April 5, 2004
Crossing the Line; Texas Program Assists Parents in International Abduction Battles
Without the help of a first-of-its kind program in Texas, Monica Castro never might see her abducted child again.
A little more than a year ago, Pamela Brown, a Texas Rural Legal Aid [TRLA] lawyer, established the Bi-National Project on Family Violence. With an $80,000 budget and a staff of two, including herself, Brown didn't know what to expect when she started the nonprofit program, that's an arm of TRLA. But she says the past few months have taught her that impoverished residents of The Valley desperately need legal help to fight domestic battles across international borders.
Castro is just one of them.
A 19-year-old mother now living in Corpus Christi, Castro missed her daughter Rosa Maria's first birthday on Dec. 4, 2003. Instead of celebrating, she spent the day distraught. According to an affidavit she plans to file this month to apply for assistance from the U.S. Department of State under guidelines set forth by the Hague Convention on the Civil Aspects of International Child Abduction Treaty [the Hague treaty], Castro learned that the baby's father -- an illegal immigrant whom police wanted to question regarding a homicide -- allegedly took their daughter from Lubbock, where the couple previously lived, to Mexico with him on Dec. 3, 2003.
"I miss my little girl, and I want her back soon. I don't understand why they wouldn't let me take my little girl back," Castro says of her repeated, unsuccessful attempts to persuade various U.S. and Mexican authorities to help her get the child back. Then Castro turned to Brown.
If Castro had come to Brown before 2003, Brown could not have helped her. "We used to say to people, "I'm sorry but there is nothing we can do,' " recalls Brown, who works out of TRLA's Weslaco office. Brown says she believes a need for the legal services she provides has existed for decades. But, she says, "No one quantified it, and there were no services available."
But now, with the Bi-National Project going into its second year, Brown can offer hope to clients such as Castro.
Brown helped Castro prepare her application for help from the State Department, planning to file the affidavit under guidelines set forth by the Hague treaty. If the State Department accepts Castro's application, it will contact the Secretaria de Relaciones Exterior in Mexico. That office defers calls about Mexico's policy on the Hague treaty and cross-border abductions to Consultor Juridiaco Arturo DaGer. He, in turn, defers calls to his press office. The director of that office, Allan Nahum, did not return a telephone call seeking comment before presstime on April 1. However, Brown says the treaty requires that, once notified, the Mexican government must begin the process of tracking down and returning Castro's child.
When she initially started the Bi-National Project, Brown says, she thought a Hague treaty application with the State Department would be all that was necessary to get an abducted child back. Now, with a little more experience under her belt, Brown realizes she probably will have to hire local counsel in Mexico to represent Castro [and other clients] and to help coax Mexican authorities to follow through on child-abduction cases. Brown is trying to establish a network of pro bono lawyers in Mexico. However, that's easier said than done. Unlike the United States, she says, lawyers in Mexico traditionally don't do pro bono work.
Brown represents more than a dozen clients who allege they are victims of spousal abuse and, like Castro, are involved in custody disputes. "Now that people are aware that I'm here," Brown says, "the cases are coming in kind of fast and furious."
The need is great in Texas for the kind of services Brown provides, four lawyers familiar with such cases say. That's because cross-border domestic disputes can involve a complex array of venues and many Texas family-law attorneys are unfamiliar with how to handle such matters.
"A lot of people just don't know about it [the Hague treaty]," says Brian Webb, a partner in Dallas' Webb & Ackles who practices family law and has received training from the State Department about the Hague treaty.
Adair Dyer, a solo in Austin, served on a committee in the 1970s that helped draft the Hague treaty, which the U.S. ratified in 1988 and Mexico ratified three years later.
"Pam is on the front line of the practice in The Valley," Dyer says. An awareness about the problems cross-border disputes create "still hasn't sunk in" in Texas, Dyer says. "It is a process of getting judges and lawyers sensitized as to what the Hague convention can do," Dyer says.
States with Mexican borders, such as Texas and California, are the most common location of such cross-border disputes. State Department statistics show that in 2003, Mexico was the most frequent destination for child abductors, with 154 cases reported. There were 41 such cases of abductions to Germany, the next most frequent destination on the State Department's list. Germany is attractive to abductors because the authorities there haven't been particularly helpful to parents seeking the return of their children, even though the country is a signatory to the Hague treaty, Brown says.
In California, parents whose children are abducted can seek help from the authorities. In that state, unlike Texas Dyer says, local district attorneys have staff members dedicated to child abduction issues.
But the legal community in Texas lags far behind California on this issue, Dyer and Brown say. No specialized abduction units exist in the district attorneys' offices, nor is there a division in the Texas Office of the Attorney General, says Barry Brooks, an assistant AG who works on child support cases.
Renee Railey, the special projects director who handles press calls to El Paso DA James Esparza, says there is no such specialized abduction unit in that border town. "And we are one of the largest district attorney offices" in Texas, she says.
Gary Caswell, a former assistant attorney general who managed coordination of international cases, including custody issues, for the state agency until he left last year to start a solo practice in San Antonio, says he had proposed setting up a specialized unit to handle child abductions. Texas AG Greg Abbott considered his proposal but ultimately rejected it, Caswell says.
