In International Child Abduction Cases – quiet diplomacy is not working


December 29, 2013

Source:  Washington Post

SEAN GOLDMAN was 4 years old when his Brazilian-born mother took him from their New Jersey home for what Sean’s father, David Goldman, thought would be a two-week vacation. Five years passed before the father again laid eyes on his son.

A_Fathers_Love_Goldman

“It was very painful,’’ David Goldman recalled. “The first time I saw him after nearly five years, he looked at me and asked me where have I been all this time. . . . He was told that I didn’t love him, that I abandoned him, that I never wanted him.”

The only unusual feature of this story is that David Goldman eventually regained custody, though even after the boy’s mother died in 2008 her Brazilian family continued to resist his efforts. He succeeded in part because Rep. Christopher H. Smith (R-N.J.)relentlessly focused attention and pressure on the case. Now a bill written by Mr. Smith, the Sean and David Goldman International Child Abduction Prevention and Return Act, has been approved by the House, 398 to 0, and is set for consideration in the Senate. But the State Department doesn’t want the additional diplomatic tools the bill would provide.

According to State, 1,144 children were reported abducted from the United States in 2012. There were 1,367 in 2011 and 1,492 in 2010. State Department officials say they work hard to get those children back — or at least to get the cases fairly adjudicated — but they can’t or won’t say how many of those abducted children remain overseas. That raises questions about their claims for success for “quiet diplomacy.”

In a letter to Mr. Smith, Robert E. Wallace, executive director of the Veterans of Foreign Wars of the United States (VFW), said the abduction of children by a separated spouse is a particular problem for service members, especially in Japan. Mr. Wallace said the service members’ appeals for help “are too often met with bad legal advice, misinformation or indifference. . . . It is time for the U.S. government to take concrete action.” An organization of victimized parents said that the result of quiet diplomacy is “that the Government of Japan has not once assisted in returning a single abducted child.” Japan at least is in the process of acceding to an international treaty on the subject; most countries have not done so.

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The House bill provides for a series of graduated sanctions against countries that demonstrate a pattern of non-cooperation; it also would encourage the United States to negotiate agreements with countries that have not ratified the treaty. In both cases, the executive branch would act only if it chose to do so; the bill provides for a presidential waiver. Nonetheless, a State Department official told us putting tools in the tool kit would be counterproductive because U.S. officials would face pressure to use them and other countries would resent the implied threat.

Given the administration’s inability to quantify its success, or to report any results at all, the argument for the status quo is not persuasive. An aide to Sen. Robert Menendez (D-N.J.), chairman of the Foreign Affairs Committee, told us that the committee will take the measure up soon. We hope soon means soon. For thousands of parents deprived of the chance even to communicate with their children, quiet diplomacy isn’t getting the job done.

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Court-appointed visitation supervisor charged in parental abduction case


August 29, 2013

Source: The Republic.com

AUGUSTA, Maine — A Maine woman appointed by a court to supervise a visit between a mother and children has been charged with two counts of endangering the welfare of a child after the mother and kids fled the state.

teacher_child

Jennifer Dore of Benton was the court-appointed visitation supervisor for Bethmarie Retamozzo. Authorities say she allowed Retamozzo to drive away with her children on Aug. 15 from Waterville.

Police say the 37-year-old Dore didn’t disclose the information to police until over five hours after Retamozzo left. Police said she placed the children at risk.

Retamozzo is being held without bail at the Kennebec County Jail on two felony counts of criminal restraint by a parent. She and the children were found Aug. 18 in South Carolina. She is expected in court Wednesday.

 

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Preventing Parental Kidnapping After Divorce


July 7 , 2013

Source: pasadenalawoffice.com

Parental kidnapping, while not something most parents will need to worry about after a Pasadena divorce, is still a risk all custodial parents must be aware of.

CHILDREN

The term parental kidnapping is used to mean that a parent who does not have legal custody has taken the child without the permission of the custodial parent. The parent taking the child may leave the state or even the country in order to avoid having the custodial parent make contact.

If your ex threatens to leave with your child, there are several preventative measures you can take. If you are separated, but not yet divorced, a judge can provide you with a temporary order of custody. Without a temporary order of custody, you both have equal rights to the child. Your lawyer can also help you implement protections in your custody order, such as having precise pickup times and requiring regular phone contact during visits.

Keep current photos of your child and your ex on hand to provide to police if needed. It is also a good idea to keep info such as your ex’s Social Security number, driver’s license number, and the make and model of his or her car on hand to provide law enforcement in the event of an abduction.

mother and daughter

Talk to your child’s daycare provider and/or teacher to make sure they know that your ex is not allowed to pick up your child. Schools and child care facilities assume both parents have equal custody rights unless they are told otherwise.

If your child has a passport, place it in a safe deposit box that your ex can not access. If your child does not have a passport, you should have his or her name added to the Children’s Passport Issuance Alert System. This ensures that you will be contacted if someone tries to apply for a passport in your child’s name.

 

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Japan: Cabinet approves child abduction treaty


March 17, 2013

Source: Japantoday

TOKYO

Japan moved one step closer to adopting a long-delayed treaty on child abductions on Friday when the cabinet of Prime Minister Shinzo Abe gave its approval, a government spokesman said.

Abducted-Japan

Japan is the only member of the Group of Eight major industrialised nations that has not joined the 1980 Hague Convention, which requires children be returned to their usual country of residence if they are snatched during the collapse of an international marriage.

Hundreds of non-Japanese parents, mostly men from the United States and elsewhere, have been left without any recourse after their estranged partners took their children back to Japan.

Unlike Western nations, Japan does not recognize joint custody and divorce courts usually award custody of children to their mothers.

Chief Cabinet Secretary Yoshihide Suga said following cabinet approval, the government would swiftly submit the necessary legislation to parliament.

