Legal Issues on International Child Abduction

What will happen in case a child abducted from the United States and wrongly retained in the Philippines by the Filipino spouse? Can the left behind parent seek relief to pursue recovery by reason of the child’s abduction to or being wrongfully retained in the Philippines?

Once in the Philippines, the issues regarding child custody can be resolved applying Philippine laws. The Hague Convention on the Civil Aspects of International Child Abduction cannot be invoked by the left behind American spouse. Why? Because the Philippines is  not a signatory to the said convention nor  there were any international or bilateral treaties in force between the Philippines and the United States concerning international parental child abduction. Thus, the treaty remedy by which the left behind parent can pursue to recover the child’s custody is not available. Moreover, not even a US court order awarding custody to the American spouse can bind the Philippine courts or be binding in Philippine territory. There is no existing treaty or convention on the enforcement of court orders on which the  United States is a party so  much so the said decree issued by the US courts can have a binding force here in the Philippines. Therefore, that US court decree will have no other force rather than its persuasive effect once invoked in the Philippine courts.

It is important to take note that  parental child abduction is not a crime under Philippine laws. In that case, any custody issues  should be resolved by invoking jurisdiction of the Philippine courts and applying its laws. It may be true that there is an extradition treaty between the United States and the Philippines, however, the left behind parent cannot resort to extradition as parental child abduction is not an extraditable offense. The extradition process is only applicable involving the abduction of adult, a fugitive and not the child. On the other hand, it is another thing if the parent who brought the child to the Philippines is a U.S. citizen and  whose passport was revoked due to an outstanding federal Unlawful Flight to avoid Prosecution (UFAP) warrant or indictment on charges of International Parental Kidnapping (IPKCA) in violation of 18 USC Section 1204. In that case, a deportation proceedings can be initiated based on lack of a valid travel document against the taking spouse.

Under Philippine law, a child below seven (7) years old cannot be separated from the mother except for compelling reasons. This is known as the maternal preference rule. In assailing custody of the child from the taking parent (Filipino spouse) the left behind parent can initiate a petition for child custody with habeas corpus. However, the left behind parent will have to engage a Philippine attorney to initiate this  proceedings and said left behind parent should actively prosecute the petition in the Philippine courts. Or a petition for recognition and enforcement of a foreign judgment can also be initiated in case the US courts had issued a custody judgment joined with the petition for child custody and habeas corpus.  During the pendency of the main case, the left behind parent, petitioner before the Philippine courts, can move for an order regarding temporary custody or  ask for a court order to exercise his/her visitation rights. Even if the left behind parent was given the temporary custody he/she cannot bring the child out of the country pending the resolution of the main issue involving custody. The other spouse can resort to asking the court to issue a hold departure order (HDO) for the child to prevent the left behind parent (petitioner) from taking the child out of the country.

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