country through all appropriate means, consistent with the Hague Abduction Convention, and through extradition when appropriate, and to facilitate access by the left-behind parent when the child is not returned.”
(10) In evaluating and assessing the problem of the abduction of children from the United States, the Central Authority for the United States in fiscal year 2010 reported that it had been provided notice of 384 cases of parental abductions involving 523 children taken from the United States to countries with which the United States does not enjoy an agreement related to the treatment of parental abduction cases and that are either not signatories to EU or the Hague Convention, currently included are abduction and access cases with a cumulative total of 156 children in Japan, 94 children in India, 60 children in Brazil, and 29 children in Russia.
(11) Unfortunately, the number of reported cases likely represents an even smaller percentage of the total number of United States children impacted, as the process for location and recovery of abducted children differs significantly with each country, and there is currently no formal protocol for intervening in such cases.
THE AFFECT OF NON-RETURN IS EXTREMELY HARMFUL TO CHILDREN
(12) 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.’
(13) 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, their own personal relationships, and parenting.
(14) Left behind parents encounter substantial psychological, emotional, and financial problems, and the majority have no means to generate the enormous financial resources required to pursue individual civil or criminal remedies to attempt to secure the return of their children, even if such remedies were available or effective in foreign courts or political systems. Left-behind parents also often have to pursue child custody and other protective orders through expensive litigation at home.
THERE ARE NO EXIT CONTROLS WHEN LEAVING THE UNITED STATES
(b) Sense of Congress-
(1) Although international child abduction is not a new problem, the incidence of abductions continues to grow with the ease of international travel, the increase in bi-cultural marriages and the rise in overall divorce rates. The principal object of the Convention ‘is to protect children from the harmful effects of cross-border abductions (and wrongful retentions) by providing a procedure designed to bring about prompt return of such children to the State of their habitual residence - as well as procedures to prevent their abduction in the first place.
(2) In evaluating and assessing the single biggest factor in the abduction of children from the United States, there are currently no exit controls when leaving this country. While this is an acceptable arrangement of travel for adults, there is nothing to protect the wrongful removal of a minor child (which the Hague Convention defines to be under the age of 16) from the safety of our borders within the United States.
(3) It is therefore the sense of Congress to implement LAW to stop the wrongful removal of children from the United States from occurring in the first place, as well as to ensure their prompt return if abducted to another signatory country pursuant to Hague Convention Articles 3, 14, and 15 respectively:
Article 3
"The removal or the retention of a child is to be considered wrongful where:
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and;
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."
Article 14
In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
Article 15
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.
(4) As a signatory to the Hague Convention, the United States is itself obliged by Article 2 of the Convention "to take all appropriate measures to secure within their territories the implementation of the objects of the Convention." The Preamble of the Convention further stresses this same language, calling for member states to "establish procedures to ensure their prompt return to the State of their habitual residence."
(5) It is therefore the DUTY of Congress that the United States take [all] appropriate measures to protect its most precious citizens and to set a strong example for other Convention countries by establishing (more effective) procedures that lead to the return of children wrongly removed and or retained to or from the United States and to also establish more effective procedures that will ultimately prevent child abductions in the first place.
(6) The implementation of this Resolution will clearly meet those requirements, because they irrefutably establish the United States’ Law of the Child's Prior Habitual Residence’ pursuant to Article 3 of the Hague Convention. As such, this Resolution would have a dramatic effect on Hague proceedings in foreign countries because they would be compelled to return U.S. children pursuant to the Hague’s Article requirements since they clearly define the Laws of the United States when children are wrongfully removed [or retained] from our borders.
(7) The implementation of this Resolution would also have a dramatic effect on trafficking of (non-parental) kidnappings, as it would make it much more difficult for the kidnapper to take a minor child out of the United States without a notarized ‘Alessia Child Abduction Prevention Form’ (herein referred to as an ACAP Form).
