Laws and Regulations
The Hague Abduction Convention and federal implementing statute
This treaty provides a provides a legal framework for securing the prompt return of wrongfully removed or retained children to the country of their habitual residence where a competent court can make decisions on issues of custody and the child’s “best interests” and to secure protection of access rights.
Known as the “Perez-Vera Report,” this commentary explains the legislative history and intended meaning of the Convention’s articles.
- Legal Analysis, 51 Federal Register 10494 et seq.
This is the Department of State’s legal analysis of the Hague Abduction Convention.
- International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11601 et seq.
This federal statute establishes procedures for bringing Hague Abduction Convention cases in United States courts, and authorizes the U.S. Central Authority to access federal databases to locate abducted children, among other provisions.
Uniform State Laws:
The UCCJEA is a uniform state law which has been enacted, in some form, in 49 states, the U.S. Virgin Islands, Guam, and the District of Columbia. You should read the version in effect in the state in which your custody/visitation or enforcement action will proceed. State statutory citations here.
The UCCJEA requires state courts to enforce child custody and visitation determinations made in a foreign country under where the foreign court substantially conformed with the UCCJEA’s jurisdictional standards, as long as the parties had notice and opportunity to be heard. Only limited defenses apply. The act provides expedited procedures for enforcement, and procedures to register custody and visitation determinations in advance of enforcement.
The UCCJEA also regulates when courts have jurisdiction to make or modify child custody/visitation determinations. It requires state courts to defer to sister state and foreign courts that have jurisdiction consistent with its provisions, and provides procedures for judges to communicate to resolve jurisdictional disputes. It also authorizes designated public officials (e.g., prosecutors) to bring civil proceedings under the Hague Convention or other statutes to secure the return of abducted children. See, also, For Attorneys.
OJJDP Bulletin: The Uniform Child Custody Jurisdiction and Enforcement Act
This bulletin provides a detailed description of the UCCJEA, including provisions for registering and enforcing foreign custody/visitation determinations; and discretionary statutory authority for district attorneys and other designated public officials to bring Hague Convention cases.
This uniform law identifies risk factors for child abduction and provisions that can be included in court orders to reduce the risk of abduction. Judges can include prevention provisions in custody/visitation determinations even if a state has not enacted UCAPA, and the uniform act is a useful guide.
- “UU” UCAPA: Understanding and Using UCAPA to Prevent Child Abduction, 41 Fam. L. Q. I (2007)
This article is a UCAPA user’s guide for lawyers and judges. UCAPA’s lists of abduction risk factors and prevention measures may be useful regardless of whether the state has enacted the statute.
- Fugitive Felon Act (Unlawful Flight to Avoid Prosecution, “UFAP”), 18 U.S.C. 1073
When a person accused under state law of felony parental kidnapping flees the jurisdiction, local and state prosecutors may seek a federal “UFAP” warrant, pursuant to which the FBI may investigate. The fugitive, once arrested, is prosecuted under state law upon return to that jurisdiction.
- International Parental Kidnapping Crime Act of 1993, 18 U.S.C. 1204
It is a federal felony to remove a child younger than 16 from the United States, or attempt to do so, or retain a child outside the United States with the intent to obstruct the lawful exercise of parental rights. Parental rights are broadly defined and do not depend upon a court order. The act provides affirmative defenses. The Act states Congress’ intention that Hague Convention remedies be pursued where available.
- Extradition Treaties Interpretation Act of 1998, 18 U.S.C. 3181
This federal statute authorizes the U.S. to interpret “kidnapping” in “list” treaties to include parental kidnapping.
Missing Children Laws: Locating Abducted Children
This federal statute allows “authorized persons” to obtain address information from the Federal Parent Locator Service in connection with the enforcement or determination of child custody/visitation, and in cases of parental kidnapping.
- Missing Children’s Act, 42 U.S.C. 5771
- Requires law enforcement to enter complete descriptions of missing children into NCIC, even if the abductor has not been charged with a crime
This federal law requires each Federal, State, and local law enforcement agency to enter information about missing children younger than age 21 into the FBI’s National Crime Information Center (NCIC) database within two hours of receiving a missing-person report.
U.S. law requires both parents to consent to the issuance of U.S. passports for children under the age of 16, unless the applying parent is the sole parent, or unless there are serious concerns about the child’s welfare. The child and at least one parent must generally appear in person to apply for the child’s U.S. passport.