Incoming Cases — FAQ U.S. Legal System & Incoming Hague Cases

The United States Legal System – Frequently Asked Questions

Is parental child abduction illegal in the United States?

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.

What court in the United States will hear my case?

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.

Is there free legal aid in the United States?

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.

How do I get an affordable attorney in the United States?

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 Convention cases for a reduced fee or no fee, depending on your situation. Income-eligible individuals 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.

Can anyone practice law in the United States?

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.

Can I represent myself in 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.

What is the clerk of the court?

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.

Can I get my children back based on a custody order issued in my country?

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been enacted in 48 states and has been introduced in others. Generally, this statute contains both jurisdiction and enforcement provisions that require a state to enforce a custody or visitation order that was issued by the child’s habitual residence.

More information on the UCCJEA

Can a court deny the return of my child?

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:

• If there is a “grave risk” that the child’s return “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” (Article 13b);
• If “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of” the child’s views (Article 13b);
• If over one year has passed since the date of the wrongful removal or retention (Article 12) and it is demonstrated that the child is settled in their new environment; or
• If the return of the child would be in violation of the United States’ “protection of human rights and fundamental freedoms” (Article 20).

If a court denies the return of my child, can I appeal the decision?

• If you believe that the court improperly denied the return of your child, you have a right to appeal that decision to a higher court. Similarly, if the court orders that your child is to be returned, the other parent also has a right to appeal the court’s decision. Generally speaking, the court that you appeal to (the appellate court) will not consider new evidence. The appellate court will examine the evidence presented in your original court case, and it will decide whether that first decision was legally sound or not.

• The appellate court will typically be deferential to the trial court and uphold its decision. The appellate court, however, could reverse the trial court’s decision if the trial court committed legal error. Additionally, the appellate court could send the case back to the trial court (a remand) for further hearing.