(c) Purposes- The purposes of this Act are to–
(1) Recognize previously established findings by Congress and the international community that abductions are ‘harmful to a child’s well-being’ and therefore the United Stated is obliged to establish more effective procedures to both prevent their wrongful removal and to ensure their prompt return if abducted to other countries;
(2) Eliminate the fear of parents who believe their children were ‘going on vacation’ with the other parent; as well as those of military parents stationed abroad;
(3) Establish a (more effective) mechanism to prevent the wrongful removal of children under the age of 16 from or to the United States. Congress will find that the costs to effectuate this Resolution are completely attainable, because the majority of costs fall on the responsibility of Parents wishing to travel to or from the United States;
SPECIFICALLY; the U.S. Department of State will:
(a) Create an 'Alessia Child Abduction Prevention Act (ACAP) Form' that can be easily downloaded from the 'travel.state.gov' website, as well as those of every Airline or Cruise Ship that intends to leave or enter U.S. Borders and Territories. The ACAP Form will require the signature and notarization of both parents [or legal guardians] as to: (1) the purpose of a minor child or children’s travel outside or into the United States; and (2) the ACAP Form will require firm declaration as to the child’s or children's habitual residence prior to exit or entry from the United States and (3) TAA will not allow children under the age of 16 to pass security checkpoints without the ACAP Form in the same manner they would refuse Passenger entry or exit without proper form of ID.
(b) The ACAP Form will make aware to parents or legal guardians traveling with children under the age of 16 of the rising number of International Parental Kidnappings each year and of the definition (and consequences) of the International Parental Kidnaping and Crime Act as well as the refusal to enter the United States without the ACAP Form;
(c) The U.S. Department of State will coordinate ease of access to the ACAP Form from multiple sources; specifically transportation authorities, travel agencies, airports, travel websites, and all airline and cruise websites;
(d) Parents and legal guardians not travelling with the child will be instructed to keep a copy of the notarized ACAP Form in the United States in the event an abduction were to occur;
(e) In the same manner that a Passport or other form of ID is necessary to travel; any child passenger under the age of 16 without a properly executed ACAP Form, will [not] be permitted to enter or leave the United States;
(f) In the event one of the parents [or legal guardian] of the child(ren) are deceased, incapacitated, or otherwise not involved in conservatorship with the subject child, a Court Order of sole custody or sole conservatorship of the child or children will also be clearly listed on the ACAP Form as a 'required' document to obtain the notary's signature;
(g) In the event a child abduction occurs - attaching the 'Notarized Declaration' made on the ACAP Form clearly outlines the purpose of travel and asserts the child or children's habitual residence. This simple document will dramatically affect the outcome of Hague proceedings to promptly return children to their habitual residence pursuant to Convention Articles 3, 5, 11, 12, 14 & 15 because the ACAP Form requirement will become the Law of the United States with respect to entry and leave of children under the age of 16 as defined by the Convention and no court can manipulate this requirement;
(h) In the event an abduction occurs and the ACAP Form exists, the Central Authority shall attach the ACAP Form to the Application with a request to return the Child pursuant to Article 3 and Article 12 of the Hague Convention. If no ACAP Form exists, the child must be returned to the prior habitual residence pursuant to the Hague Convention;
(i) In the event the Hague mechanism fails regarding the return of U.S. children, the United States is obliged to protect its citizens by implementing extradition procedures through the International Parental Kidnapping Crime Act 1993 (18 U.S.C. 1204) as well as the consideration of sanctions, and any other actions defined by the David and Sean Goldman Act, because the Laws of the United States regarding the travel of children under the age of 16 were not met or violated pursuant to the Hague Convention;
(j) Pursuant to The National Child Search Assistance Act (42 U.S.C. 5779, 5780) law enforcement shall immediately ‘and without delay’ enter the child into the National Crime Information Center (NCIC) database and a UFAP warrant be issued immediately against the abductor. The intent of this law is to ensure law enforcement disseminates as quickly as possible any information vital to the recovery of a missing child or fleeing abductor;
(k) State authorities shall assist Federal Authorities with extradition procedures to ensure the Child is returned to its prior ‘Home State’ jurisdiction defined pursuant by Federal Law: [28 USCS § 1738A (b)(4)] and by State Law defined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA):
UNDER FEDERAL LAW: 28 USCS § 1738A (b)(4)
(b)(4) "Home State" means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period.
UNDER STATE LAW (THE UCCJEA)
UNIFORM CHILD CUSTODY JURSIDICTION AND ENFORCEMENT ACT
(i.e. TEX FAM CODE §152.201):
‘(a) Except as otherwise provided in §152.204, a court of this State has jurisdiction to make an initial child custody determination only if:
(1) this State is Home-State of the child on the date of the commencement of the proceeding or [was] home-state of the child within six months before commencement of said proceeding and child is absent from this State but a parent or person acting as parent continues to live in this State;
(2) A court of another state does [not] have jurisdiction under Subdivision (1); or a court of the Home-State of the child declined to exercise jurisdiction on grounds this State is the more appropriate forum under Section 152.207 or 152.208, and:
(A) the child and child's parents, or child and at least one parent, or person acting as a parent,
have a significant connection with this State - other than mere physical presence; and;
(B) substantial evidence is available in this State concerning child's care, protection, training, and personal
relationships;
(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody
determination by a court of this State;
(c) Physical presence of, or personal jurisdiction over, a party or child is [not] necessary or sufficient
to make a child custody determination.
