Changing the Way Lawyers Practice: Child Kidnapping and the Internet ANTOINETTE SEDILLO LOPEZ University of New Mexico School of Law 1117 Stanford NE Albuquerque, New Mexico 87131 United States lopez@law.unm.edu Posted with kind permission of Antoinette Sedillo Lopez Professor of Law University of New Mexico ABSTRACT This article describes how computer technology can improve lawyers' representation of clients in child kidnapping cases. Governments, non-governmental organizations and individuals have toiled to make information and services freely available on the Internet. The article describes the ways lawyers can use the Internet to better serve their clients in these challenging cases. KEYWORDS Hague Convention on the Civil Aspects of Child Abduction; International family law; child kidnapping; Internet research; Parental Kidnapping Prevention Act; Uniform Child Custody Jurisdiction Act INTRODUCTION The legal community and child welfare activists have attempted to address the heart-wrenching problem of child abduction, both international and domestic. [1] The Hague Convention on the Civil Aspects of Child Abduction was opened for signature on October 25, 1980. [2] The United States federal Parental Kidnapping Prevention Act was passed in 1980. The Uniform Child Custody Jurisdiction Act was proposed as a uniform law and passed by virtually all states in the United States by 1984. Many countries also changed their laws to address child-kidnapping issues more effectively. [3] These laws spawned a revolution in how child-kidnapping cases are handled legally. In most cases, parents whose children were taken out of their home country prior to the passage of these laws had to hire expensive private investigators, locate the child, travel to the child's location and initiate a legal proceeding in the new location for the return of the child. Parents faced the ordeals of not knowing the location of their children, huge financial costs, local bias, and language, cultural and legal barriers. [4] While the legal rules of how these cases are handled have changed by allowing parents to initiate a legal action in their home country and state in many cases, technology now enables lawyers to be of greater assistance to their clients in child abduction cases. [5] Governments, non-governmental agencies, and individuals have worked diligently to post useful information and to provide helpful services on the Internet. This article describes steps a lawyer can take to use the available resources. The article demonstrates how computer technology has contributed to the ability of lawyers to more effectively represent clients in child abduction cases. The Appendix lists some useful sites located on the Internet. CHANGING PRACTICE Imagine the following scenario: Mela is in her lawyer's office. Her ex-husband Mick has not returned her children after their two-week summer visit with their father in Mexico. His phone has been disconnected. She has called the local police, who told her to file a missing person report and to "contact her lawyer." She thinks it is possible that Mick took the children to his mother=s house in Salt Lake City, Utah. He also has a girlfriend who is originally from Canada. Mela thinks the girlfriend is from Montreal. The lawyer tries to calm her down and assure her that the vast majority of parental abductions are resolved in a week or two. Children rarely just Adisappear." While Mela sits in the lawyer's office, the lawyer makes a few phone calls. The lawyer learns that Mick is likely to be in Canada. She turns to her computer. She reaches the State Department's web site. The lawyer downloads a form for notifying the State Department of the abduction. Since Canada is a party to the Hague Convention on the Civil Aspects of Child Abduction, the State Department Office of Children's Issues and the National Center for Missing and Exploited Children will assist in locating the children. A petition seeking their immediate return can be filed in the home country. The lawyer helps her client fill out the form, notify the National Center for Exploited and Missing Children and prints out an information booklet for Mela. The lawyer makes sure that local police enter the children's name and description into the Amissing persons' section of the National Crime Information Center computer and the Canadian Royal Mounted Police Child CyberSEARCH. The lawyer assures her client that if the children are not found within 24 hours by the Canadian authorities she will help her to scan a picture of the children and post it on several web sites designed to help find missing children. The lawyer tells Mela that she will also help her hire a private investigator, if necessary. Within 24 hours the Canadian Royal Mounted Police notify the attorney that they have found the children in Montreal. She contacts a lawyer in Montreal who immediately files a petition for their return under