“It is important for our country to join the Hague Convention that sets international rules on dealing with illegal kidnapping of children, now that the numbers of international marriages and international divorces have increased,” he said.

Last month, Abe visited U.S. President Barack Obama in Washington and promised that Tokyo would join the treaty.

For the past few years, Japan has promised to join the treaty, but has never moved it through parliament.

U.S. lawmakers have repeatedly demanded action from Japan on child abductions, one of the few open disputes between the close allies.

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Canada: International Child Abductions: A Manual for Parents


September 18, 2012

Source: Canadian foreign affairs 

Introduction

Child abductions are difficult and complex when they occur within Canada. When they involve other countries, they are even more so. Provincial/territorial and federal governments cooperate closely in assisting parents affected by such abductions. These cases involve Canadian children who have been wrongfully removed from Canada, or who have been prevented from returning home by one of their parents. There are hundreds of active cases.

Each international child abduction is unique. It is important, therefore, that you, the parent left behind, work closely with officials to improve the chances that you can be reunited with your child. You must be directly involved in the search and the anticipated return of your child. This is a bewildering and often prolonged experience. The objective of this manual, therefore, is to help you understand the process and to direct you to appropriate sources of help.

The Hague Convention on the Civil Aspects of International Child Abduction—known as the Hague Convention—is the main international treaty that can assist parents whose children have been abducted to another country. As of January 2012, approximately 87 countries have adopted the Convention, including Canada. It offers considerable assistance in the case of children abducted to signatory countries, and over 400 Canadian children have been returned under its arrangements.

Prevention

Vulnerability

Your child is most vulnerable to abduction when your relationship with the other parent is broken or troubled. The vulnerability is magnified if the other parent has close family in, or other ties, with another country.

This vulnerability may be increased in situations where permission is granted for a child to visit or travel to another country. In many cases, abduction or custody issues arise when the child is prevented from returning to Canada. These cases may not be considered as abductions under the criminal laws of other countries concerned or of Canada. Rather, they may give rise to custody or wrongful retention issues. You should bear these factors in mind when you are contemplating travel for either yourself or your child.

In some countries, children must obtain the permission of their father and women must obtain the permission of their husbands in order to travel. If you are planning to visit another country where you are unfamiliar with the laws and customs as they relate to children and women, you should acquire a thorough knowledge of them before making final arrangements for the trip. You can begin by calling Consular Services in Ottawa.

As well, if you are separated or divorced, or if there is a court order with respect to custodial arrangements for your child, you should discuss your planned visit with a Canadian lawyer experienced in such matters. In some instances, it might also be necessary to discuss your situation with a lawyer in the country you will be visiting. Consular officials can provide you with a list of lawyers in foreign countries who may be able to assist.

If at any time you believe your child may be in danger of being abducted, you should discuss the matter with your local police, your lawyer, Consular Services and other organizations that may be able to provide you with assistance and advice. Remember that it is easier to prevent an abduction than it is to recover a child after an abduction has taken place. Do not ignore your fears. Act upon them and seek assistance.

Precautions and Preparations

If you have any reason to believe that your child could be abducted to or retained in another country against your wishes, you should ensure that you have detailed information about your child (including travel documents), as well as about the other parent and his or her family, friends and business associates both in Canada and in other countries. You should take colour photographs of your child every six months. A checklist of such information is given in the section Information and Document Checklist. Further, you should teach your child how to use the telephone and practise how to make long-distance collect calls. Special attention should be given to teaching a child how to make collect calls from a pay phone.

There is often a revenge motive involved in child abductions, and abducting parents may try to convince their children that the other parent no longer wants or loves them. Therefore, it is important for you to impress upon your child that you do indeed love him or her, and that you would in no circumstances want your child to leave you.

Custody

The laws of Canadian provinces and territories generally provide for both parents to have equal legal custody of a child, as long as there is no custody order and the child is living with them. This is the law in many other countries as well. If you are considering separation or divorce, if you are already separated or divorced, or if you were never legally married to the other parent, you should discuss custodial arrangements with your lawyer. Only your lawyer can provide you with advice appropriate to your specific circumstances.

A well-written custody order is important when dealing with parental child abductions, especially if the other parent is a landed immigrant or a Canadian citizen with ties to, or citizenship of, another country. Even if your Canadian custody order would not be officially recognized in the country to which your child could be abducted, it will serve as a formal statement of your custodial rights in subsequent discussions and proceedings. Your lawyer can advise you on what is appropriate for your situation. The custody order might include some or all of the following:

  • sole or joint custody;
  • access rights;
  • court-ordered supervised access;
  • prohibition on travel without the permission of both parents or the court, and surrender of all travel documentation for a child by the non-custodial parent;
  • deposit of passport/travel documents issued in the name of the child with the court;
  • if travel is permitted to a country that is a party to the Hague Convention, a statement whereby both parents agree that the terms of the Convention and/or of the Canadian Criminal Act would apply in the event of an abduction or wrongful retention; and
  • if one of the parents does not have Canadian citizenship or has dual citizenship, provisions for a bond to be posted in the event of the child travelling to another country, which would be forfeited to the other parent in case of abduction or wrongful retention.

You should obtain several certified copies of the custody order. A copy should be given to your child’s school and other authorities who may be acting in loco parentis. Further, the school should be advised as to who has authority to collect or take charge of your child.

Canadian Passports

Canadian government regulations permit the issuance of a passport to a child under 16 years of age if the applicant is the parent, the custodial parent or the legal guardian. Effective December 11, 2001, Canadian children must have their own passport. The practice of adding a child’s name to a parent’s passport is no longer permitted. If parents are separated or divorced, a child will not be issued with a passport unless the application is supported by evidence that the issuance of the passport is not contrary to the terms of a custody order or a separation agreement.

