The Indian Child Welfare Act (ICWA)1  gives tribes a substantial role in matters concerning custody of Indian children. State courts must defer to tribal jurisdiction in child custody proceedings involving an Indian child for matters such as foster placement, termination of parental rights, and adoption. While the ICWA is not triggered for custody and divorce proceedings, it is nevertheless wise to be cautious if a matter is pending in tribal court of the child is an “Indian Child” as defined by the Act.

• 125 U.S.C. §§ 1901–1963.

The International Parental Kidnapping Act (IPKA) makes it a crime to remove a child from the United States or retain a child under the age of 16 years (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights.1  Under the laws of the United States and many foreign countries, if there is no custody decree prior to abduction, both parents may be considered to have equal legal custody of their child. Even though both parents may have custody of a child, it still may be a crime for one parent to remove the child from the United States against the other parent’s wishes. It may be necessary to include express language in the custody degree that prohibits a child from traveling abroad without permission of the other parent or that of the court.2

• 118 U.S.C. § 1204, et seq.
• 2For more information, see Bureau of Consular Affairs, U.S. Dep’t of State, Prevention Tips,Travel.State.Gov.

The Uniform International Child Abduction Prevention Act provides for measures and orders for the prevention of child abduction.1

• 1La. R.S. 13:1851, et seq.; see Mohsen v. Mohsen, 2008-1703 (La. App. 1 Cir. 12/23/08), 5 So. 3d 218.

The Hague Convention is a civil procedure for parents seeking the return of or access to their children. As a civil law mechanism, the parents, not the governments, are parties to the legal action. The countries that are parties to the Convention have agreed that a child who is habitually resident in one party country and who has been removed to or retained in another party country in violation of the left-behind parent’s custodial rights shall be promptly returned to the country of habitual residence. The Convention can also help parents exercise visitation rights abroad.

There is a treaty obligation to return an abducted child below the age of 16 if application is made within 1 year from the date of the wrongful removal or retention, unless one of the exceptions to return apply. If the application for return is made after 1 year, the court may use its discretion to decide that the child has become resettled in the new country and refuse to order return of the child. In any case, a court may refuse to order a child returned in several circumstances:

• There is a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in his or her country of habitual residence.
• If the child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child’s views. The treaty does not establish at what age children reach this level of maturity; that age and the degree of weight given to children’s views varies from country to country.
• If the return would violate the fundamental principles of human rights and freedoms of the country where the child is being held.

Legal services attorneys may handle Hague Convention cases for a financially eligible person even if that person is not a U.S. citizen or lawful alien. Attorney fees may be recoverable under Article 26 of the Convention1  or the UCCJEA. The United States Central Authority for the Hague Convention will support any attorney handling a convention case with technical assistance and attorney mentoring.

• 122 U.S.C. § 9007.

The Uniform Enforcement of Domestic Violence Protective Orders Act seeks to make interstate enforcement of protective orders more uniform. While many states have enacted it, Louisiana has not.