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ALLEGATIONS OF CHILD ABUSE IN CUSTODY DISPUTES AND VISITATION BATTLES

Stephen M. Komie, Komie & Associates, Chicago, IL and Elizabeth Butler, Attorney at Law, Chicago, IL

Copyright 1998 by Stephen M. Komie & Elizabeth Butler. All rights reserved.
I. Scope of Chapter
A marriage ending in divorce leads to disappointment, pain, and recriminations arising from unfulfilled expectations. Accusations of child abuse or maltreatment can either be the cause of the divorce or a tool to further the agenda of one spouse. In any case, accusations arising from divorce require extremely careful examination to determine their validity.
A divorce case involving an allegation of child maltreatment requires a basic understanding of matrimonial law, criminal law, and juvenile law.   In addition, the practitioner must have knowledge of the fields of emergency medicine, pediatrics, psychology and psychiatry, as well as social  work.
This chapter will attempt to assist the practitioner in raising allegations or, in the alternative, preparing a defense of allegations of child abuse.
II. Definitions
The practitioner will likely encounter these terms and techniques when litigating the issue of child abuse in a divorce matter.
A. Child or Minor
A child, or minor, is defined by statute in the criminal code, the Juvenile Court Act, and the Illinois Marriage and Dissolution of Marriage   Act  as a person under the age of 18 years who, under law, has special protection from neglect or contact of a physical or sexual nature.
B. Allegation
An allegation is a claim of child abuse or maltreatment of a child made by a party or descendant thereof, or stepchild in cases involving dissolution of marriage, juvenile law, and/or criminal law. These claims can relate to physical, mental, or sexual abuse or neglect of a child.    Allegations have not been substantiated by the court and are therefore unproven.
Warning to Practitioners: Do not make accusations of child abuse outside of the court pleadings or the courtroom. You are accusing someone of committing a crime which is liable and slander per se.
C. False Allegations
A false allegation is one made by a child or party to any type of legal proceeding which, after examination of the evidence, is unfounded or not true.
D. True Allegations
A true allegation is one made by a child or party to any type of legal proceeding which, after examination of the evidence, is founded or truthful.
E. Posttraumatic Stress Disorder
The Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV) identifies posttraumatic stress disorder as an anxiety disorder resulting from, among other things, experiencing an extreme traumatic event, such as actual or threatened serious physical injury to oneself or to another. The diagnosis does not identify the underlying causation of the condition, it merely describes a medical condition which may or may not exist.
F. Child Sexual Abuse Accommodation Syndrome
Child Sexual Abuse Accommodation Syndrome (CSAAS) is a subcategory of post-traumatic stress syndrome. The conditions of Child Sexual Abuse Accommodation Syndrome are secrecy regarding the abuse, an inability to stop the abuse, entrapment by the abuser and subsequent accommodation, delayed and/or unconvincing disclosure of the abuse, and a retraction of the allegations in order to protect  family members. Any practitioner relying on CSAAS must be aware that the author of this syndrome created it as a description for   purposes  of treatment only. It is not a diagnosis which proves that a child has been abused. Frye issues arise with respect to the   admissibility of  evidence as it is not accepted with scientific certainty in the medical community. Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923),  People v. Baynes, 88 Ill. 2d 225 (1981). (See section VII B., Examining the Mental Health Expert for a discussion on the Frye standards of admissibility of scientific evidence.)
G. Leading/Non-Leading Questions
A child=s ability to accurately recall an event is influenced by the adult conducting the interview. Studies have found that children will make erroneous statements as to allegations of abuse if they are repeatedly questioned by the use of leading questions. The most reliable statement   that can be elicited from a child is one that is made freely while in a related setting. Unfortunately, those circumstances can not be reproduced  by an investigator or psychologist examining the child once allegations of abuse have been raised by a spouse. Nevertheless, interviewing a  child witness during the course of a divorce should be done in a neutral, comfortable surrounding by an individual skilled in non-leading interview techniques.
The manner in which the interview of a child is conducted can influence what a child says. A non-leading question is open-ended and does not   suggest and answer. For example, What did you and your Daddy do yesterday?@ gives the child a range of possible answers.
A leading question, on the other hand, encourages a child to reveal abuse by the form of the question and by the encouragement a child often receives once the statement is made. Specifically, a leading question is one which limits the range of answers a child can give. For example,  Where on your private parts did Daddy touch you?@ assumes that the touching occurred and invites the child only to identify a specific area  on the body. Leading questions create a mental image of an occurrence. When a child is frequently asked leading questions, the child will speak from the image as if that image were the truth.
H. Anatomically Detailed Dolls
Anatomically detailed dolls (ADD) are those designed with genitalia which, in the past, were frequently used by examiners to introduce the topic of sexual activity to a child. These dolls were once called 'anatomically correct' dolls, yet because they are not anatomically correct, the name has changed. There are no standards governing the dolls' design or interviewing techniques. The child=s reaction to the doll is subject to the highly subjective opinion of the interviewer. These dolls should never be used during an investigation.
III. Raising the Allegation
The parent seeking custody must specifically allege abuse in the initial Complaint or in a subsequent petition to the court. Frank v. Frank, 34 Ill.App.3d 957, 342 N.E. 2d 404 (2 Dist. 1975).
IV. Responding to the Allegation
It is necessary for the respondent to file a request for affirmative relief or to file a cross-complaint which includes a petition for custody. The cross-complaint must allege that the accusations of child abuse are false and that the respondent/counter-petitioner is the proper party to have  custody of the child. Failure to do so leaves the court without authority to award custody to the respondent if the petitioner=s request is denied or if the court wishes to Punish@ the maker of the false allegation. Bartzen v. Bartzen, 339 Ill.App.376, 89 N.E. 2d 854 (1950).
V. Statutory Protection of Children
A. Automatic Injunction
The Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/501.1, assumes that both parties are fit parents. Both parties have rights to visitation barring any evidence that the child will be endangered while under the care of that parent. As a safeguard, the statute automatically  enjoins the petitioner upon filing, and the respondent upon service of summons, from abusing a child during the pendancy of the divorce action.
750 ILCS 5/501.1 states, in part:
Upon service of summons and petition or praecipe filed under the Illinois Marriage and Dissolution of Marriage Act [750 ILCS 5/101 et seq.] or upon the filing of the respondent's appearance in the proceeding, whichever first occurs, a dissolution action stay shall be in effect against both parties and their agents and employees, without bond or further notice, until a final judgment is entered, the proceeding is dismissed, or until further order of the court:
(2) restraining both parties from physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other party or the minor children of either party; and
(3) restraining both parties from removing any minor child of either party from the State of Illinois or from concealing any such child from the other party, without the consent of the other party or an order of the court.
B. Temporary Relief
If a party believes that the child is being abused, despite the existence of the stay imposed by 750 ILCS 5/501.1, then the party may  file for temporary relief pursuant to 750 ILCS 5/501, which states in part:
(1) Either party may move for: 
(a) a temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:
    (i) enjoining a party from removing a child from the jurisdiction of the court;
    (ii) enjoining a party from striking or interfering with the personal liberty of the other party or of any child; 
    (iii) or providing other injunctive relief proper in the circumstances; 
    (iv) or other appropriate relief.
(b) The court may issue a temporary restraining order without requiring notice to the other party only if it finds, on the basis of the moving affidavit or other evidence, that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed.
The parent believing that the child has been abused while in the control of another parent will need to resort to a temporary restraining order pending the custody hearing. The parent seeking to limit visitation should request an order which reasonably addresses the perceived danger. Restrictions may consist of no weekend or unsupervised visits, or, if the parent=s paramour is the alleged perpetrator, a no contact order placed on the paramour, or a no contact order placed on the parent.
The parent resisting any limitation of contact with the children should attack such restrictions pending the outcome of a full hearing. Also open to attack are any restrictions which are overly broad or do not address the alleged danger to the child.
Note: No practitioner should accept the placement of restrictions upon visitation without a full evidentiary hearing.     Unfortunately, once restrictions are in place, they are almost impossible to remove.
VI. Discovery
A. Introduction
Much of the formal discovery in these cases will focus on the opposing party=s expert witnesses. Interrogatories and depositions of the expert witnesses will be useful in anticipation of trial. For the responding party, during discovery it is necessary to look for answers in the broader context of the litigation.
B. Investigations
The practitioner needs to be creative in gathering as much evidence as possible for the case. Furthermore, because the child may not be mature enough to tell what has occurred, it will be necessary to piece together those facts from various other sources. Individuals having regular contact with the minor, such as school teachers, babysitters, and other instructors, are good sources relating to the long-term behavior of the child.
When refuting an allegation of abuse, it is necessary to look at the broad picture to uncover motivations for these allegations. Answers may be found in the financial position of the accusing parent, the quality of the visits between the parent and child, the status of the court proceedings, and feelings such as anger, jealousy, or betrayal by the accusing spouse.
Other information which is crucial to obtain is the nature of the circumstances of allegations of child abuse. Did the child make the statement? If so, who was present when the statement was made? Has the child repeated the statement to others? Is there physical evidence which corroborates the allegation?
It is also essential to understand the child=s maturity level. Account must be taken of the child=s age and any disabilities; what is that child=s ability to recall events? How suggestive is the child to leading questions? What type of relationship and frequency of contact does the child have with the reporter?
Finally, it is important to try to piece together the events immediately following the alleged discovery of the abuse. Specifically, it is useful to determine who the child spoke to about the allegations, and how often. In a worst case scenario, a child may be led to make a false accusation by leading questions of a vengeful or over-anxious parent. If a child is forced to repeat and elaborate on that accusation the child will eventually believe that statement to be true.
C. Interrogatories
The practitioner should always initiate interrogatories for experts. Supreme Court Rule 213(g) allows parties to obtain the identity and qualifications of the opposing party=s expert, the subject matter on which the expert will testify, the expert=s conclusions and opinions, and the reports generated by the expert. At the time of this writing, there is no case law interpreting this rule. (Caveat: This rule must be read in conjunction with Supreme Court Rule 201 and 218.)
D. Depositions
Depositions of the child-declarant may be necessary to determine the intelligence and maturity of the child, the statements made, and the conditions under which the statements were made. It is to be expected that hearsay statements of the child will be offered at trial. In order to meet these statements, a deposition of the child-declarant is required. There is a statutory criteria for the admission of hearsay statements, 735 ILCS 5/8-2061 and 750 ILCS 5/606(e). (For the discussion on hearsay statements, see section on Trial, A. Child as Witness, (iii) Hearsay Exceptions.) Additional depositions should be taken of all persons who would provide foundation for the admission of hearsay statements.
Depositions should also be conducted of all the medical doctors, psychologists, social workers and other therapists who have been involved with the family. Finally, depositions should be conducted of those persons who see the child outside of the home on a regular basis, such as day care providers, teachers, neighbors, and parents of the child's friends.
Before taking a deposition, the practitioner should be aware of the Illinois Supreme Court Rules governing the taking of depositions, i.e., Rules 203, 204, 205, 206 (particularly subsection d), and 207 through 212.
The attorney seeking to take a deposition should petition the court for a modification of the three-hour time limit given the complexity of the depositions and the nature of the case.
E. Mental Examinations of Parties
One or more parties may undergo mental or physical examinations during the custody proceedings. When allegations of child abuse are   made in a custody dispute, the physical and mental condition of the child and parents are at issue. In re Cohen, 189 Ill.App.3d 418, 545 N.E. 2d 362, 136 Ill.Dec. 838 (1 Dist 1989), appeal denied, 129 Ill.2d 562, 550 N.E.2d 554, 140 Ill.Dec 669 (1990).
Supreme Court Rule 215(a) states in part:
In any action in which the physical or mental condition of a party or of a person in the party=s custody or legal control is in controversy, the court upon notice and on motion made within a reasonable time before the trial, may order such a party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved. The motion shall suggest the identity of the examiner and set forth the examiner=s specialty or discipline.
The judge has the discretion as to which examiner will be appointed. Washburn v. Terminal R.R. Assn, 114 Ill.App. 2d 95, 252 N.E.2d 389, (5 Dist 1969). The court will consider the examiner suggested by the parties, but need not accept the suggestion.
Selecting your own examiner allows you the ultimate discretion in determining one that is most qualified to assess your situation. However, a judge may question the credibility of your witness given that your expert may be influenced by being in your employ. Supreme Court Rule  215 prevents the assumption of bias by giving the judge the discretion to appoint an examiner suggested by you. One of the drawbacks to  this approach is that you are limited by that examiner=s recommendations.