the Hague Convention on the Civil Aspects of International Child Abduction in the Provincial Court. Within a week, the children are back with Mela. In the not too distant past, Mela's lawyer might only have been able to refer the client to a private investigator and to an attorney located wherever the child was eventually found. Today, without leaving their offices, lawyers can research and find forms; communicate with authorities, organizations and lawyers; and find service providers on the Internet if they know how to use it. To use the Internet effectively, a lawyer needs to know a few basics about the law relevant to child abduction and how to locate relevant sites on the World Wide Web. The extraordinary effort of agencies and individuals in sharing their expertise and services on the Internet has resulted in an incredible array of resources on the World Wide Web. Any browser can help the lawyer locate the best sites. SEARCHING FOR THE CHILD Of course, the first thing to do is to find the child. Usually, filing a police report is a good first step. It is important to make sure that the police enter a recent picture of the child in the National Crime Computer and national and international child find organizations. A private investigator may be needed to supplement police and agency efforts. While many lawyers use private investigators for a variety of legal matters, it may help to find a private investigator specializing in child abduction (both international and domestic). Many private investigators post web pages that give information about their experience and their regional reach. Many online service providers offer service directories listing investigator services. After reviewing the web page, a lawyer should call a private investigator to find out about the investigator's experience, the search plan and the costs. A lawyer should also ask for references and always contact the references. A lawyer should introduce an investigator to the client only if the lawyer is confident that the investigator can conduct an aggressive search. Most attorneys develop relationships with private investigators and rely on them as needed. If it is possible that the child has been taken out of the country, the child's name should be entered in the United States passport name check system. If the child is of dual nationality, the Embassy and the Consulate of the foreign country should be asked not to issue a foreign passport to the child. The Department of State Office of Citizen and Counselor Services can initiate a welfare and whereabouts search for the child overseas even if the foreign country is not a party to the Hague Convention on the Civil Aspects of Child Abduction. Several web sites are posted by child locator services (e.g., National Center for Missing and Exploited Children, the State Department's cooperating agency). These sites offer a variety of services. They often contain literature on child abduction and on finding abductors and the missing children. Most of these web sites allow a parent to post a picture of the missing children, where they were last seen, and the name of the abductor. Jonathan Stewart of the Los Angeles District Attorney Office stated that one benefit of posting a child's name and picture on the Office's child abduction web site is to send a message to the parent who abducted the child. The listing makes clear that law enforcement considers the abduction illegal. According to Stewart, the web site attracts a steady stream of e-mail leads from the posting. Sometimes the abducting parent e-mails the site. This type of web site often contains links to additional related web sites and web pages of lawyers and private investigators who offer services in child abduction cases. Some web sites offer psychological information on child abduction and its impact on children and parents. Clients should be warned about some of the dangers for them on the Internet. There are many "chat" rooms and bulletin boards for non-lawyers involved in the family law system. Some of these Achat@ rooms and bulletin boards are for individuals whose children have been abducted. Some psychologically unbalanced individuals might try to prey on a parent's pain during this very difficult time. Some of the tales of abduction in these sites are horrifying. Also, incorrect information (especially legal) may be posted in the "chat" rooms and bulletin boards. As always, clients should seek assistance from their lawyer about questions or concerns. While the search is being conducted, the lawyer may want to go to the court with jurisdiction over the matter to get a court order ordering the immediate return of the child. (In many jurisdictions, technology is also affecting how lawyers file such pleadings) Certified copies of the court order mandating the return and custody order in force at the time of the abduction will be useful when the child is found. LEGAL PROCEEDINGS