An Australian woman marries an American man, and they have a daughter. The family lives in Texas, where the child attends pre-school and Sunday school, visits her paternal grandparents every weekend, is friends with the boy next door, and has regular play dates with her classmates. The mother, however, is unhappy in Texas. She schedules a vacation during the summer to visit her family with the little girl, while the father remains in Texas for work. Shortly after arriving in Australia, the mother calls the father and tells him that she has no intention of returning to the United States and that her lawyer will be contacting him to arrange a schedule for him to visit their daughter in Australia.
This fact pattern is typical of a “simple” international parental child abduction case:[i] The parents are from countries with relatively similar cultures, they speak the same language (as do all extended family members), and neither parent has made any allegations of poor behavior, such as abuse, by the other. The mother is just “unhappy” living in Texas.
The major difficulty in this case is the distance between each parent’s residence, since children typically need to stay primarily in one location to attend school, but even with this added consideration, many family mediators could competently tackle this type of international parental child abduction case.
Unfortunately, few cases are this simple, and most pose almost limitless challenges. This article highlights some of the complexities in international parental child abduction cases and shows why such cases should be handled by capable, highly skilled mediators.
Complexities Based on the Parents’ Identity
In any family law matter, each parent has his or her own baggage, personality, and panoply of emotions. The parents in a parental child abduction case typically have very high emotions, and the abduction itself can create a sense of emergency. When one parent takes a child across international borders, the case becomes even more complicated.
One common concern for the participants is the immigration status of one or both parents. A parent may have originally entered the United States (or taken a child out of the United States) illegally and may now be forbidden from returning, making an in-person mediation session difficult or even impossible.
Even when face-to-face meetings are possible, each parent’s cultural background can create complexities – for the mediator as well as the parents. The parents may come from similar cultures, or they may be worlds apart in language fluency, views, and communication styles. Even when the parents speak a common language, in the high-stress situation of mediation, one or both parents may prefer to speak a native tongue, perhaps requiring the use of a translator. A parent’s culture may even affect who participates: One parent may want a third party, such as a tribal elder, grandparent, or even a child, to attend the sessions, while the other prefers that only both parents be present.
These cases can be especially tricky for the mediator. If the mediator shares one parent’s culture, he or she may have an inherent (or at least perceived) bias. When one parent’s culture permits behavior that other cultures find reprehensible or abhorrent (such as culture-based domestic violence), the mediator can face the additional challenge of remaining neutral, not judging on the basis of cultural practices.[ii] When more than one language is being spoken, mediators need to use their best judgment about whether everyone involved fully comprehends what is being said, done, and agreed upon.
Geography affects both parents and extended families. Many military families, for example, move regularly and are sometimes stationed overseas. Who should decide where the child or children live and how often they visit the parent who is overseas? In other families, one parent may be a member of a tribe or First Nation whose territory spans international borders, making it difficult to determine jurisdiction. Many children of cross-cultural parents, while living primarily in one community, may have traveled overseas frequently while growing up, to spend time with extended family members and learn about their heritage. Deciding on a place of residence is one challenge; how often should the child travel overseas to see grandparents and beloved cousins? In all such cases, a mediator should guide the parents in assessing the impact of distance and travel and of a child seeing or not seeing extended family members as well as the non-resident parent.
Complexities Based on Nationality or Residence
In international parental child abduction mediation, the mediator needs to consider not only two parents but two countries. These countries may have vastly disparate legal systems, including systems that may be founded on religious law, which can make enforcing a mediated agreement in both countries impossible. If an agreement is unenforceable and if there is no mechanism to require the return of an abducted child, the parent who removed the child could feel empowered to stay put and ignore pleas to mediate. Each country (not to mention jurisdictions within countries) has its own rules about mediation, and each parent may have widely different views on what to expect in the process. These variations range from rules about privacy and confidentiality to the role and qualifications of the mediator.
Countries also differ about the role of the child in the mediation. The child is, after all, the focal point of the dispute. Some countries favor involving children of tender years, while others do not allow it. Mediators who are not accustomed to speaking with children, therefore, will need to adjust their practice in cases involving a country that mandates a child’s involvement. Different legal systems will also affect mediation if the parents in the case are same-sex parents or adoptive parents; some countries do not recognize these relationships and therefore may not recognize any agreement reached in regard to the child.
The mediator must also be familiar with something that rarely applies in family conflicts but is common in any international dispute – whether an international treaty may apply. In particular, some countries allow a parent to seek a child’s return under the 1980 Hague Convention on Child Abduction,[iii] which sets strict deadlines and structures and involves contacting certain offices within government entities, which, if overlooked, could result in waiver of the parent’s right to invoke the protections of the treaty. In all such cases, a mediator should be certain not to allow the mediation to cause sufficient delay that a parent is unable to pursue legal remedies should mediation not reach agreement.
Different countries mean different rules, some of which may create a favorable environment for future parental child abductions, and mediators must be aware of these different rules when guiding the discussion. Any agreement should be grounded in the current realities of the family’s situation and anticipate future problems. For example, different governments have vastly different exit controls at international border crossings. The United States allows a parent to exit with a child with no verification of the parent’s authority to travel with the child. Some other countries require signed or notarized consent forms before allowing a child to exit a country with one parent. The mediation discussions should also directly address the possibility of future travel, including who obtains and holds the child’s passport and who pays for international travel.
Essential Competencies for the Mediator
Mediators may quickly feel overwhelmed in an international parental child abduction case, at times feeling the need to be experts in international, criminal, family, and immigration law as well as child psychology, cultural norms, and languages. In reality, the mediator needs only to know how and where to find information, when to consult someone with more experience or expertise, and when to terminate the mediation.
All mediators who work on family conflict cases should have some rudimentary information about child psychology and available therapeutic services. In international abduction cases, mediators will often hear of problems related to child-parent bonding and attachment, particularly when young children do not see both parents frequently. If a child is separated from one parent for an extended period of time, mediators may want to present an option that the parents contemplate child-parent reunification therapy.
A mediator also needs to be aware of any criminal issues at play. Parental child abduction is a federal, and frequently a state, crime. If an arrest warrant has been issued for the abductor parent, that parent might not want to return to the United States (or other country) for fear of arrest, making access to the child difficult. If the “criminal” parent insists the other parent drop charges, which the other parent may be unable to do, the mediation could stall.
Finally, a mediator needs to be able to navigate the dynamics that persist when an abduction has taken place. One or both parents, for example, may be planning to abduct the child in the future. The mediator needs to have the skills to address this issue sensitively and allow the parents to craft an agreement that will enforce their current understanding as well as provide safeguards against future poor judgment – all without unnecessarily escalating the conflict.
Additional Considerations for the Mediator
In our globally mobile era, any family dispute could be an international parental child abduction case. Family mediators should have a screening protocol that identifies the ways in which the case deviates from a typical family mediation.
For instance, in a parental child abduction case, a parent can file a 1980 Hague return petition in federal court or state court, although each court may have a different process for scheduling hearings and a different ability to hear the case on an expedited basis.
Many parental child abduction cases involve allegations of domestic violence. If the 1980 Hague Abduction Treaty is applicable, a claim of domestic violence may dissuade the court from returning the child. As in all cases, allegations of domestic violence should trigger additional screening to ensure that the participants and the mediator are safe.
Early identification of a case as a parental child abduction dispute will help the mediator plan the process and schedule the mediation for parties in different time zones, particularly if the mediation is done by distance mediation. For parties who want to mediate but cannot attend in person or for third-party participants who cannot attend in person, mediators will need to be familiar with online dispute resolution tools and processes.
As discussed earlier, the mediator should consider what parties or organizations can help make a successful mediation. Offices within the US government, various nongovernmental organizations, and international organizations could have a role. In addition, if one or more of the parties is represented by counsel, the mediator should consider the limitations of the lawyer’s knowledge and his or her impact on the client.
While parental child abduction mediations are less frequent in the United States, organizations in other countries such as Reunite (www.reunite.org) in the United Kingdom and MiKK (www.mikk-ev.de/) in Germany, have been mediating these types of cases frequently and for many years. The Hague Conference on Private International Law (www.hcch.net) has published some of its research in the form of a Guide to Good Practice on handling mediation cases under the 1980 Hague Child Abduction Convention.
International parental child abduction cases are complex high-conflict family cases that involve a myriad of issues and require competent, confident mediators who not only understand the nuances but acknowledge their own limitations and can seek out informed and appropriate help.
Melissa A. Kucinski is a private practice family lawyer, mediator, and law professor who spent the summer of 2013 consulting for the Hague Conference on Private International Law in the Netherlands. She chairs the ABA Task Force on International Family Mediation and can be reached at firstname.lastname@example.org.
[i] Parental child abduction is defined as one parent removing a child from the child’s home without the agreement of the other parent.
[ii] For an informative discussion of marital conflict involving Quranic principles that positions the husband in a favorable bargaining role for a divorce, see Ellen Waldman, Mediation Ethics 318-19 (2011).
[iii] The United States ratified the 1980 Hague Convention in 1988, and implemented it through the federal International Child Abduction Remedies Act, (“ICARA”) 42 U.S.C. § 11601. ICARA establishes a Central Authority, the Office of Children’s Issues at the US Department of State, to manage the operation of the Convention within the United States, provide case management, and ensure the US meets its treaty obligations.