F. Medical Examinations of Child
Many times the clinical physician=s reports will include the phrase Rule out child abuse@. This phrase is the mission given the doctor in conducting the examination. It does not mean that the physician has ruled out the possibility of child abuse. Similarly, medical records may include the phrase Suspected child abuse@. This is not a medical diagnosis but merely a descriptive term used to describe the reason the child is presented for examination to the doctor. It may never be testified to in a courtroom as it is neither an opinion nor an assessment by the physician to a reasonable degree of medical certainty.
When examining a child for the possibility of sexual or physical abuse, the physician reviews four areas: 1) The subjective history as reported by the child or the child=s caretaker to the physician; 2) an objective examination of the physician of the child; 3) the physician=s diagnosis or opinion; and 4) the treatment plan.
Some medical examinations of children suspected of being abused find no medical evidence of child abuse. Either the type of abuse, such as fondling, leaves no distinguishing marks, or any trauma suffered has healed. However, the doctor may find no physical medical evidence of child abuse but may make a diagnosis of child abuse by history, such as a diagnosis of child abuse Consistent with the history@. The practitioner should be very careful to ascertain whether it is a case of child abuse by history or by medical evidence of trauma.
G. Use of Videotapes
It is strongly recommended to have the court order that all examinations of the child be videotaped. This will ensure that these examinations will be handled properly.
However, videotapes of future examinations will not correct the influence of repeated, leading questioning of the child by untrained individuals or vengeful parents.
The use of Aa day in the life of@ videotapes in order to prove a child=s well-being in a certain placement are not allowed in custody disputes. Courts view these tapes as potentially detrimental to a child. In re Marriage of Willis, 234 Ill.App.3d 156, 599 N.E.2d 179, 174 Ill.Dec 633 (3rd Dist 1992).
VII. Trial
A. Child as Witness
Generally, divorce court judges do not favor children testifying in a child custody case. However, a child statement may be introduced into evidence by having the child take the stand, testifying in camera, or through hearsay. (See (iii) Hearsay Exceptions below.) For the best resolution of the truthfulness of allegations, it is always best for the child to make the accusations in open court where the judge can observe the child's demeanor and behavior while making claims of abuse in the presence of the accused. In Coy v. Iowa, 108 S.Ct. 2798 (1988) the Supreme Court held that a child witness testifying to the criminal charges of sexual assault behind a screen (pursuant to  Iowa statute) violated the Confrontation Clause of the United States Constitution. The court held not only was there no finding that the child  witness needed special protection, but also it would be more difficult for a witness to fabricate an event while facing the accused. In any event, the court can control presentation of the evidence to balance the needs of the witness and the litigation. However, there can never be an adequate substitution for the court's observations of the witness' demeanor during direct and cross examination.
(i). Child Testifying on Stand
A child=s competency to testify is determined by the child's intelligence, not chronological age. Intelligence is measured by the ability to recall and narrate events, and a sense of moral duty to be truthful. In re AMC, 148 Ill.App.3d 775, 500 N.E.2d 104, 102 Ill.Dec 482 (2 Dist. 1986).
(ii). In camera testimony - 750 ILCS 5/604
(a) The court may interview the child in chambers to ascertain the child=s wishes as to his custodian and as to visitation. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The court shall cause a court reporter to be present who shall make a complete record of the interview instantaneously to be part of the record in the case.
It is up to the court=s discretion as to whether the child will testify on the stand or in camera, as well as the scope of the interview. In re Marriage of Willis, 234 Ill.App.3d 156. Finding that an in camera interview is not in the child=s best interest is sufficient reason to refuse  such an interview. (In this case, the judge determined that he had received sufficient information from other sources on which to base his decision and the son=s custody preference was already known.) In re Marriage of Doty, 255 Ill.App.3d 1087, 629 N.E.2d 679, 196 Ill.Dec. 134 (5th Dist. 1994).
Thus, presenting the child as a witness is fraught with uncertainties because of the judge=s discretion as to the scope and form of the  testimony. The judge may address the allegations of abuse with the child. Depending on the child=s age, stress, and maturity, you may  hear an answer not anticipated.
(iii). Hearsay Exceptions
The child=s statement regarding abuse may be admitted through various hearsay exceptions, such as excited utterances, statements made for purposes of medical treatment, and business records of any public agency, such as the Illinois Department of Children and Family Services, called upon to investigate the allegations.
Note: Hearsay statements must be reliable to be admissible. Thus, unreliable hearsay is never admissible, no matter what the proposed exception.
The Illinois Marriage and Dissolution of Marriage Act creates a hearsay exception as to a child=s statement of abuse; 750 ILCS 5/606(e) states, in part:
Hearings.
(e) Previous statements made by the child relating to any allegations that the child is an abused or neglected child within the meaning of the Abused and Neglected Child Reporting Act, or an abused or neglected minor within the Juvenile Court Act of 1987, shall be admissible in evidence in a hearing concerning
custody or visitation with the child. No such statement, however, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.
The Illinois Code of Civil Procedure also has a provision for the out of court statements of a child regarding child abuse; 735 ILCS    5/8-2601 states, in part:
[Admissibility-Out of Court Statement by Child-Child Abuse.]
(a) An out-of-court statement made by a child under the age of 13 describing any act of child abuse or any conduct involving an unlawful sexual act performed in the presence of, with, by, or on the declarant child, or testimony by such of an out-of-court statement made by such child that he or she complained of such acts to another, is admissible in any civil proceeding, if: (1) the court conducts a hearing outside the presence of the jury and finds that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
(c) The proponent of the statement shall give the adverse party reasonable notice of an intention to offer the statement and the particulars of the statement.
(iv). Spontaneous Declarations by Child-Declarant of tender years
A child=s statement regarding physical or sexual abuse is admissible as a spontaneous declaration if, when considering the totality of  the circumstances, 1) the occurrence was sufficiently startling to produce a spontaneous and unreflecting statement, 2) there is a lack of sufficient time to fabricate, and 3) the statement relates to circumstances of the occurrence. In re Marriage of Theis, 121 Ill.App. 3d 1092, 460 N.E.2d 912, 77 Ill.Dec 608 (3rd Dist 1984). None of these three factors are singularly determinative; rather, the court must look at the totality of circumstances. People v. Hatfield, 161 Ill.App.3d 401, 514 N.E. 2d 572, 112 Ill.Dec 909 (2nd Dist 1987) Whether the out of court statement is a spontaneous declaration is within the sound discretion of the trial court. People v. Fisher 169 Ill.App.3d 785, 523 N.E.2d 368, 119 Ill.Dec 760 (3rd Dist 1988). The totality of the circumstances, not the time elapsed between the occurrence and the declaration, is the controlling factor in determining spontaneity. People v. Merideth, 152 Ill.App.3d 304, 503 N.E. 2d 1132, 105 Ill.Dec 126 (2nd Dist 1987).
The court found the child=s statement to be a spontaneous declaration when the 2 year old child woke up from her nap the day after a visit with her father hysterical and crying, the child=s young age was not consistent with the ability to fabricate such a statement when so emotionally upset, the statement of where the abuse took place matched the interior of the paternal grandmother's house, and the child's errant behavior began only after resuming visits with the father. In re Marriage of Ashby, 193 Ill.App.3d 366, 549 N.E.2d 923, 140   Ill.Dec 272 (5th Dist. 1990).