If you fear the abduction of your child, you may notify any passport issuing office in Canada (or the nearest Canadian embassy or consulate if you are abroad) to have your child’s name placed on Passport Canada’s System Lookout List, which puts officials on alert if they recieve a passport application in your child’s name. Before your child’s name is included on this list, you will be asked to provide the names and birth dates of both parents and the child, as well as copies of any custody-related documents.

The address for the central Passport Canada office is given in the section Directory of Assistance. There are also 29 regional Passport Canada offices across Canada. Consult the federal government section of your telephone directory for the one nearest you.

Dual Nationality

Many international child abductions involve parents and children who have citizenship of other countries in addition to Canada. Dual nationality is permissible under Canadian law. The fact that the abducting parent may carry another passport could create additional difficulty for you and Canadian authorities in preventing an abduction. The Government of Canada cannot prevent diplomatic or consular offices of other countries in Canada or elsewhere from providing passport services to Canadian children who are also citizens of those countries.

You or your lawyer can request that a foreign diplomatic or consular office not provide passport services for your child. To do so, you should provide the foreign diplomatic or consular office with a written request, along with a certified copy of any court orders dealing with custody of or foreign travel by your child. In the letter you can inform the foreign government office that you have also sent a copy of your request to Consular Services. If your child has only Canadian citizenship, you can ask the foreign government office not to issue a visa (if one is required for entry) in the child’s Canadian passport. There is no requirement for other countries to comply with such requests, but many countries do so voluntarily in the interest of preventing international child abductions.

Search and Recovery 

General Advice

The discovery that one’s child is missing is a traumatic experience. It is important that you stay calm and seek assistance from family, friends and appropriate professionals. Report your child’s disappearance to the police and to Consular Services, and consult with your lawyer.

A determined abducting parent can make the search for and recovery of a missing child an extremely complex process. It is very difficult even when the abductor is still in Canada. When the abductor leaves Canada, the process becomes far more complicated. Search and recovery efforts can be prolonged and are often unsuccessful. Therefore, you should not have unrealistic expectations of results, or expect results in a matter of days or, in some instances, months. You should be well organized in this process, establishing reasonable goals and expectations. These may include:

  • seeking to obtain early confirmation of where your child is located;
  • seeking to obtain early confirmation of the well-being of your child;
  • becoming informed about your legal situation both in Canada and in the country where your child is located;
  • understanding the limitations and constraints that may affect the return of your child to Canada;
  • learning about the legal process; and
  • understanding the potential financial implications for you and other members of your family in the search and recovery process.

It is crucial that you be reachable at all times, in case someone tries to communicate with you about your missing child.

If you do not have a custody order, consult with your lawyer on the need for one. In cases where the Hague Convention applies, a custody order “after the fact” may not be necessary. However, for abductions to countries not party to the Hague Convention, a Canadian custody order is important.

One of the most important things you can do in the early stages of an international child abduction is to establish friendly contact with the relatives and friends of the other parent, both in Canada and abroad. The fastest and most effective way to resolve international child abductions is for the abducting parent to return the child to Canada voluntarily. While there may be good reasons for you to believe that this approach won’t work, it is important that the effort be made. The section Other Actions contains more information on this.

You may want to contact a local or national non-governmental organization that provides advice and assistance to parents whose children have been abducted. Such organizations can be of considerable help to you and can put you in touch with other parents who have gone or are going through the same turmoil. A list of some of these organizations is given in the section Directory of Assistance.

However, the first and most important element is to determine exactly where your child is. Recovery actions cannot be taken until your child’s location is known. The following agencies can assist you in finding and recovering your child.

The Local Police

As soon as you suspect that your child has been abducted, contact your local police department immediately. The sooner the police network can begin to search and investigate, the better.

When you contact the local police, give them a copy of any custody order as well as photographs and descriptions of your child and the abducting parent. You should also provide any other information that may lead to the quick discovery of the location of your child. A checklist of such information is provided in the section Information and Document Checklist.

Ask the local police to enter the information in the Canadian Police Information Centre (CPIC) computer system, so that all police forces in Canada will have access to it. Also request that the information be entered in the United States National Crime Information Center (NCIC) computer system.

If you believe that your child has been or may be taken out of the country, request that the local police immediately contact the National Missing Children Services of the Royal Canadian Mounted Police (RCMP). Also contact Consular Services.

Your local police may initiate some of the following, or seek your assistance in doing so:

  • review with you and other authorities whether criminal charges should be laid against the abducting parent;
  • notify your child’s school authorities of the abduction, and ask that they advise you or your lawyer in the event that there is a request for school records; you may need to provide the school authorities with a certified copy of your custody order;
  • review credit cards that the abducting parent may have and request records of purchases;
  • obtain copies of records of long-distance calls that the abducting parent may have made prior to the abduction;
  • suggest to the RCMP or local police the publication of an Interpol circular;
  • if your child has chronic medical problems or is on regular medication, contact the physician and/or hospital that treated your child and ask for their cooperation should there be a request for information concerning your child; here, too, you may need to provide a certified copy of your custody order; and
  • if there are common credit cards or joint bank accounts, check your liability for transactions made by the abducting parent and take appropriate action.

The Canadian Government’s “Our Missing Children” Program

This program involves four federal government departments: the RCMP, the Canada Border Services Agency, Foreign Affairs and International Trade Canada and the Department of Justice. The program’s objective is to locate and return missing and abducted children.

Following a request from the local police, customs officers can immediately have a border alert distributed to the member countries of the International Customs Union. The RCMP component, the National Missing Children Services, is associated with the global police network Interpol, through which it will assist any Canadian police agency in coordinating investigations abroad.

Among the services offered through the RCMP’s National Missing Children Services is theTravel Reunification Program, which is designed to help parents or guardians who cannot afford to pay the cost of having an abducted child returned to Canada. To qualify for the travel assistance offered by the program, the following guidelines must be met:

  • The request for assistance must come from the investigating police department, the provincial/territorial central authority or Consular Services.
  • The requesting agency is responsible for assessing the financial status of the family and determining if free transportation and accommodation should be provided.
  • The service is available only to return a child abducted by a parent.
  • A parent or guardian will not be sent overseas unless all legal steps have been taken for the return of the child to Canada and the local authorities are cooperating in the return.

The Media

Publicity can be both helpful and detrimental in international child abductions. It is important, therefore, that you discuss the matter of publicity with your local police and/or your lawyer. You should discuss the matter with Consular Services as well. In some countries, publicity could affect the willingness or ability of local authorities to assist in the return of your child. It may also cause the abducting parent to go into hiding and, in so doing, create further stress and danger for your child.

Search Agencies

A number of private organizations will carry out search activities on your behalf for a fee and/or expenses. You should obtain advice and guidance from professionals, including the local police and non-governmental organizations (see the section Directory of Assistancefor addresses), before engaging such agencies to act on your behalf. If you do decide to engage such an organization, it is important to have your lawyer involved in any negotiations to protect your financial interests and to ensure that the proposed activities do not further complicate the search for and recovery of your child.

The Hague Convention

More than 30 years ago, the international community recognized the need for cooperation between countries to find a means to prevent and resolve cases of parental international child abductions. In 1976, the Hague Conference on Private International Law, an international organization based in the Netherlands, accepted a Canadian proposal to alleviate some of these problems. Canada, along with some 30 other countries, actively participated in the negotiations that led to the Hague Convention on the Civil Aspects of International Child Abduction. Canada was the second country to ratify the Convention, which came into force on December 1, 1983. Canadian involvement in the negotiation and ratification process was coordinated closely with provincial and territorial governments. The Convention applies throughout Canada and in approximately 87 other countries.

Objectives

The objectives of the Hague Convention are:

  • to secure the prompt return of a child wrongfully removed to or retained in any contracting state, to the environment from which the child was removed; and
  • to ensure that the rights of custody and of access under the law of one contracting state are effectively respected in other contracting states.

Requirements

The Convention can be of help to you if the following requirements are met:

  • Your child was habitually resident in Canada immediately prior to the removal or retention.
  • The wrongful removal was in breach of rights of custody or rights of
    access or retention within the meaning of the Hague Convention.
  • At the time of the abduction or retention, the Convention applied between Canada and the country to which your child has been taken and/or, in some cases, is travelling through.
  • Your child is under 16 years of age.

Application for the Return of a Child

1. What to Do First

If your child has been abducted to or is being retained in a country other than Canada and you are aware of the location, you should contact the office of your provincial or territorial Attorney General and/or Minister of Justice. These departments have special sections designated as the central authority for your province or territory, which are responsible for the administration of the Hague Convention. The federal Department of Justice is also a central authority and provides assistance to the provinces and territories. A list of all the Canadian central authorities is contained in the sectionDirectory of Assistance. The central authority can provide you with information on the countries that are signatories to the Hague Convention, and can advise you on how to proceed with an application.

As of January 2012, the Convention applied between Canada and the following countries:

Argentina, Australia, Austria, the Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, China (Hong Kong and Macau Special Administrative Regions only), Colombia, Costa Rica, Croatia, Cyprus, the Czech Republic, Denmark (except the Faroe Islands and Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France (for the whole of the French Republic), Georgia, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macedonia (known as Former Yugoslav Republic of Macedonia in UN and other international bodies), Malta, Mauritius, Mexico, Moldova, Monaco, Montenegro, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, the United Kingdom of Great Britain and Northern Ireland (including Isle of Man, Cayman Islands, Falkland Islands, Montserrat, Bermuda), the United States of America, Uruguay, Uzbekistan, Venezuela, and Zimbabwe.

In some instances, the Convention may not apply to dependent territories of these countries. It is, therefore, important to verify whether the Convention will apply to your situation. The number of countries to which the Convention applies continues to increase. The website for the Hague Convention provides an up-to-date listing.

The relevant central authorities in Canada and in the foreign country will do some or all of the following to assist you:

  • provide you with information on how to proceed with an application under the Hague Convention;
  • provide up-to-date information on the participating countries;
  • seek to discover the whereabouts of a child who has been wrongfully removed or retained;
  • prevent further harm to such a child by taking provisional measures;
  • secure the voluntary return of the child; and
  • provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisors.

2. How to Apply

Your provincial/territorial central authority will provide you with a copy of the Convention-approved application form and other information about issues under the Convention. The application will require the following:

  • information on your identity, the identity and date of birth of the child and the identity of the person alleged to have removed or retained the child;
  • all available information concerning the whereabouts of the child and the identity of the person with whom the child is presumed to be;
  • a statement of the grounds proving your right to have the child returned; you must prove the wrongful removal or retention of the child and your custody rights that existed at the time of the wrongful removal or retention;
  • supporting documents, such as a certified copy of the judgement or agreement granting you custody or access rights, where such a document is applicable; and
  • a statement giving the foreign central authority the right to act on your behalf.

In addition to providing supporting documents in the official language of your choice (English or French), you may be required to provide translations in the official language of the country concerned.

3. Procedure in a Foreign Country

The Canadian central authority will transmit your application to the central authority of the country concerned. In turn, the foreign central authority will submit your application to its appropriate judicial authority. If the return of your child cannot be arranged voluntarily, a court hearing may take place. At the hearing, your rights may be represented by a lawyer acting on behalf of the foreign central authority or by someone you have engaged privately. The other parent can have legal representation at the hearing and can contest your application.

If the conditions contained in the Hague Convention are met, and none of the exceptions apply, the decision should be to order the return of the child. However, any decision can be appealed to higher courts in accordance with the judicial process of the country concerned, or there could be delays by the police in implementing a court decision in your favour. The Hague Convention calls for fast action in recovering a child, first seeking the voluntary return of the child by the abducting parent. If this fails and legal procedures are initiated, it can take many weeks before a decision is finalized. If a decision is not reached within six weeks of the date on the application, the Canadian central authority concerned may request a statement explaining the delay. The final disposition can take considerable time, depending on the nature of the legal proceedings involved, including appeals.