TO OBTAIN THE RETURN OF THE CHILD Once the child has been found, legal proceedings to have the child returned must be initiated. If the child is found within the United States, the police and/or the FBI will normally return the child if the court orders with respect to custody clearly indicate that the child should be returned. The state's Uniform Child Custody Jurisdiction Act [6] (UCCJA) and the federal Parental Kidnapping Prevention Act [7] (PKPA) can be used to thwart attempts by the abductor to go to a local court and change the custody order or to get an out of state order dismissed if the abductor has obtained an order in violation of the provisions of the UCCJA or the PKPA in the United States. Several web sites contain research, forms and legal information. For example, the ABA Center for Children and the Law contains a wealth of forms and research. The Hilton House web site created by Attorney William Hilton contains published cases and summaries of unpublished cases involving child custody jurisdiction. It contains forms and ideas for presenting cases under the PKPA and the UCCJA. The ABA Center for Children and the Law can also provide information about attorneys with expertise in UCCJA and PKPA proceedings to help locate co-counsel in the state where the child is found. In addition, many family law attorneys use the web as a marketing tool. Their web sites list their area of expertise. If the child is found in a country other than the United States, it is important to determine whether that country is a party to the Hague Convention on the Civil Aspects of International Child Abduction [8] (Hague Convention). If the country is a party to the Hague Convention, the State Department Office of Children's Issues (in the United States) or the Acentral authority" in a signatory country will assist with the legal proceedings if the child is under sixteen. [9] A central authority will not serve as an advocate for parents, but they will help in transmitting documents and will help educate judges and juvenile authorities about the provisions of the Hague Convention [10]. The central authorities in many signatory countries have created web sites that provide significant information about their procedures and the services they offer. The purpose of the Hague Convention is to ensure that the child is returned to his or her place of "habitual residence" and to ensure that legal proceedings of the country of the child's "habitual residence" are respected. [11] Some countries will provide full legal services at no cost to the applicant. [12] If the proceedings are begun within a year of the abduction, the court must order the immediate return of the child. If the proceedings are brought after a year has elapsed, the judge must order the child returned unless the court finds that the child has "settled in its new environment." [13] Additional exceptions to the requirement that the court order the immediate return of the child include a judicial finding that the parent was not actually exercising custody rights and the time of removal or retention or had consented or subsequently acquiesced in the removal or retention of the child. [14] The court can also decline to order the immediate return if it finds that there is a "grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation" [15] The judicial authority may also refuse to return the child if it finds that the child objects to the return and is of appropriate age and degree of maturity [16]. The text of the Hague Convention is posted on several sites, including the State Department web site. The State Department web site contains information on which countries are parties to the Hague Convention and an overview of the procedures in signatory countries. If the country where the child is located is not a party to the Convention, the parent will have to initiate legal proceedings in the foreign country and litigate the matter pursuant to that country's laws. The State Department's web site contains an overview of the procedures in some non-signatory countries. [17] The State Department and the National Center for Missing and Exploited Children can also help locate competent counsel in many countries. Several organizations such as the International Association of Matrimonial Lawyers can serve as referral sites for attorneys who have an international aspect to their practice. The Hilton House web site contains some useful research on a variety of signatory and non-signatory countries. The ABA Center for Children and the Law, Parental Abduction Project web site also is very helpful. The site contains forms and research that can be downloaded and used. None of these sites require a subscription. They are free as a service to those involved in helping parents with child abduction cases. ADDITIONAL INFORMATION ON THE WEB The web can also help with research on many countries' laws and customs. Several countries