A court found a child-declarant=s statements not admissible under the spontaneous declaration exception where the mother expressed  a strong interest that the child not see her father; the child did not repeat her statement of the occurrence to someone other than her mother and grandmother; the mother took the child to a routine doctor's visit the morning following the child's statement but did not ask  the doctor to examine the child for sexual abuse; and the mother did not take the child for a complete examination as requested. In re Marriage of L.R., 202 Ill.App.3d 69, 559 N.E.2d 779, 147 Ill.Dec 439 (1st Dist)
Similarly, a child-declarant's statements were not admissible under the spontaneous declaration exception where the statements were made approximately 5 weeks after the event, and the child was interviewed at least 3 times regarding the abuse before the child made her first allegation of abuse. The repeated questioning of the child destroyed the possibility of a spontaneous declaration. People v. Zwart 151 Ill.2d 37 (1992).
B. Examining the Mental Health Expert
(i)(a). Direct examination
The practitioner must first qualify the witness as an expert witness. The expert witness' curriculum vitae should be tendered in discovery and, at trial, used as a road map during the examination on qualifications. The practitioner must then elicit from the expert specific testimony as to the diagnosis of the child, the methodology of the diagnosis, and the symptoms exhibited, followed by opinions to a   reasonable degree of medical certainty of medical conditions and causation.
(b) Admissibility of Scientific Evidence (The Frye Standard)
Illinois courts have adopted the Frye Standard for determining the admissibility of scientific evidence. In Frye v. United States, 293 F. 1013 (D.C. Cir 1923), the guiding principle for the admissibility of scientific evidence is whether the technique used was generally  accepted by the relevant scientific community.
While the Federal Rules of Evidence, Rule 702 regarding expert witnesses, abandoned the general acceptance standard of Frye (See Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993)), however, the Frye standard continues to be the standard  applied in Illinois. See People v. Miller, 173 Ill. 2d. 167 (1996).
(ii). Cross Examination
To successfully cross-examine regarding an unfavorable mental or physical examination, it is important to understand the strengths and limitations of the psychologist or social worker, and that of the psychological tests ordered. In particular, is the test the appropriate one for the issue or problem area identified? Does the test account for the stresses which your client undoubtedly feels during the court proceedings? Was the test administered and then scored under appropriate conditions? Is your client a member of the population that the test is designed to measure? Understanding the limits, purpose, and strengths of the various examinations is the key to knowing how  to attack an unfavorable examination.
C. Examination of a Medical Doctor
(i). Direct Examination
The practitioner must first qualify the witness as an expert witness. (See B(i)(a) above).
The practitioner must then establish the examination using the medical school acronym SOAP:
S : Subjective history is the description of the event as provided by the patient (child) or the caretaker;
O: Objective assessment which the physician reaches after the examination;
A: Assessment or the opinions to a reasonable degree of medical certainty of medical conditions which the patient exhibits;
P: Plan of action to treat the medical conditions which were diagnosed.
Note: Depending on who the practitioner represents, it may be important to identify that the doctor's opinion is totally based upon the history provided and not based upon the objective examination. For example, a diagnosis of child sexual abuse based upon history turns upon the truthfulness of the person providing the history to the doctor.
(ii). Cross Examination
To successfully cross-examine an unfavorable physical examination, it is important to understand the strengths and limitations of the medical doctor and the medical tests ordered. The practitioner needs to be aware of the protocol of the tests and false positives. In  particular, is the test the appropriate one for the medical issue identified? Was the test administered under appropriate conditions? Understanding the limits, purpose, and strengths of the various examinations and medical tests is the key to knowing how to attack an unfavorable examination or test result.
D. Sealing Records
Any record of an interview, report, investigation or testimony in a custody proceeding may be sealed if the court determines it necessary to protect the child=s welfare. 750 ILCS 5/606(d)
VIII. Post Trial Motions
A. Motion to Stay
When confronted with an adverse result, move for a stay of judgment. 735 ILCS 5/2-1305 states, in part:
A party intending to move to set aside any judgment...may apply to the court or to the judge in chamber for a certificate (which the judge may, in his or her discretion, grant) that there is probable cause for staying further proceedings until the order of the court on the motion.
In the event that the judgment adversely affects the rights of the party before the practitioner can timely file a post-trial motion, the practitioner should file a motion to stay. The motion to stay, if granted, prevents the judgment from going into effect until the post-trial motion is filed.
B. Motion after judgment in non-jury cases
In the event that the judgment adversely affects the rights of the party, the practitioner should file a post-trial motion to ensure protection of those issues on appeal which would favor a reversal, if successful. The filing of this motion automatically stays the judgment. 735 ILCS 5/2-1203 states, in part:
(a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification  of the judgment or to vacate the judgment or for other relief.
(b) A motion filed in apt time stays enforcement of the judgment.
C. Notice of Appeal
In the event that the post-trial motion is denied, the practitioner should consider filing a notice of appeal. Illinois Supreme Court Rule 303 states, in part:
Appeals from Final Judgments of the Circuit Courts in Civil Cases.
(1) Except as provided in paragraph (b) below, the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or non jury case, within 30 days after the entry of the order disposing of the last-pending post- judgment motion.
D. Stay of Judgment Pending Appeal
Once an appeal is filed, the party should seek to stay the enforcement of the judgment appealed. Illinois Supreme Court Rule 305  states, in part:
(b) Other Stays of Enforcements of Judgments and Appealable Orders.
On notice and motion, and an opportunity for opposing parties to be heard, the court may stay the enforcement of any  judgment, or the enforcement, force and effect of interlocutory orders or any other judicial or administrative order. The stay shall be conditioned upon such terms as are just. A bond may be required in any case, and shall be required in money judgments or to protect an appellee's interest in property.
B. Restricting a Parent=s Visitation Rights
A parent not granted custody is entitled to reasonable visitation rights. These rights may be restricted if the court finds that the visits  Endanger seriously the child=s physical, mental, moral or emotional health.@ 750 ILCS 5/607 2(B)(c).
The best interest of the child standard governs the modification of visitation rights. The endangerment standard governs the restriction of rights where there is a finding that visitation endangers the child=s physical, mental, moral, or emotional health. In re Anderson, 130 Ill. App.3d 684, 474 N.E.2d 911, 85 Ill.Dec 951 (2nd Dist 1985)
The endangerment standard is more exacting than the best interest standard. The serious endangerment standard is onerous, stringent, and rigorous. In re Marriage of Blanchard, 162 Ill.App.3d 202, 514 N.E.2d 1208, 113 Ill.Dec 197 (5th Dist 1987).
In seeking to restrict visitation, the moving party bears the burden by a preponderance of the evidence that existing visitation seriously endangers the child. Using the best interest standard in restricting visitation is a reversible error. Hildebrandt.
Remember, all of the preceding discussion of pretrial preparation and trial evidence is applicable to visitation battles.
A trial judge=s determination that the father sexually abused his daughter is sufficient reason to find that visitation seriously endangered the child=s welfare. In re Marriage of Ashby, 193 Ill.App.3d 366 (5th Dist. 1990)
Restricting visitation includes limiting the place, time, or amount of unsupervised contact. But, limiting the length of a visit in order to conform to a child=s schedule is not considered a restriction under the endangerment standard. In re Marriage of Lee, 246 Ill.App. 3d 628, 615 N.E.2d 1314, 186 Ill.Dec 257 (4th Dist 1993).
A party=s failure to comply with a visitation order does not necessarily amount to endangerment warranting restriction of visitation. The violation, one that does not endanger the child, should be brought to the court=s attention by a motion for rule to show cause.
CONCLUSION

