Yes, under U.S. law, international parental child abduction is a Federal crime. The International Parental Kidnapping Crime Act, 18 U.S.C. 1204,makes it a criminal offense to remove or retain a child who has been living in the United States to a foreign country with the intent to obstruct the lawful exercise of parental rights. Such an offense is punishable by a fine, imprisonment for not more than three years, or both. In addition, interference with a parent's rights of custody is a felony in every state. We take wrongful removal or retention of a child very seriously.
The United States has two separate court systems, a Federal court system and a State court system. Both types of courts have authority to hear a Hague Abduction Convention case, as established by the International Child Abduction Remedies Act, 42 USC 11603. You and your attorney will need to decide together whether to file a petition for return of your child under the Hague Abduction Convention in State or Federal court.
No two States are exactly alike when it comes to the organization of the courts. Each state is free to adopt any organizational scheme it chooses, to name those courts, and to establish the scope of the courts’ jurisdiction. Generally, however, State courts consist of trial courts and appellate courts. Some courts also have established specialized family courts within their trial courts. Trial courts are the court of first instance and would be the first court to hear a Convention case within the State court system.
Although the U.S. Supreme Court has ruled that a person facing criminal prosecution in the United States is entitled to free legal representation, there is no such right to free legal representation in civil (non-criminal) cases. In addition, the United States objected to the section in the Convention that requires countries to provide free legal representation to left-behind parents. Therefore, parents seeking return of or access to their children under the Convention must themselves bear the cost of the litigation. Beyond attorney fees, costs may include court filing fees and payment for translation services.
Because there is no right to counsel in civil cases in the United States, the Office of Children’s Issues maintains a network of attorneys willing to provide legal assistance in incoming Convention cases for a reduced fee or no fee, depending on the applicant's financial situation. Income-eligible Hague applicants may submit a request for pro bono (no fee) or reduced fee legal assistance. Our office will attempt to develop a list of attorneys who may be willing to provide representation. This list may include private attorneys and legal aid attorneys. There is never a guarantee that an attorney will volunteer to take the case. Upon request, our office can also provide a list of full fee attorneys to applicants and respondents in incoming Hague Convention cases.
Each U.S. State sets its own rules for admission to the bar in its State. In most States, an attorney must have a law degree from an approved law school, must pass an exam administered by their State Bar. Some States have additional requirements. Once an individual meets all of the State’s requirements, the State bar will issue him/her a license to practice law in that particular State. Some attorneys may be licensed to practice in more than one State. If you choose a lawyer that is not licensed in the State where you want to file your case, your lawyer may request special permission from the court to appear in your case.
Membership in a State Bar does not automatically entitle an attorney to practice before U.S. Federal Courts. An attorney must apply to each Federal Court for admission to appear and plead before the court.
You have a right to represent yourself in your Convention case. To do so, you will typically need to file papers with the appropriate court clerk’s office, informing the court that you will be representing yourself. Representing yourself in court can be very difficult. The legal process is complex and can be confusing. The Office of Children’s Issues recommends that you find an attorney to represent you.
The clerk of the court handles the day-to-day work of the court. This includes making courtroom arrangements, keeping records of case proceedings, preparing orders and judgments resulting from court actions, collecting court fines and fees, and disbursing judicial monies. In the majority of states these officials are elected and may be referred to by other titles.
The traditional clerks of court have been replaced in many areas by court administrators. In contrast to the court clerk, who traditionally managed the operations of a specific courtroom, the modern court administrator may assist a presiding judge in running the entire courthouse.
The return of your child can be denied by a U.S. court under limited circumstances in accordance with the Convention. The return can be denied, for example, if the other parent is able to prove to the court one of these exceptions provided for in the Convention: