Saturday, August 6, 2011

Legal Effect of Guatemalan Court Order?

A commenter asked my opinion of the legal effect of the Guatemalan court's order that a kidnapped child be returned by her American adoptive parents.  International law is not my specialty, but I've put the query out to some people I know who are experts, and will let you know what I find out.  In the meantime, this AP article touches on it:
If U.S. authorities intervene to return the child, now 6, as the Guatemalan court has asked, it would be a first for any international adoption case, experts say.

* * *

The U.S. State Department referred all questions about the court ruling to the Justice Department, which would not comment on the case.

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U.S. officials might simply try to ignore the order, said David Smolin, a law professor at the Cumberland School of Law in Birmingham, Alabama, and an expert in international adoption.

Chuck Johnson, president and CEO of the Virginia-based National Council For Adoption, said he has never heard of the U.S. carrying out a foreign court order to return adopted children to their home country.

But the leading advocate in the Guatemala case said the U.S. government is obligated under international treaties to return victims of human trafficking or irregular adoptions that have occurred within five years.

The girl left the country on Dec. 9, 2008, according to court records.

"We're within the margin of time," said Norma Cruz, director of the Survivors Foundation, a human rights group that filed the court case for Rodriguez. "We don't have to contact the (adoption) family. The judge's order says authorities have to find the child, wherever she is."
I do know this much -- the presence or absence of applicable treaties will make a difference here, but it's not the only thing that would make a difference.  The doctrine of international comity does obligate (somewhat) countries to accept court decrees and government acts from other countries.  That's why a U.S. court will accept a foreign decree of adoption, why I don't have to "re-adopt" my children adopted in China and why my parents, married in France, didn't have to "re-marry" in the U.S.

But international comity is not absolute;  the U.S. can refuse to honor a foreign court's judgment if the judgment is "repugnant" to the public policy of the U.S.  A treaty, if applicable, won't allow the U.S. to reject a foreign court's judgment, though.  I'm interested in the quote from the Guatemalan advocate: "the U.S. government is obligated under international treaties to return victims of human trafficking or irregular adoptions."  The U.S. doesn't consider irregular adoptions to be human trafficking, even when the illegal adoption involves kidnapping,so that's going to be a hard sell.

So this is far from over; the Guatemalan court order is only a tiny first step toward return of the child.  And that tiny step might be as far as it ever goes.  Makes the vision from the article of the biiological mother planning her daughter' bedroom really poignant. Might not need those dolls for a 6-year-old, could be rock star posters for a 13-year-old, or an elegant bedroom for an adult whose come to meet her mother for the first time. . . .


American Mamacita said...

After 5 years, what is best for the child? I hope these two families can find a compromise with or without the courts. She's going to wonder about her heritage, but she's also living with the only family she remembers having.

JennyT said...

From what I've read, many people (just posters on blogs, etc) are saying the obligation to return is part of the Hague Convention but to me (not an attorney) this makes no sense, since Guatemala is not a party to the Hague convention with the US, right? I mean, the US/Russia are signatories to Hague, so if a Russian child were kidnapped there would be the obligation to return the child, but not sure this pertains to Guatemala. Maybe you can enlighten us about this fact, because if it's not true then a lot of people are confused. I've seen people panicking (PAPs from China) that IA will end because "The US would be in violation of Hague for not returning the child." Personally, I think that a child who was truly kidnapped needs to be returned, no matter how many years have passed. But I do think that many AP's and PAPs are thinking with their emotions only and trying to think of reasons to justify the AP's keeping the child "in the best interest of the child". Oh really? What about when the child learns she was kidnapped from her country, do you think she'll have a fond view of her AP's at that point? Granted they MAY not have known she was abducted at the time of the adoption but they darn well know she was now.