publish their laws on the web. The web also offers travel information and guides to customs and culture on the web that may be helpful. The ABA Center for Children and the Law offers proposed legislation that can be downloaded to use to lobby state legislatures to address the issue of child abduction. Finally, booksellers on the web can help locate books that will help the parent during this highly stressful time. Some books are geared to children to help them deal with the after effects of abduction. These books can be purchased online using a credit card or account. CONCLUSION The Internet is no substitute for legal training and experience. However, it can be a tool to expedite representation in parental kidnapping cases when time is of the essence. Knowledge of how to search and use information on the World Wide Web can greatly enhance the practice of international and interstate family law. However, this will occur only if attorneys learn how it works. This article has shown how attorneys can find and use relevant sites in their legal representation of clients. Only then will the extraordinary effort of the agencies and individuals sharing their expertise on child kidnapping and offering their services on the Internet achieve the promise of technology. APPENDIX Important Phone Numbers and Useful Child Abduction Sites on the Web U. S. State Department Office of Children's Issues http://travel.state.gov/officeofchildissues.html Phone: (202) 736-7000 U.S. State Department Office of Legal Assistance and Citizenship Appeals http://travel.state.gov/passport_assistance.html Phone: (202) 326-6178 (Can block issuance of U.S. passport in child=s name upon submission of a court order prohibiting the child=s departure from the United States or giving other parent custody) International Child Abduction Attorney Network, Parental Abduction Project at the ABA Center at the ABA Center on Children and the Law http://www.ABAnet.org/child/home.html Phone: (202) 662-1757 The Hilton House International and Domestic Child Abduction Web Site http://www.hiltonhouse.com Missing Children Help Center, National Child Safety Council http://www.usakids.org/html U. S. House Missing and Exploited Children Caucus http://www.house.gov/cramer/caucusmem.html National Center for Missing and Exploited Children http://www.missingkids.org/ Phone: 1 (800) 843-5678 International Academy of Matrimonial Lawyers http://www.iaml.org Lost Child Emergency Broadcast System http://www.lostchild.net International Child Abduction, Lord Chancellor=s Child Abduction Unit-the central authority for England and Wales http://www.offsol.demon.co.uk/intncafm.htm Interpol Argentina http://206.117.8.104/interpol_arg Euregio-Net-Europe http://www.euregio.net/missing.html Germany http://www.vermisste-kinder.de Italy "Chi l'ha visto?" http://www.chilhavisto.rai.it/ Netherlands-Niet Gevonden http://wwwlornroep.hl Child Alert Foundation http://abductionalert.hypermart.net North America Missing Children Association http://www.namaca FindKids.com-A Directory of Resources for Missing Children http://www.findkids.com International Center for the Search and Recovery of Missing Children 1 (800) 887-7762 http://www.icsrmc.org Private Eye International www.pi-international.com REFERENCES See June Starr, The Global Battlefield: Culture and International Child Custody Disputes at Century's End, 15 Ariz. J. International and Comparative Law 791-800 (1998) 2 Hague Convention on the Civil Aspects of Child abduction, opened for signature, October 25, 1980, S. Treaty Doc. No. 11, 99th Cong., 1st Session (1980). T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (Hereinafter Hague Convention on Child Abduction) 3 See, e.g., Peter D. Trooboff, Decision: United Kingdom Case Note: Treaties-Hague Convention on Child Abduction-Wrongful Removal-Grave Risk of Harm to Child, 83 American Journal of International Law 586-590 (1989) (describes United Kingdom legislation implementing the Hague Convention). 4 See, Antoinette Sedillo Lopez, U.S/ Mexico Cross Border Issue: Child Abduction-The Need for Cooperation, New Mexico Law Review (forthcoming 1999) 5 Antoinette Sedillo Lopez, Tracking Children on the 'Net, 21:4, Family Advocate 42-44 (1999). 6 Uniform Child Custody Jurisdiction Act 9, Part 1 U.L.A. 123 et seq. (1988) 7 Parental Kidnapping Prevention Act, 28 U.S.C. 1738A. 8 Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No.11,670,1343 U.N.T. 589. 9 Id., Article 4. 10 Id. 11 Id.,Article 1. 12 Id., Article 26. The United States entered a reservation to this treaty obligation and does not provide free legal services. The Department of State seeks pro bono attorneys to assist with Hague cases. 13 Id., Article 12. 14 Id., Article 13. 15 Id. 16 Id. 17 See Lara Cardin, The Hague Convention on Civil Aspects of International Child Abduction as Applied to Non-Signatory Countries: Getting to Square One, 20 Houston. J. International Law 141 (1997).