SEC. 3. DEFINITIONS.
In this Act:
(1) APPROPRIATE CONGRESSIONAL COMMITTEES- Except as otherwise
provided, 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.
(2) CENTRAL AUTHORITY FOR THE UNITED STATES- The term `Central
Authority for the United States’ has the meaning pursuant to Article 6 of the
Convention on the Civil Aspects of International Child Abduction, done at The
Hague on October 25, 1980.
(3) HAGUE CONVENTION- The term `Hague Convention’ means the Convention
on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980.
(4) HAGUE CONVENTION COMPLIANCE REPORT- The term `Hague
Convention compliance report’ means the annual report on compliance with the
Hague Convention required to be submitted by the Department of State to Congress
under section 2803 of the Foreign Affairs Reform and Restructuring Act of 1998
(42 U.S.C. 11611).
(5) HAGUE CONVENTION SIGNATORY- The term `Hague Convention
signatory’ means a country that signed or acceded to the Convention and with
which the United States has entered into a reciprocal agreement with.
(6) MOU COUNTRY- The term `MOU country’ means a country or entity in which the
United States has entered into a memorandum of understanding to resolve cases of
international child abduction. Such MOUs shall include –
(A) identification of a specific protocol designed to establish and effectuate the urgent return of children abducted from the United States, not later than six weeks after date of the application for return of child having been received by the agency authorized for such purposes;
(B) identification of specific protocols for the establishment and protection of rights of interim and ongoing parental access between children and their parents;
(C) identification of an official entity within the government possessing authority to facilitate the resolution of child abduction cases i n cooperation with the Office on International Child Abductions and left-behind parents in the United States;
(D) identification of the judicial or administrative agency possessing the authority to facilitate the prompt adjudication of a request for the return of an abducted child to the United States;
(E) identification of a law enforcement agency and available mechanisms and procedures to investigate and assist in the location, protection, and retrieval of an abducted child and to ensure the immediate enforcement of orders entered by the court in the habitual residence to return an abducted child to the United States;
(F) establishment and documentation of welfare and whereabouts visits between a United States embassy and a wrongfully removed or retained child;
(G) additional requisite elements that shall be satisfied and maintained for purposes of section 201(b) as determined by the Secretary of State.
(7) NONSIGNATORY COUNTRY- The term `nonsignatory country’ means a country which is neither a Hague Convention signatory nor a MOU country to which a United States child has been abducted or in which a United States child remains wrongfully retained.
(8) OFFICE- The term `Office’ means the Office on International Child Abductions established pursuant to section 101.
(9) PATTERN OF NONCOOPERATION- The term `pattern of noncooperation’ means a national government’s systemic failure, evidenced by the existence of ten or more parental child abduction cases which, after having been properly prepared and transmitted by the Central Authority for the United States remain unresolved within its borders after 18 months or, where there are fewer than ten unresolved cases, any cases still unresolved after nine months from the time of receipt and transmittal by the Central Authority for the United States of a request to fulfill its international obligations with respect to the prompt resolution of cases of child abduction.
(10) RIGHTS OF ACCESS- The term `rights of access’ means the rights of a parent and child to enjoy reasonable unfettered contact both within and outside the State of the child’s habitual residence.
(11) UNRESOLVED ABDUCTION CASE- The term `unresolved abduction case’ means an abduction case which has been properly documented to establish that pursuant to the law of the State of habitual residence of a minor child, an international abduction or wrongful retention of such child whose habitual residence immediately prior to the abduction was the United States, remains unresolved more than two months following the date of the receipt and transmittal by the Central Authority for the United States of the request for return of such child.
(12) UNRESOLVED ACCESS CASE- The term `unresolved access case’ means an application for the establishment of rights of parental access on either an interim or permanent basis, or the request for the enforcement of rights of parental access (contact orders) which have been previously established by a court of competent jurisdiction, which remain unresolved more than two months following the date of the receipt and transmittal by the Central Authority for the United States of a request for assistance in the organization of rights of access.