Indigent Foreign Parents of Abducted Children Can Qualify for Legal Services

The abduction of a child is every parent’s worst fear.  Yet all too frequently, it is a parent who is the abductor.  When one parent takes a child to a foreign country, the mother or father who is left behind faces not only a heartbreaking loss, but a daunting legal process in an unfamiliar legal system.  Without legal assistance, parents may never be able to bring their children home.  To help ensure that parents get the services they need, in December 2011 the Legal Services Corporation (LSC) issued new guidance to its grantees.  The guidance clarifies that LSC grantees have the authority to represent indigent foreign nationals in Hague Convention cases brought in United States courts for the return of, or access to, their children.

The Hague Convention on Civil Aspects of International Child Abduction is an international treaty that provides parents with a legal mechanism to return “wrongfully removed or wrongfully retained” children to their country of “habitual residence.”  Once there, the legal system of that country will resolve any custody disputes.  The Convention also seeks to promote the enjoyment of visitation when a parent and child/ren live in different treaty-partner countries.    Hague Convention cases are designed to be fast (courts may be asked to explain delays in decision-making after six weeks), and children found to be “wrongfully removed or retained” are to be returned forthwith.   However, not all cases resolve swiftly. 

Leyda Cuellar, a Panamanian woman, learned this after her estranged husband abducted their young daughter in an Australian airport.  From there he fled to the United States with Cuellar’s passport, leaving her stranded.  Cuellar filed a Hague Convention case in the United States to return her daughter to Panama, where they both had lived.

A woman of limited financial means, Cuellar fortunately found pro bono attorneys from a private firm in the United States to represent her.  Her attorneys successfully litigated her case all the way to the Ninth Circuit Court of Appeals.  Almost two years after the abduction, Cuellar was ultimately reunited with her daughter.

As Cuellar discovered, legal representation can be essential to foreign parents with abducted children in the United States.  LSC issued this new guidance to help ensure that no parents lose their children through abduction simply because they cannot afford attorneys’ fees.  The guidance reiterates that, under current federal and international law, legal services providers may represent indigent foreign parents in Hague Convention return and access cases in United States courts regardless of whether they reside abroad or in the United States.  Hague Convention cases can also be fee-generating, which allows pro bono attorneys like those who represented Leyda Cuellar to recover legal fees and expenses.

LSC developed the guidance in consultation with the Department of State and the Department of Justice’s Access to Justice Initiative (ATJ).  ATJ has actively supported efforts to ensure that foreign parents of abducted children, regardless of their income, have access to legal services in the United States for these cases.

The Department of State serves as the U.S. Central Authority for the Hague Child Abduction Convention (“USCA”).  The USCA administers the Hague Convention Attorney Network, which comprises volunteer attorneys who offer pro bono or reduced fee representation to income-eligible parents in treaty-partner countries.  Many LSC grantees participate in the Attorney Network, and others are welcome to join; however, enrolling is not a prerequisite to representing parents in Hague cases.  Information about the Attorney Network is available on the State Department’s website  and click “For Attorneys & Judges” on the left hand toolbar.

Since its launch in 2010, the Access to Justice Initiative has worked to help the justice system efficiently deliver outcomes that are fair and accessible to all, irrespective of wealth and status.  The Initiative’s staff works within the Department of Justice, across federal agencies, and with state, local and tribal justice system stakeholders to increase access to counsel and legal assistance, and to improve the justice delivery systems that serve people who are unable to afford lawyers.

If you would like to learn more about the Access to Justice Initiative, visit Justice.gov/atj.