The Hague Convention contains a number of exceptions that could affect the decision by the court in the foreign country. Some of the main ones are:

  • The other parent proves that you were not exercising custody rights when the child was abducted/retained, or that you consented to the child’s removal or later acquiesced to it.
  • There is a grave risk that the child would be exposed to physical or psychological harm or would otherwise be placed in an intolerable situation if he or she were returned.
  • The child objects to being returned and is old enough and mature enough to have his or her views taken into account.

If the central authority in the country that received your Hague Convention application has reason to believe that the child has been taken to yet another country, it may cease the proceedings or dismiss the application and transfer it to the country concerned.

Costs

Central authorities do not impose charges for the application. There could be costs associated with court proceedings and legal counsel. Some countries will provide legal services free of charge; in other countries you may be entitled to legal aid; and in others it may be necessary for you to engage your own lawyer.

It is not essential that you travel to the country handling your Hague Convention application, but this may be desirable in some cases. If your application is successful, it would simplify matters if you, as the custodial parent, could be present to accompany the child on his or her return to Canada. You will be responsible for the travel costs involved in having your child returned to Canada. Refer to the section Search and Recovery for details on the RCMP’s Travel Reunification Program, which may be able to provide assistance in having the child returned to Canada.

Assistance in the Exercise of Access Rights

If you are having difficulties in exercising your access rights, your provincial/territorial central authority can also process an application under the Hague Convention for organizing or securing the effective exercise of those rights. In so doing, the central authorities are promoting a second goal of the Convention, which is to promote the peaceful enjoyment of access rights. You should contact your provincial/territorial central authority if you are experiencing such difficulties.

Other Actions

In the event that your child has been abducted to a country that is not a party to the Hague Convention, it is possible for you to take other actions both in Canada and abroad that could lead to the return of your child. (Some of these actions may also be relevant if the abduction has been to a Hague Convention country.) In Canada, the civil justice system can be used to reinforce your custody rights and, if appropriate, the criminal justice system can be used to initiate criminal action against the abductor. It may be possible to take similar actions in the other country. As every situation is unique, it is important for you to seek legal and other professional advice and guidance before taking specific action.

Using the Civil Justice System

Once you have obtained a custody order from the appropriate Canadian court, the next step is to decide whether you wish to use the justice system in the country to which your child has been abducted.

Consular Services can provide you with general information on the legal system of that country, customs and practices of that country related to parental rights, and the experience of other people in seeking to use that country’s justice system to have an abducted child returned.

Consular officers in Ottawa and overseas can provide advice and guidance on the laws of a foreign country or on what might be the most appropriate action to take. However, for authoritative information, you will need to retain a lawyer in that country who is knowledgeable and experienced in dealing with custody cases involving foreigners. Canadian officials in Ottawa and at Canadian government offices abroad can provide you with a list of lawyers who speak English or French, who may be experienced in parental child abduction or family law and who may have represented Canadians in circumstances similar to yours. However, as this lawyer will be working for you, it is most important that you, and only you, make the selection. If you decide to undertake legal action in the other country, it may be necessary for you to be there in person at some stage of the proceedings.

Lawyers’ fees vary widely from country to country and could be in excess of what would be paid in Canada. Therefore, you should be very direct when making arrangements for legal representation in another country: ensure that the arrangements are in writing and that you fully understand what the lawyer will and will not do, when it will be done and at what cost. If necessary, Canadian consular officials can maintain contact with your lawyer to obtain status reports and to verify that your rights, as provided for by the laws of that country, are respected.

Your lawyer will advise you on the information and documentation that will be required in order to represent you within that country’s justice system. In addition to providing a certified copy of your custody order, it may be necessary to supply copies of your marriage and/or separation or divorce documents, along with copies of the relevant provincial/territorial and federal laws relating to custody and child abductions. Foreign Affairs and International Trade Canada in Ottawa can authenticate these documents before they are sent. For information, contact the Authentication and Service of Documents Section, tel.: 613-995-0119; fax: 613-944-7078. Your Canadian lawyer can assist you in gathering this material and having it delivered to your lawyer in the foreign country.

A custody order issued by a Canadian court has no automatic binding legal force beyond the borders of Canada. Nevertheless, there may be procedures and laws in place in the foreign country to have that order recognized and enforced there. In addition, such an order could be persuasive in support of any legal action that you undertake. Courts in other countries, like those in Canada, must decide child custody cases on the basis of their own domestic laws. This may give an advantage to the person who has abducted your child, if the abduction is to the country of his or her other nationality or origin. You could also be disadvantaged if the country has a legal tradition in deciding custody cases on the basis of gender and/or religious belief. If custody is given to the abducting parent in another country, you should make every effort to have the court specify your access rights. Some countries, even if they award custody to you or provide for access for you, will not permit the child to leave without the consent of the other parent.

Your chances of having your Canadian custody order recognized and enforced in another country are subject to all these factors and conditions. While it may appear that the deck is stacked against you, it is important to accept that recourse to the courts of another country may be the only hope for the safe return of your child. Each country is unique, and it is up to you to decide whether to proceed with legal action.

Using the Criminal Justice System

Parental abduction is a criminal offence under sections 281, 282 and 283 of the Canadian Criminal Code. In many situations, the criminal justice system can prove to be a very useful instrument in locating and recovering a child, especially when the person suspected of perpetrating the abduction has not yet left Canadian soil.

Since the administration of criminal justice is a provincial/territorial responsibility, criminal justice may be administered in a slightly different way from one province/territory to another. Thus, in the abduction of children, some provinces/territories require authorization from the Crown Attorney before proceedings can be set in motion, while in others proceedings can be initiated by the police themselves.