We hope that this chapter has enlightened the attorneys who are called upon to do this work in the course of their practice. There is no set formula for the successful prosecution or defense of accusations of child abuse or maltreatment. In over 20 years of experience, we have learned that the key to resolution of these allegations is the speed in which the court appoints experts, obtains the opinions of  experts, and resolves the accusations. Delay only assists a denial of justice for both the abused and the victim of a potential hoax. Excessive delay allows a child to come to the belief abuse took place instead of testifying from actual memory of an event. It is important for the attorneys and the court to promptly sort these matters out for the protection of the child and the protection of a person who may be falsely accused. 

 

 

HAGUE CONVENTION ON THE CIVIL ASPECTS
OF INTERNATIONAL CHILD ABDUCTION

The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect, and have agreed
upon the following provisions -

CHAPTER I - SCOPE OF THE CONVENTION
Article 1
The objects of the present Convention are -
a. to secure the prompt return of children wrongfully
removed to or retained in any Contracting State; and

b. to ensure that rights of custody and of access under the
law of one Contracting State are effectively respected in other
Contracting States.

Article 2
Contracting States shall take all appropriate measures to secure
within their territories the implementation of the objects of the
Convention. For this purpose they shall use the most expeditious
procedures available.

Article 3
The removal or the retention of a child is to be considered
wrongful where -

a. it is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly or
alone, under the law of the State in which the child was
habitually resident immediately before the removal or retention;

and
b. at the time of removal or retention those rights were
actually exercised, either jointly or alone, or would have been
so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a above,
may arise in particular by operation of law or by reason of
a judicial or administrative decision, or by reason of an
agreement having legal effect under the law of that State.

Article 4
The Convention shall apply to any child who was habitually
resident in a Contracting State immediately before any breach of
custody or access rights.

The Convention shall cease to apply when the child attains the
age of 16 years.

Article 5
For the purposes of this Convention -
a. 'rights of custody' shall include rights relating to the
care of the person of the child and, in particular, the right to
determine the child's place of residence;

b. 'rights of access' shall include the right to take a
child for a limited period of time to a place other than the
child's habitual residence.

CHAPTER II - CENTRAL AUTHORITIES
Article 6
A Contracting State shall designate a Central Authority to
discharge the duties which are imposed by the Convention upon
such authorities.

Federal States, States with more than one system of law or
States having autonomous territorial organizations shall be
free to appoint more than one Central Authority and to
specify the territorial extent of their powers. Where a
State has appointed more than one Central Authority,
it shall designate the Central Authority to which applications
may be addressed for transmission to the appropriate
Central Authority within that State.

Article 7
Central Authorities shall co-operate with each other and promote
co-operation amongst the competent authorities in their respective
States to secure the prompt return of children and to achieve the
other objects of this Convention.

In particular, either directly or through any intermediary, they
shall take all appropriate measures -

a. to discover the whereabouts of a child who has been
wrongfully removed or retained;

b. to prevent further harm to the child or prejudice to
interested parties by taking or causing to be taken provisional
measures;

c. to secure the voluntary return of the child or to bring
about an amicable resolution of the issues;

d. to exchange, where desirable, information relating to the
social background of the child;

e. to provide information of a general character as to the
law of their State in connection with the application of the
Convention;

f. to initiate or facilitate the institution of judicial or
administrative proceedings with a view to obtaining the
return of the child and, in a proper case, to make
arrangements for organizing or securing the effective
exercise of rights of access;

g. where the circumstances so require, to provide or
facilitate the provision of legal aid and advice, including the
participation of legal counsel and advisers;

h. to provide such administrative arrangements as may be
necessary and appropriate to secure the safe return of the child;

i. to keep other each other informed with respect to the
operation of this Convention and, as far as possible, to
eliminate any obstacles to its application.

CHAPTER III - RETURN OF CHILDREN
Article 8
Any person, institution or other body claiming that a child has
been removed or retained in breach of custody rights may apply
either to the Central Authority of the child's habitual residence
or to the Central Authority of any other Contracting State for
assistance in securing the return of the child.

The application shall contain -
a. information concerning the identity of the applicant, of
the child and of the person alleged to have removed or retained
the child;

b. where available, the date of birth of the child;
c. the grounds on which the applicant's claim for return of
the child is based;

d. all available information relating to the whereabouts of
the child and the identity of the person with whom the child is
presumed to be.

The application may be accompanied or supplemented by -
e. an authenticated copy of any relevant decision or
agreement;

f. a certificate or an affidavit emanating from a Central
Authority, or other competent authority of the State of the
child's habitual residence, or from a qualified person,
concerning the relevant law of that State;

g. any other relevant document.
Article 9
If the Central Authority which receives an application referred
to in Article 8 has reason to believe that the child is in
another Contracting State, it shall directly and without delay
transmit the application to the Central Authority of that
Contracting State and inform the requesting Central Authority,
or the applicant, as the case may be.

Article 10
The Central Authority of the State where the child is shall take
or cause to be taken all appropriate measures in order to obtain
the voluntary return of the child.

Article 11
The judicial or administrative authorities of Contracting States
shall act expeditiously in proceedings for the return of
children.

If the judicial or administrative authority concerned has not
reached a decision within six weeks from the date of commencement
of the proceedings, the applicant or the Central Authority of the
requested State, on its own initiative or if asked by the Central
Authority of the requesting State, shall have the right to request
the Central Authority of the requested State, that Authority shall
transmit the reply to the Central Authority of the requesting State,
or to the applicant, as the case may be.

Article 12
Where a child has been wrongfully removed or retained in terms of
Article 3 and, at the date of the commencement of the proceedings
before the judicial or administrative authority of the Contracting
State where the child is, a period of less than one year has elapsed
from the date of the wrongful removal or retention, the authority
concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the
proceedings have been commenced after the expiration of the
period of one year referred to in the preceding paragraph, shall
also order the return of the child, unless it is demonstrated
that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested
State has reason to believe that the child has been taken to
another State, it may stay the proceedings or dismiss the
application for the return of the child.

Article 13
Notwithstanding the provisions of the preceding Article, the
judicial or administrative authority of the requested State is
not bound to order the return of the child if the person,
institution or other body which opposes its return establishes
that -

a. the person, institution or other body having the care of
the person of the child was not actually exercising the custody
rights at the time of removal or retention, or had consented to
or subsequently acquiesced in the removal of retention; or

b. 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.

The judicial or administrative authority may also refuse
to order the return of the child if it finds that the child objects
to being returned and has attained an age and degree of maturity
at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article,
the judicial and administrative authorities shall take into account
the information relating to the social background of the child
provided by the Central Authority or other competent authority
of the child's habitual residence.

Article 14
In ascertaining whether there has been a wrongful removal of
retention within the meaning of Article 3, the judicial or
administrative authorities of the requested State may take notice
directly of the law of, and of judicial or administrative
decisions, formally recognized or not in the State of the
habitual residence of the child, without recourse to the specific
procedures for the proof of that law or for the recognition of
foreign decisions which would otherwise be applicable.

Article 15
The judicial or administrative authorities of a Contracting
State may, prior to the making of an order for the return
of the child, request that the applicant obtain from the
authorities of the State of the habitual residence of the
child a decision or other determination that the removal
or retention was wrongful within the meaning of Article 3
of the Convention, where such a decision or determination
may be obtained in that State. The Central Authorities of
the Contracting States shall so far as practicable assist
applicants to obtain such a decision or determination.

Article 16
After receiving notice of a wrongful removal or retention of a
child in the sense of Article 3, the judicial or administrative
authorities of the Contracting State to which the child has been
removed or in which it has been retained shall not decide on the
merits of rights of custody until it has been determined that the
child is not to be returned under this Convention or unless an
application under the Convention is not lodged within a
reasonable time following receipt of the notice.

Article 17
The sole fact that a decision relating to custody has been given
in or is entitled to recognition in the requested State shall not be
a ground for refusing to return a child under this Convention,
but the judicial or administrative authorities of the requested
State may take account of the reasons for that decision in
applying this Convention.

