International Parental Child Abduction between the Philippines and the United States
Despite the Philippines accession to the Hague Convention on the Civil Aspects of International Child Abduction, the United States has yet to accept it, which means that the Hague Abduction Convention is not applicable between these two countries. As a result, there is no specific treaty-based remedy through which a left behind parent in the United States can directly seek the return of a child wrongfully removed to (or retained in) the Philippines.
If a child has been taken to the Philippines, the legal avenues available in the United States under international conventions or bilateral treaties do not apply in this jurisdiction and Philippine law has precedence in all matters related to custody of such minor. Therefore, the recovery of a child is a complex legal process for a left behind parent.
In addition, U.S. custody orders issued by courts in the United States are not automatically binding in the Philippines. While a U.S. custody order may serve as evidence of the custodial arrangement in a foreign court, it is not enforceable unless the court in the foreign country voluntarily recognizes and enforces the judgment. This recognition is generally based on principles of comity: a foreign court may honor the judicial decisions of another country out of mutual respect, rather than legal obligation.
Under local law in the Philippines, parental child abduction is not considered as a criminal offense and Philippine law does not provide a specific, legal definition of parental abduction as a criminal act, which significantly impacts international abduction cases. Custody matters fall under civil law and are handled by the Philippine family courts or through directly negotiating a resolution.
Philippines ‘Law assumes that mothers are more suited for the care of very young children, and custody of children under the age of seven is generally awarded to the mother, unless she is not deemed fit to raise the child. Courts evaluate the fitness of each parent, by taking into consideration, inter alias, factors such as parental behavior, financial stability, and the child’s welfare. In cases where the child is older than seven years, custody may be determined by the child’s preferences, though this is not a strict rule.
While the Philippines does not have an enforceable treaty with the U.S. regarding custody orders, foreign judgments, including U.S. custody decrees, can still be submitted as evidence in Philippine courts. However, such decrees are not legally binding and they are not given full recognition or enforce them in the same manner as they would local custody orders. Therefore, parents attempting to enforce a U.S. custody order in the Philippines may face tremendous legal challenges.
In the case of international child abduction, the left-behind parent must retain a local attorney licensed to practice law in the Philippines to either:
(1) seek recognition of that order; or
(2) request a habeas corpus proceeding to bring the child back into the custody.
A habeas corpus is a legal action allowing the left behind parent used to determine whether a person is unlawfully detained and allows a parent to request that a child be produced before the court. Under certain circumstances, such petition can sometimes lead to the child being returned to their home country. Philippine courts may issue an interim order to take custody of the child while the legal dispute is being resolved.
Legal Assistance for U.S. Parents in Child Custody Disputes in the Philippines: Role of the U.S. Department of State and Central Authority
The U.S. Embassy also can provide resources (lists of local family law attorneys) and general information about child custody laws and cases in the Philippines. While parents facing custody issues may consult these resources, they must retain a local lawyer in any custody dispute in the Philippines.
U.S. consular officers do not directly assist in child custody disputes and have no power to enforce U.S. custody decrees in the Philippines. While Consular staff at the U.S. Embassy in Manila does not have the ability to intervene in local law enforcement or judicial rulings, if the safety of a child is a risk, they can help locate that child in the Philippines. In emergency situations, they can collaborate with Philippine authorities in emergency situations.
The U.S. Office of Children’s Issues (OCI) serves as the Central Authority for child abduction cases and offers the following assistance:
- Legal/Procedural Guidance on how to pursue legal action in the U.S. and abroad.
- International Cooperation, by contacting the Philippine authorities to assist in locating the child/facilitate his/her return.
- Passport Alert, through the CPIAP, which can notify the left-behind parent if a passport has been issued or not for the subject child, so preventing further abduction.
- Legal Support, by helping parents find local attorneys to seek enforcement of U.S. orders (U.S. custody orders don’t automatically apply in the Philippines) or file for habeas corpus in the Philippines.
- Diplomatic Requests, in emergency cases, the OCI has the ability to work with the U.S. Embassy in making diplomatic requests for the child’s return to the left behind parent.
- International Coordination, through working with other organizations (Interpol or FBI), the OCI may be able to help locate the missing child.
Legal Consequences for a U.S. Parents Abducting a Child
While parental child abduction is not a criminal offense in the Philippines, U.S. citizens involved in abducting a child, may face serious consequences, like:
- Having their U.S. passport revoked (due to federal charges related to international child kidnapping under the International Parental Kidnapping Crime Act), or
- They could be deported for lack of a valid travel document. The Philippines may act in cases of international parental kidnapping under U.S. law.
Dual Nationality: Passport Concerns
Parents should be aware of that in international custody cases, a child may hold dual nationality if one parent is a U.S. citizen, and the other is from a different country or has dual nationality. The child might become citizen also in the other parent’s country, which can create complications in the legal proceedings. and consult with the embassy of the other country regarding potential dual citizenship issues.
As a preventive measure to child abduction, the U.S. offers a Children’s Passport Issuance Alert Program (CPIAP), alerts parents if a passport is issued for their child or may blocks issuance of a Passport if there are court orders preventing it.
International Child Abduction Cases: Tips for Parents
If a U.S. child is wrongfully taken to the Philippines, the left-behind parent must act quickly and pursue legal action, including the U.S. habeas corpus procedure, which consists of filing a petition in the family court where the child was living before the abduction. The court can issue a writ to return the child, and law enforcement can assist in locating the child internationally. While matters are complicated because the lack of a treaty between the U.S. and the Philippines, the U.S. government offers resources and assistance through the OCI and consular officials. Parents would need to consult with legal experts in both in the USA and in the Philippines. Also the should use available programs like the CPIAP to protect their child’s safety and pursue legal remedies more effectively.