Use of the Criminal Code makes it easier for the police to search for and locate a child. An arrest warrant is generally issued, often improving cooperation among police forces both nationally and internationally. If necessary, an extradition request may be made if there is an extradition treaty with the country in which the alleged abductor is located.

Extradition

Extradition may be worth considering in some cases of international abduction, but may be of no value in others. There is no guarantee that the child will be returned by foreign authorities even if they should permit the extradition of the alleged abductor. When threatened with extradition, some abducting parents have hidden the child or have gone into hiding themselves with the child.

In addition, not all countries regard child abduction by one of the parents as a criminal act. Consular Services can provide information on the criminal justice system in the country in question, and on whether it is likely to cooperate in parental child abduction cases.

Other reasons why extradition is not frequently used in connection with parental child abductions include:

  • Very few extradition treaties between Canada and other countries include parental child abduction or custodial interference as extraditable offences. In recent treaties, efforts have been made to include the concept of “dual criminality” as the basis for extradition. However, this requires that parental child abduction be considered a crime in both the countries that have signed the treaty.
  • Many civil law countries – in contrast with common law countries such as Canada (with the exception of the province of Quebec), Australia , the United States and the United Kingdom – will not extradite their own nationals. Nearly all the countries of Latin America and Europe are civil law countries. Experience has shown that foreign governments are often unwilling to extradite anyone for parental child abduction.

While it is important to report the abduction of your child to the police as soon as possible, your complaint will not necessarily result in child abduction charges. Whether at the level of the police, the Crown Attorney’s office or the federal Department of Justice, which is responsible for extradition questions, such decisions are made in accordance with the particular circumstances of each situation and the possible repercussions on the return of the child. Protection of the child is the primary objective.

For the police and the Crown Attorney to do the optimum job in dealing with your complaint, it is essential that you provide all the information available to you at the time of the complaint and any new information that subsequently arises. Based on this information, the best possible decisions can be made in the interests of you and your child.

Communication and Compromise

As the foregoing information illustrates, legal approaches to dealing with international child abductions can be prolonged and expensive and are often inconclusive. Before pursuing legal solutions, you should carefully consider and explore alternative approaches, such as negotiation with the abducting parent. In some cases, it may be possible to have relatives or friends of the abductor assist you in establishing contact and help to promote a compromise. As well, community or religious leaders may be willing to intervene on your behalf.

Such actions might not produce immediate results but could reduce tensions, promote the welfare of your child and increase the chances of your being able to visit the child and participate in some way in decisions affecting his or her well-being. Sometimes, compromise and reconciliation will be the only solution.

Information on the Welfare of Your Child

If your child has been found and it is not possible for you to establish direct communication, Canadian consular officials in the country concerned can try on your behalf to obtain assurances from the relevant authorities on the well-being of your child. If local authorities are not available or competent, consular officials can try to make arrangements to visit the child. If they succeed, they should be able to update you on the health, living conditions, and schooling of the child. Sometimes, consular officials are also able to deliver letters and photographs to your child and send you the same in return. If the abducting parent will not permit such a visit, the Canadian government office abroad can request the assistance of the local authorities, either to arrange such a visit or to have a local social worker involved.

If information on possible abuse or neglect of your child becomes available to consular officials, the matter will be discussed, with your permission, with local child welfare and law enforcement officers, possibly through the offices of ISSC. They, along with the local Canadian government office abroad, can ask local authorities to become involved and ensure that the child is protected.

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Father, step-mother and uncle arrested in child abduction case


August 23, 2012

Source: Globaltvbc

KELOWNA, BC; A young Lumby girl is back at home with her mother after her father attempted to abduct her Tuesday morning. 

The Oyama man and his wife along with a brother from Winfield were arrested and taken to Vernon police cells and are expected to face charges of abduction, assault and break and enter.

At about 8:35 a.m. Tuesday, Lumby RCMP were called after a girl was allegedly forcibly removed from her home.

It’s alleged the man also assaulted the girl’s mother and a second daughter. A landlord witnessed the abduction and attempted to intervene.

The child was carried to a waiting vehicle. The mother attempted to stop them, but was pushed aside.

There were three adults in the vehicle as it was seen driving away.

Police located the vehicle and made three arrests at Ricardo Road in Coldstream. The trio was released from jail on a promise to appear in court in September to face the charges.

Read it on Global News: Father, step-mother and uncle arrested in child abduction

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Songs help musician cope with child abduction


Source: soundernews.com

As a 20-year music veteran, Lee Ellefson’s seven previous CDs have always been connected with business. His latest compilation, Galamae, is purely personal though, the result of a difficult time in Lee’s life – the abduction of his young daughter by her mother one-and-a-half years ago.
Named after his daughter, the CD is a collection of work the Gabriola-based musician has compiled over the last two years.
“Writing [the songs] was part of me processing the emotions,” Lee said. “The processing I think was healthy.”
The record is mostly jazz instrumental, Lee’s musical focus over the years, with some Latin influences. He recorded the album at Vancouver Island University where he is a guitar instructor in the music department.


“The writing just came – that wasn’t something I had to force,” Lee said of the process. “It wasn’t something I’d ever planned to do.”
Galamae is now over two years old and Lee has not seen her, nor even a picture of her, since she was taken. He continues to fight his ex-wife in court for custody. Galamae is living in Thailand with her mother who is married to another Canadian man.
“I was a father that was totally psyched about being a father,” said Lee. “My ex removed my child from a healthy situation; there was nothing abusive or dangerous about the life she had…. Her motivations, whatever they were, were selfish.” 
A concert is scheduled for April 12, 7 p.m., at the VIU theatre (building 310) where Lee will take the opportunity to discuss fathers’ rights and the court system. Tickets are available at Gabriola Artworks, Fascinating Rhythm and at the VIU music department for $12 ($10 for students). CDs will be on sale for $10.
“I’m hoping it helps me move forward a bit.”