Article 18
The provisions of this Chapter do not limit the power of a
judicial or administrative authority to order the return of the
child at any time.

Article 19
A decision under this Convention concerning the return of the
child shall not be taken to be determination on the merits of any custody issue.

Article 20
The return of the child under the provision of Article 12 may be
refused if this would not be permitted by the fundamental
principles of the requested State relating to the protection of
human rights and fundamental freedoms.

CHAPTER VI - RIGHTS OF ACCESS
Article 21
An application to make arrangements for organizing or securing
the effective exercise of rights of access may be presented to
the Central Authorities of the Contracting States in the same way
as an application for the return of a child.

The Central Authorities are bound by the obligations of
co-operation which are set forth in Article 7 to promote the
peaceful enjoyment of access rights and the fulfillment of any
conditions to which the exercise of such rights may be subject.
The central Authorities shall take steps to remove, as far as possible,
all obstacles to the exercise of such rights. The Central Authorities,
either directly or through intermediaries, may initiate or assist in the
institution of proceedings with a view to organizing or protecting
these rights and securing respect for the conditions to which the
exercise of these rights may be subject.

Article 22
No security, bond or deposit, however described, shall be
required to guarantee the payment of costs and expenses in the
judicial or administrative proceedings falling within the scope
of this Convention.

Article 23
No legalization or similar formality may be required in the
context of this Convention.

Article 24
Any application, communication or other document sent to the
Central Authority of the requested State shall be in the original
language, and shall be accompanied by a translation into the
official language or one of the official languages of the
requested State or, where that is not feasible, a translation
into French or English.

However, a Contracting State may, by making a reservation in
accordance with Article 42, object to the use of either French
or English, but not both, in any application, communication
or other document sent to its Central Authority.

Article 25
Nationals of the Contracting States and persons who are
habitually resident within those States shall be entitled in
matters concerned with the application of this Convention to
legal aid and advice in any other Contracting State on the same
conditions as if they themselves were nationals of and habitually
resident in that State.

Article 26
Each Central Authority shall bear its own costs in applying this
Convention.

Central Authorities and other public services of Contracting
States shall not impose any charges in relation to applications
submitted under this Convention. In particular, they may not
require any payment from the applicant towards the costs and
expenses of the proceedings or, where applicable, those arising
from the participation of legal counsel or advisers. However,
they may require the payment of the expenses incurred or to be
incurred in implementing the return of the child.

However, a Contracting State may, by making a reservation in
accordance with Article 42, declare that it shall not be bound to
assume any costs referred to in the preceding paragraph resulting
from the participation of legal counsel or advisers or from court
proceedings, except insofar as those costs may be covered by its
system of legal aid and advice.

Upon ordering the return of a child or issuing an order
concerning rights of access under this Convention, the judicial
or administrative authorities may, where appropriate, direct the
person who removed or retained the child, or who prevented the
exercise of rights of access, to pay necessary expenses incurred
by or on behalf of the applicant, including travel expenses, any
costs incurred or payments made for locating the child, the costs of
legal representation of the applicant, and those of returning the child.

Article 27
When it is manifest that the requirements of this Convention are
not fulfilled or that the application is otherwise not well
founded, a Central Authority is not bound to accept the application.
In that case, the Central Authority shall forthwith
inform the applicant or the Central Authority through which the
application was submitted, as the case may be, of its reasons.

Article 28
A Central Authority may require that the application be
accompanied by a written authorization empowering it to act on
behalf of the applicant, or to designate a representative so to
act.

Article 29
This Convention shall not preclude any person, institution or
body who claims that there has been a breach of custody or
access rights within the meaning of Article 3 or 21 from
applying directly to the judicial or administrative authorities
of a Contracting State, whether or not under the provisions
of this Convention.

Article 30
Any application submitted to the Central Authorities or directly
to the judicial or administrative authorities of a Contracting
State in accordance with the terms of this Convention, together
with documents and any other information appended thereto or
provided by a Central Authority, shall be admissible in the
courts or administrative authorities of the Contracting
States.

Article 31
In relation to a State which in matters of custody of children
has two or more systems of law applicable in different territorial
units -

a. any reference to habitual residence in that State shall
be construed as referring to habitual residence in a territorial
unit of that State;

b. any reference to the law of the State of habitual
residence shall be construed as referring to the law of the
territorial unit in that State where the child habitually
resides.

Article 32
In relation to a State which in matters of custody of children
has two or more systems of law applicable to different categories
of persons, any reference to the law of that State shall be construed
as referring to the legal system specified by the law of that State.

Article 33
A State within which different territorial units have their own
rules of law in respect of custody of children shall not be bound
to apply this Convention where a State with a unified system of
law would not be bound to do so.

Article 34
This Convention shall take priority in matters within its scope
over the Convention of 5 October 1961 concerning the powers of
authorities and the law applicable in respect of the protection
of minors, as between Parties to both Conventions. Otherwise the
present Convention shall not restrict the application of an
international instrument in force between the State of origin
and the State addressed or other law of the State addressed
for the purposes of obtaining the return of a child who has been
wrongfully removed or retained or of organizing access rights.

Article 35
This Convention shall apply as between Contracting States
only to wrongful removals or retentions occurring after its
entry into force in those States.

Where a declaration has been made under Article 39 or 40, the
reference in the preceding paragraph to a Contracting
State shall be taken to refer to the territorial unit or
units in relation to which this Convention applies.

Article 36
Nothing in this Convention shall prevent two or more Contracting
State, in order to limit the restrictions to which the return of
the child may be subject, from agreeing among themselves to
derogate from any provision of this Convention which may imply
such a restriction.

CHAPTER VI - FINAL CLAUSES
Article 37
The Convention shall be open for signature by the States which
were Members of the Hague Conference on Private International
Law at the time of its Fourteenth Session.

It shall be ratified, accepted or approved and the instruments of
ratification, acceptance or approval shall be deposited with the
Ministry of Foreign Affairs of the Kingdom of the Netherlands.

Article 38
Any other State may accede to the Convention. The instrument of
accession shall be deposited with the Ministry of Foreign Affairs
of the Kingdom of the Netherlands.

The Convention shall enter into force for a State acceding to it
on the first day of the third calendar month after the deposit of its
instrument of accession.

The accession will have effect only as regards the relations
between the acceding State and such Contracting States as will
have declared their acceptance of the accession. Such a
declaration will also have to be made by any Member State
ratifying, accepting or approving the Convention after an
accession. Such declaration shall be deposited at the Ministry
of Foreign Affairs of the Kingdom of the Netherlands; this
Ministry shall forward, through diplomatic channels, a
certified copy to each of the Contracting States.

The Convention will enter into force as between the acceding
State and the State that has declared its acceptance of the
accession on the first day of the third calendar month after the
deposit of the declaration of acceptance.

Article 39
Any State may, at the time of signature, ratification,
acceptance, approval or accession, declare that the Convention
shall extend to all the territories for the international
relations of which it is responsible, or to one or more of
them. Such a declaration shall take effect at the time the
Convention enters into force for that State.