Tom Kelley, a spokesman for the AG's office, says the idea of establishing such a specialized unit was discussed, although never formally. Abbott decided against such a unit, Kelley says, because international abductions involve issues better dealt with at the federal level.
In one sign of progress in this state, however, the Texas Legislature recently addressed the issues raised in cross-border domestic disputes. In the 2003 legislative session, Rep. Joe Nixon, R-Houston, a partner in Houston's Phillips & Akers, authored and successfully helped pass a law that Brown believes will serve as a pre-emptive strike for many of her clients. H.B. 1899 amends Chapter 153 of the Texas Family Code to allow a state court to consider in a civil domestic suit "measures to prevent international parental child abduction." Teri Avery, Nixon's chief of staff, says Nixon authored the bill because of constituents' requests. The legislation went into effect on Sept. 1, 2003.
Brown welcomes the new law, which she says gives her one more tool to help clients. For example, she now is able, in a state district court suit, to ask a judge to recognize and take action if there's a threat of a cross-border child abduction. "It has been really helpful. We've used it a lot," Brown says.
For a parent like Castro, whose child already is abducted, the revised Family Code doesn't provide an immediate solution. But if and when her child is returned and she goes to Texas courts to establish legal custody, the new section of the Family Code will make it possible for Castro to ask a judge to establish measures to prevent her child from being taken again.
Frequently, Brown says, her cases require her to choose which venue -- federal court, state district court, Mexican courts, the Hague treaty process or some combination of those -- will best work for her client. Many of her clients, for instance, are not legal residents in the United States and fear filing petitions in American courts. And sometimes, "they won't call the police. They are afraid they will be deported," Brown says.
One such client is Ernestina Puentes, a 35-year-old discount-store shelf stocker living in El Paso. Puentes filed her affidavit with the State Department on Sept. 15, 2003. In it, she wrote that she separated from her husband because he was physically abusive, including choking her on occasion. Then, she wrote, in February 2003, he took her 3-year-old daughter to Mexico to live with his relatives. "He knew taking my daughter from me would hurt more than the blows he had given me," Puentes wrote in her affidavit.
Brown has helped Puentes file with U.S. Citizenship and Immigration Services what is known as a "self petition" for temporary legal status in this country. Puentes filed her petition under guidelines set forth in the federal Violence Against Women Act, which Congress amended in 1998 to allow undocumented abused spouses obtain legal status in the United States. Brown is optimistic about Puentes' chances: "She is on the verge of getting it," Brown says.
The TRLA lawyer also is optimistic about Puentes' application with the State Department under the Hague treaty guidelines seeking assistance in getting back her child.
Dyer, who helped draft the Hague treaty, says the international agreement provides parents whose children are abducted and taken across borders with "a legal alternative to kidnapping." Without the treaty, desperate parents oftentimes resorted to kidnapping to get back their children. The Hague treaty establishes that custody cases must be sorted out in the country that is the children's place of "habitual residence."
Could It Backfire?
Brown just hopes international authorities don't turn the tables on her and use the Hague treaty to come after children living in the United States after their abused mothers fled their home countries.
For some, Brown says, the Hague treaty will not offer relief but will create potential problems. It only requires the State Department to consider what the child's habitual residence is or the potential harm that could occur to a child. There is no requirement for consideration about spousal abuse. Therefore, a woman who has taken children across the border to avoid an abusive spouse cannot necessarily get relief -- or help keeping the children in America -- under the Hague treaty.
To get the signatory countries of the Hague treaty to agree to amend and incorporate such concerns into the international agreement, Brown says, "will be a glacial process." The number of countries alone that would have to agree is daunting. There are about 90 signatory countries to the treaty, all of which must agree to the amendments.
Knowing how long that will take, Brown says she intends for now to concentrate on making judges cognizant through case law -- through precedents her cases set -- and statistics about the dangerous environment created for children when a parent is abused.
In some instances, Brown says, she sees the lack of awareness about the Hague treaty, particularly among Mexican practitioners, as an advantage for her clients. In particular, she says, such ignorance is good for her clients who have fled from Mexico to the United States to avoid abusive spouses. Brown hopes that the opponents in those cases don't stumble upon the Hague treaty and use it to force the women to return the children to abusive spouses in Mexico. "Luckily, many of the spouses in Mexico don't know about the Hague treaty," Brown says.
Some of her clients, Brown says, do face powerful opposition in Mexico because their former abusive spouses have financial resources, often generated with drug sales.
In Castro's case, Brown is optimistic. Castro is a legal resident in this country. And although she and her client don't have contact now with the baby's father, Brown says they have talked with his relatives and have reason to believe the baby is safe in Juarez, Mexico.
According to an account of events that she wrote in her affidavit, however, Castro didn't have anywhere to turn until Brown agreed to help.
For now, Castro says, the biggest challenge is the wait. Brown has told her it may take as long as 18 months for the Hague treaty to help her get her daughter back.
"We've been apart for so long," Castro says about her child, knowing that she 'll miss Rosa Maria's second birthday, too.