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Custody Agreement and Visitation Violations – Warnings of Parental Kidnapping?


Source: child custody

This is the third time this month that your ex-spouse shows up late to return your child after visitation.

-Maybe it is the second time he or she asks your permission for the child to spend the night over, three hours after the child was supposed to be returned. While some of these behaviors are typical of a normal parent child relationship, they could also be signs of an imminent child abduction attempt by your ex-spouse.

The study “Issues in Resolving Cases of International Child Abduction by Parents” conducted by the United States Department of Justice’s Office of Juvenile Justice and Delinquency Prevention (OJJDP) in 1998, revealed many interesting findings regarding the wrongful practice of parents kidnapping their children after losing a custody fight. Parental kidnapping – also known as parental or child abduction- is the act of removing and retaining a child in violation of a custody and visitation order.

The child can be removed from his or her habitual residence to another state or even another country. In any case, it is a serious issue. Child abductions are penalized by civil and criminal laws. In the civil context, the abductor’s parental rights will almost certainly be terminated. He or she might also face criminal charges leading to incarceration.

Nearly one half of the reported abductions in this study revealed that the kidnapping occurred during a court-ordered visitation in which the child was never returned.

Parental kidnapping is not very often the case of a sudden or spur of the moment decision. A long and methodic planning usually precedes every kidnapping. You might be able to tell that your ex-spouse is planning something devious if you see some of these signs:

Visitations are regularly prolonged by the non-custodial parent.

The non-custodial parent fails to follow up with the visitation order.

The non-custodial parent starts to show a deep and constant need to be closer to the child.

The relationship with the child becomes the center of the non-custodial parent’s life.

The non-custodial parent starts putting money away for his or her plan.

The non-custodial parent shows up at school and doctors’ offices to request copies of your child’s records.

The non-custodial parent starts studying a foreign language, or travels to another state or country, in which he or she had family or used to live years ago.

You start to notice that your child is withdrawing from you.

The study conducted by the OJJDP showed that younger children were the preferred victims of abductor parents, perhaps because they can offer less resistance. Another interesting finding of this study was that in the cases in which the child was recovered, the period of separation lasted less than one year. Thus, the sooner you report the abduction to local enforcement agencies, the more likely your child will return home promptly. After more than 5 years, recovery is highly improbable and not favored by the courts.

You can prevent your child’s abduction. You must be tough with your ex-spouse when he or she shows up regularly late to return your child. One thing you must do is to warn him or her that the violations of the visitation plan will not be tolerated, and that next time you are going to notify the courts. If you won your child’s custody over a high conflict divorce proceeding, you should always keep records of your ex-spouse’s employment, driver’s license, auto tag number, address and some of his or her friends‘ names and phone numbers, if possible. This will help authorities as they attempt to search and locate your child.

Get more information about custody agreements and find how how to create your perfect child visitation schedule.

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Ex-Falls woman admits parental kidnapping


Source: Buffalonews.com

A former Niagara Falls resident pleaded guilty Monday in federal court to a charge of international parental kidnapping.

Tricia Griffith, 37, told U. S. District Judge Richard J. Arcara that she took her child from a residence to Jamaica in June 2010 without the knowledge of the child’s father and in violation of a court order of custody issued previously by a State Supreme Court justice.

She was arrested several months later at JFK International Airport in New York City by agents from Immigration and Customs Enforcement when she returned to the United States without the child.

The child remains outside of the United States.

Griffith faces sentencing March 16 and could receive a maximum penalty of three years in prison and a $250,000 fine.

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‘My children are my everything — the reason I’m alive’


Source: The Japan Times

Left-behind father makes desperate journey to Fukushima to reunite with kids

 

By SIMON SCOTT

On Bruce Gherbetti’s right forearm, the names of his three lost children are permanently inscribed in a swirling script of dark blue tattoo ink.

 

News photo
Canadian Bruce Gherbetti is reunited with his eldest daughter in Fukushima Prefecture in September after a difficult two years apart. SIMON SCOTT

 

“They go with me everywhere I go,” he says, smiling. “It is a physical representation of the fact that my children and I will never be separated. They are my everything — the reason I am alive.”

It was a very long, painful two years and two weeks before Gherbetti, a Canadian, was finally reunited with his children in Japan this September and was able, if only briefly, to see and speak with them again.

Tears in his eyes, Gherbetti described the reaction of his oldest daughter, now 8, when she saw him standing in the backyard of the house where the children now live.

“(She) saw me and it registered in about four seconds, and she said ‘Dada.’

“I opened my arms and she came running into my arms. I was afraid that wouldn’t happen, but also I was quietly confident in my heart that it would.

“I visualized that whole scenario every day for the last two years. It’s gold — it’s absolute gold.”

The journey from his home in Vancouver to a small town in Fukushima Prefecture just 50 km from the leaking No.1 nuclear plant has been a long and arduous one. In September 2009, during the breakdown of their marriage, Gherbetti’s wife took their three children — then 6, 4 and 2 years old — to Japan.

“I was absolutely devastated.” explains Gherbetti. “I arrived home and the house was utterly empty and devoid of all traces of my family and children. I felt at a loss and confused, but at the same time there was a realization that my children were gone — overseas, back to Japan.”

 

News photo
Gherbetti and a supporter celebrate after the surprise visit to his estranged wife’s home. SIMON SCOTT

 

Gherbetti’s wife accused him of domestic violence shortly before taking the children — an allegation he vehemently denies.

After his children were taken, Gherbetti suffered from severe depression and post-traumatic stress disorder, for which he underwent counseling in Canada. He also joined a number of web-based support groups for left-behind parents and gradually, over time, built up the confidence to come to Japan to find his kids.