Such declaration, as well as any subsequent extension, shall be
notified to the Ministry of Foreign Affairs of the Kingdom of the
Netherlands.

Article 40
If a Contracting State has two or more territorial units in which
different systems of law are applicable in relation to matters
dealt with in this Convention, it may at the time of signature,
ratification, acceptance, approval or accession declare that this
Convention shall extend to all its territorial units or only to one
or more of them and may modify this declaration by submitting
another declaration at any time.

Any such declaration shall be notified to the Ministry of Foreign
Affairs of the Kingdom of the Netherlands and shall state expressly
the territorial units to which the Convention applies.

Article 41
Where a Contracting State has a system of government under which
executive, judicial and legislative powers are distributed
between central and other authorities within that State, its
signature or ratification, acceptance or approval of, or
accession to this Convention, or its making of any declaration
in terms of Article 40 shall carry no implication as to the
internal distribution of powers within that State.

Article 42
Any State may, not later than the time of ratification,
acceptance, approval or accession, or at the time of making a
declaration in terms of Article 39 or 40, make one or both of
the reservations provided for in Article 24 and Article 26,
third paragraph. No other reservations shall be permitted.

Any State may at any time withdraw a reservation it has made.
The withdrawal shall be notified to the Ministry of Foreign Affairs
of the Kingdom of the Netherlands. The reservation shall cease to
have effect on the first day of the third calendar month after the
notification referred to in the preceding paragraph.

Article 43
The Convention shall enter into force on the first day of the
third calendar month after the deposit of the third instrument
of ratification, acceptance, approval or accession referred to
in Articles 37 and 38.

Thereafter the Convention shall enter into force -
1. for each State ratifying, accepting, approving or
acceding to it subsequently, on the first day of the third
calendar month after the deposit of its instrument of
ratification, acceptance, approval or accession;

2. for any territory or territorial unit to which the
Convention has been extended in conformity with
Article 39 or 40, on the first day of the third calendar
month after the notification referred to in that Article.

Article 44
The Convention shall remain in force for five years
from the date of its entry into force in accordance
with the first paragraph of Article 43 even for
States which subsequently have ratified, accepted,
approved it or acceded to it.

If there has been no denunciation, it shall be renewed tacitly
every five years.

Any denunciation shall be notified to the Ministry of Foreign
Affairs of the Kingdom of the netherlands at least six months
before the expiry of the five year period. It may be limited to
certain of the territories or territorial units to which the
Convention applies.

The denunciation shall have effect only as regards the State
which has notified it. The Convention shall remain in force for
the other Contracting States.

Article 45
The Ministry of Foreign Affairs of the Kingdom of the
Netherlands shall notify the States Members of the Conference,
and the States which have acceded in accordance with Article 38,
of the following -

1. the signatures and ratifications, acceptances and
approvals referred to in Article 37;

2. the accession referred to in Article 38;
3. the date on which the Convention enters into force in
accordance with Article 43;

4. the extensions referred to in Article 39;
5. the declarations referred to in Articles 38 and 40;
6. the reservations referred to in Article 24 and Article
26, third paragraph, and the withdrawals referred to in Article 42;

7. the denunciation referred to in Article 44.
In witness whereof the undersigned, being duly authorized
thereto, have signed this Convention.

Done at The Hague, on the 25th day of October, 1980, in the
English and French languages, both texts being equally authentic,
in a single copy which shall be deposited in the archives of the
Government of the Kingdom of the Netherlands, and of which
a certified copy shall be sent, through diplomatic channels, to each
of the States Members of the Hague Conference on Private International
Law at the date of its Fourteenth Session.

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International Adoption & Child Abduction
INTERNATIONAL CHILD ABDUCTION REMEDIES (ICARA)
Sec.
11601. Findings and declarations.
(a) Findings.
(b) Declarations.
11602. Definitions.
11603. Judicial remedies.
(a) Jurisdiction of courts.
(b) Petitions.
(c) Notice.
(d) Determination of case.
(e) Burdens of proof.
(f) Application of Convention.
(g) Full faith and credit.
(h) Remedies under Convention not exclusive.
11604. Provisional remedies.
(a) Authority of courts.
(b) Limitation on authority.
11605. Admissibility of documents.
11606. United States Central Authority.
(a) Designation.
(b) Functions.
(c) Regulatory authority.
(d) Obtaining information from Parent Locator Service.
11607. Costs and fees.
(a) Administrative costs.
(b) Costs incurred in civil actions.
11608. Collection, maintenance, and dissemination of information.
(a) In general.
(b) Requests for information.
(c) Responsibility of government entities.
(d) Information available from Parent Locator Service.
(e) Record keeping.
11609. Interagency coordinating group.
11610. Authorization of appropriations.