On Sept. 21 this year he flew to Japan, and within two days of arriving in the country he travelled up to tsunami-hit Fukushima, accompanied by a group of supporters, in search of his lost children.

All previous attempts Gherbetti had made to contact his children had been blocked by his wife, whom he has only spoken to once since she took the kids to Japan. Gherbetti says that during that conversation, his wife chillingly told him she wanted to “erase Canada from the children’s memories.”

Gherbetti says he can understand and accept that his estranged wife wants to bury the past, but he believes it is his children who will ultimately suffer by being alienated from their natural father.

“None of this is about me, this is about my children,” he says. “I feel what she has done is essentially denied them knowing half of who they are. It is not fair — it is simply not fair.”

Having lost his own father to cancer when he was only 17, Gherbetti, now 41, says he is only too aware of how important it is for children to have both parents in their lives.

“I know what it is to struggle without a father — to make your way in this life without the competence and guidance of a father. It made me realize that if I am ever in the position where I have children, I just want to emulate what he was able to give me. He was a very good man — a good father.”

 

Treaty is step in right direction, but won’t aid many kids, parents

There are currently 34 Canadian parents listed as having lost access to their children after a Japanese spouse unilaterally took the kids to Japan, according to the Canadian Embassy in Tokyo. This number does not include Canadians resident in Japan who have lost contact with their children within the country.

Figures for the United States are much higher, with 100 American left-behind parents fighting to see their children as of January, according to the U.S. State Department.

The U.S. Embassy in Tokyo reports an additional 31 cases in which both parents and the children reside in Japan but one parent has been denied access.

Yet “parental child abduction” is not just a problem for foreign spouses of Japanese. Untold numbers of children of Japanese marriages never get to know both parents.

Japan is the only G-7 member nation that hasn’t signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a treaty designed to protect the rights of child victims of international abduction by returning them to their place of habitual residence.

Earlier this year Japan made a commitment to eventually ratify the treaty, and this is clearly a step in the right direction, but for many victims of the country’s much-criticized custody laws, it will be too little too late.

The treaty only covers cross-border cases of child abduction and will do nothing to help children spirited away within Japan or the left-behind parents who want to be part of their lives.

In addition, the convention will not be applied retroactively, so it won’t alleviate the suffering of thousands of children already abducted to Japan who have no contact with their foreign parent. (Simon Scott)

 

Gherbetti believes his wife is a good mother and loves their children very much, but he doesn’t understand how she can deny them access to a person in their life who is critical to their development — namely, their father.

“There are definitely things I can bring to the table — as a male, as a father, and as a Westerner even — that are relevant and useful, I’m sure, for these children,” he says.

“The kids might want to talk to me about things that they are experiencing. ‘Maybe I’ll just talk to Dad about this situation and see what he has to say about this’ — rudimentary stuff but, that said, crucial to the emotional well-being and development of a child.”

Gherbetti acknowledges that he doesn’t know his estranged wife’s motives for denying him the right to play a part in his children’s lives, because she refuses to communicate with him, but he suspects that, beyond feelings of bitterness relating to the breakup of their marriage, they hold different values regarding the importance both parents can play in a child’s upbringing.

“I think there is a cultural issue at play here,” he says. “When the marriage fails, as far as I understand it, in Japan, traditionally access and contact with the left-behind parent is viewed as an inconvenience. It is so completely different from our Western philosophies — that children have the right to know both their parents, a right to know their whole family.”

Armed with only the old address of his wife’s family home and a lot of faith, Gherbetti made the journey from Tokyo up to Fukushima to seek out his kids. Prior to being reunited with his children, Gherbetti described his motivation for the surprise visit.

“I would simply like for the children to realize that I am still alive. I don’t know what they have been told. I don’t know what they believe or what they know at this point. I just want to arrive and give them the opportunity to see that I am here.”

Attempts by left-behind parents to reunite with their children in Japan are rarely successful and sometimes result in arrest for the alienated parent, particularly if they attempt to retake custody of their children.

In 2009, U.S. citizen Christopher Savoie was arrested and imprisoned in Fukuoka when he attempted to retrieve his two abducted children while they were walking to school. Savoie, who had been awarded legal custody of the children in the United States before their abduction to Japan, attempted to take them to the U.S. consulate in Fukuoka but was arrested by Japanese police outside the gates. He was detained for two weeks and released without charge, but never regained custody of his children.

Gherbetti says he has no intention of trying to take back his children and is not even seeking custody. He just wants to visit them from time to time and to communicate with them on a regular basis via telephone or Skype — something his wife will not allow him to do.

 

News photo
Gherbetti holds up a note apparently written by his 6-year-old daughter, handed to him by his eldest daughter during their brief reunion. SIMON SCOTT

 

Gherbetti’s wife was not at home on the day of his surprise visit to Fukushima, and his children were at home with their extended family, which he suspects may have been why things went so smoothly. Also fortuitously, his 6-year-old daughter was playing in the backyard when he arrived at the house.

He called out to her, and when she came over he passed a bunch of flowers to her across the fence, but — overwhelmed and confused after seeing her father for the first time in two years — she quickly ran back inside.

“Seeing me brought forward a flood of emotions that she probably couldn’t deal with at her 6-year-old age,” he says. “She was only 4 when she was abducted, so there is some confusion.”

She didn’t reappear in person, but Gherbetti’s eldest daughter delivered a note from the 6-year-old just before the visit ended.

“I think (she) was able to express her feelings the best way she knew how, and whether or not she or (her older sister) wrote the note, the expression is clear: ‘Dady Love’ — I love my daddy.”

Getting to see his three children again after over two years, even if only for a short moment, means the world to Gherbetti, and it has reaffirmed his commitment to his children despite the uncertain future.

“The hug . . . and the note . . . have provided me the fuel required to see this journey on to the end,” he says. “I’m willing to do anything and everything to reconnect with my children.”

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