Sec. 11601. Findings and declarations
(a) Findings
The Congress makes the following findings:
(1) The international abduction or wrongful retention of children is harmful to their well-being.
(2) Persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention.
(3) International abductions and retentions of children are increasing, and only concerted cooperation pursuant to an international agreement can effectively combat this problem.
(4) The Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980, establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights. Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies. The Convention provides a sound treaty framework to help resolve the problem of international abduction and retention of children and will deter such wrongful removals and retentions.
(b) Declarations
The Congress makes the following declarations:
(1) It is the purpose of this chapter to establish procedures for the implementation of the Convention in the United States.
(2) The provisions of this chapter are in addition to and not in lieu of the provisions of the Convention.
(3) In enacting this chapter the Congress recognizes -
(A) the international character of the Convention; and
(B) the need for uniform international interpretation of the Convention.
(4) The Convention and this chapter empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims.
REFERENCES IN TEXT
This chapter, referred to in subsec. (b), was in the original ''this Act'' meaning Pub. L. 100-300, Apr. 29, 1988, 102 Stat. 437, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note below and Tables.
SHORT TITLE
Section 1 of Pub. L. 100-300 provided that: ''This Act (enacting this chapter and amending section 663 of this title) may be cited as the 'International Child Abduction Remedies Act'.''
Sec. 11602. Definitions
For the purposes of this chapter -
(1) the term ''applicant'' means any person who, pursuant to the Convention, files an application with the United States Central Authority or a Central Authority of any other party to the Convention for the return of a child alleged to have been wrongfully removed or retained or for arrangements for organizing or securing the effective exercise of rights of access pursuant to the Convention;
(2) the term ''Convention'' means the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980;
(3) the term ''Parent Locator Service'' means the service established by the Secretary of Health and Human Services under section 653 of this title;
(4) the term ''petitioner'' means any person who, in accordance with this chapter, files a petition in court seeking relief under the Convention;
(5) the term ''person'' includes any individual, institution, or other legal entity or body;
(6) the term ''respondent'' means any person against whose interests a petition is filed in court, in accordance with this chapter, which seeks relief under the Convention;
(7) the term ''rights of access'' means visitation rights;
(8) the term ''State'' means any of the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States; and
(9) the term ''United States Central Authority'' means the agency of the Federal Government designated by the President under section 11606(a) of this title.
Sec. 11603. Judicial remedies
(a) Jurisdiction of courts
The courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the Convention.
(b) Petitions
Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.
(c) Notice
Notice of an action brought under subsection (b) of this section shall be given in accordance with the applicable law governing notice in interstate child custody proceedings.
(d) Determination of case
The court in which an action is brought under subsection (b) of this section shall decide the case in accordance with the Convention.
(e) Burdens of proof
(1) A petitioner in an action brought under subsection (b) of this section shall establish by a preponderance of the evidence -
(A) in the case of an action for the return of a child, that the child has been wrongfully removed or retained within the meaning of the Convention; and
(B) in the case of an action for arrangements for organizing or securing the effective exercise of rights of access, that the petitioner has such rights.
(2) In the case of an action for the return of a child, a respondent who opposes the return of the child has the burden of establishing -
(A) by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies; and
(B) by a preponderance of the evidence that any other exception set forth in article 12 or 13 of the Convention applies.
(f) Application of Convention
For purposes of any action brought under this chapter -
(1) the term ''authorities'', as used in article 15 of the Convention to refer to the authorities of the state of the habitual residence of a child, includes courts and appropriate government agencies;
(2) the terms ''wrongful removal or retention'' and ''wrongfully removed or retained'', as used in the Convention, include a removal or retention of a child before the entry of a custody order regarding that child; and
(3) the term ''commencement of proceedings'', as used in article 12 of the Convention, means, with respect to the return of a child located in the United States, the filing of a petition in accordance with subsection (b) of this section.
(g) Full faith and credit
Full faith and credit shall be accorded by the courts of the States and the courts of the United States to the judgment of any other such court ordering or denying the return of a child, pursuant to the Convention, in an action brought under this chapter.
(h) Remedies under Convention not exclusive
The remedies established by the Convention and this chapter shall be in addition to remedies available under other laws or international agreements.
Sec. 11604. Provisional remedies
(a) Authority of courts
In furtherance of the objectives of article 7(b) and other provisions of the Convention, and subject to the provisions of subsection (b) of this section, any court exercising jurisdiction of an action brought under section 11603(b) of this title may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition.
(b) Limitation on authority
No court exercising jurisdiction of an action brought under section 11603(b) of this title may, under subsection (a) of this section, order a child removed from a person having physical control of the child unless the applicable requirements of State law are satisfied.
Sec. 11605. Admissibility of documents
With respect to any application to the United States Central Authority, or any petition to a court under section 11603 of this title, which seeks relief under the Convention, or any other documents or information included with such application or petition or provided after such submission which relates to the application or petition, as the case may be, no authentication of such application, petition, document, or information shall be required in order for the application, petition, document, or information to be admissible in court.
Sec. 11606. United States Central Authority
(a) Designation
The President shall designate a Federal agency to serve as the Central Authority for the United States under the Convention.
(b) Functions
The functions of the United States Central Authority are those ascribed to the Central Authority by the Convention and this chapter.
(c) Regulatory authority
The United States Central Authority is authorized to issue such regulations as may be necessary to carry out its functions under the Convention and this chapter.
(d) Obtaining information from Parent Locator Service
The United States Central Authority may, to the extent authorized by the Social Security Act (42 U.S.C. 301 et seq.), obtain information from the Parent Locator Service.
Sec. 11607. Costs and fees
(a) Administrative costs
No department, agency, or instrumentality of the Federal Government or of any State or local government may impose on an applicant any fee in relation to the administrative processing of applications submitted under the Convention.
(b) Costs incurred in civil actions
(1) Petitioners may be required to bear the costs of legal counsel or advisors, court costs incurred in connection with their petitions, and travel costs for the return of the child involved and any accompanying persons, except as provided in paragraphs (2) and (3).
(2) Subject to paragraph (3), legal fees or court costs incurred in connection with an action brought under section 11603 of this title shall be borne by the petitioner unless they are covered by payments from Federal, State, or local legal assistance or other programs.
(3) Any court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.
Sec. 11608. Collection, maintenance, and dissemination of information
(a) In general
In performing its functions under the Convention, the United States Central Authority may, under such conditions as the Central Authority prescribes by regulation, but subject to subsection (c) of this section, receive from or transmit to any department, agency, or instrumentality of the Federal Government or of any State or foreign government, and receive from or transmit to any applicant, petitioner, or respondent, information necessary to locate a child or for the purpose of otherwise implementing the Convention with respect to a child, except that the United States
Central Authority -
(1) may receive such information from a Federal or State department, agency, or instrumentality only pursuant to applicable Federal and State statutes; and
(2) may transmit any information received under this subsection notwithstanding any provision of law other than this chapter.
(b) Requests for information
Requests for information under this section shall be submitted in such manner and form as the United States Central Authority may prescribe by regulation and shall be accompanied or supported by such documents as the United States Central Authority may require.
(c) Responsibility of government entities
Whenever any department, agency, or instrumentality of the United States or of any State receives a request from the United States Central Authority for information authorized to be provided to such Central Authority under subsection (a) of this section, the head of such department, agency, or instrumentality shall promptly cause a search to be made of the files and records maintained by such department, agency, or instrumentality in order to determine whether the information requested is contained in any such files or records. If such search discloses the information requested, the head of such department, agency, or instrumentality shall immediately transmit such information to the United States Central
Authority, except that any such information the disclosure of which -
(1) would adversely affect the national security interests of the United States or the law enforcement interests of the United States or of any State; or
(2) would be prohibited by section 9 of title 13; shall not be transmitted to the Central Authority. The head of such department, agency, or instrumentality shall, immediately upon completion of the requested search, notify the Central Authority of the results of the search, and whether an exception set forth in paragraph (1) or (2) applies. In the event that the United States
Central Authority receives information and the appropriate Federal or State department, agency, or instrumentality thereafter notifies the Central Authority that an exception set forth in paragraph (1) or (2) applies to that information, the Central Authority may not disclose that information under subsection (a) of this section.
(d) Information available from Parent Locator Service
To the extent that information which the United States Central Authority is authorized to obtain under the provisions of subsection (c) of this section can be obtained through the Parent Locator Service, the United States Central Authority shall first seek to obtain such information from the Parent Locator Service, before requesting such information directly under the provisions of subsection (c) of this section.
(e) Record keeping
The United States Central Authority shall maintain appropriate records concerning its activities and the disposition of cases brought to its attention.
Sec. 11609. Interagency coordinating group
The Secretary of State, the Secretary of Health and Human Services, and the Attorney General shall designate Federal employees and may, from time to time, designate private citizens to serve on an interagency coordinating group to monitor the operation of the Convention and to provide advice on its implementation to the United States Central Authority and other Federal agencies. This group shall meet from time to time at the request of the United States Central Authority. The agency in which the United States Central Authority is located is authorized to reimburse such private citizens for travel and other expenses incurred in participating at meetings of the interagency coordinating group at rates not to exceed those authorized under subchapter I of chapter 57 of title 5 for employees of agencies.
Sec. 11610. Authorization of appropriations
There are authorized to be appropriated for each fiscal year such sums as may be necessary to carry out the purposes of the Convention and this chapter.

International Adoption & Child Abduction

 



 

 

 

 

 

 

 

 

 

 

 

 

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