Eslam and Zainab Chebbi. Photo courtesy of Edeanna Johnson-Chebbi.
A recent case of the abduction of two local children has once again shed light on the growing discussion on international parental child abduction.
On November 11th 2011, Eslam, 5 and Zainab, 3, were taken to Tunisia by their father, a Tunisian native, without the knowledge of consent of their mother. The divorced couple now finds themselves in the midst of an international custody battle.
Between 1999 and 2009, at approximately 7,000 cases of international parental child abduction were documented by Congress’ investigative Government Accountability Office. Of these cases, the majority were by immigrant parents returning to their native country.
Due to legal complexities, few abducted children ever return home. In 2010, only 578 of the approximately 1,500 children who were abducted by a parent made it back to the United States.
The Case of Eslam and Zainab Chebbi
Las November, Virginia resident Edeanna Johnson-Chebbi received a phone call from her ex-husband informing her that he had taken the couples two young children to his native Tunisia and had no intention of returning.
It was a scenario that she had long prepared for but hoped she’d never have to encounter.
On one of his routine weekends with the kids, her ex-husband, Facial Chebbi, took Eslam, 5, and Zainab, 3, to the airport, boarded a plane to Tunisia and informed them they would not be able to return to the United States until they were adults.
“I wasn’t totally freaked out. I had spent a year and a half being fearful of this so I had already overcome that fear of “what if’,” she said.
Johnson-Chebbi and her ex husband divorced in 2011 after nearly ten years.
Though she maintains full legal and physical custody, the children would routinely stay with their father between Thursday and Sunday every other week.
“We had a mutually signed and agreed to separation agreement in January of 2011 that granted sole legal and physical custody to me. That document was incorporated into our final divorce and is still relevant. Additionally, we had a court order that remains in effect that states that neither parent shall remove either child from the United States,” Johnson-Chebbi said.
Despite the agreements, Johnson-Chebbi still worried her ex-husband would make good on his threats to take the children to Tunisia. She contacted the Tunisian Embassy in Washington D.C. to ensure that he would be unable to obtain passports for the children without her knowledge.
Johnson-Chebbi said she was assured that the Tunisian Embassy would not allow her ex-husband to obtain passports without her consent.
By obtaining Tunisian birth certificates for the children, who were both born in Maryland, Facial Chebbi got passports, boarded a plane and flew them out of the country without issue.
Any child born to a Tunisian parent is awarded dual nationality meaning that regardless of the where the child is born, they are considered Tunisian, a law that would have made the process much easier.
Upon finding out what had happened, Johnson-Chebbi immediately contacted The State Department, the FBI, the state police and the National Center for Missing and Exploited Children.
She has been in contact with her children via Internet video calls, a resource she said keeps her sane through the separation.
Since her children were taken, she has organized two protests outside the Tunisian embassy. Surrounded mostly by friends and family, the first protest brought in around 40 individuals. The second, about half that number.
Along with the protests, Johnson-Chebbi, her family and friends have set up a Facebook page, sent out e-mails on listservs and even organized campaigns encouraging people to contact the Tunisian ambassador about the case.
Her continued efforts have all resulted in one conclusion: Now that the children were on foreign soil, the U.S. could no longer handle the case. Johnson-Chebbi would have to leave the fat of her family in the hands of a foreign system she admittedly knows little about.
“This [should be] an issue of International justice, not an issue of family law [to be settled] in Tunisia,” she said.
oThe U.S. legal system, as it stands, says differently.
International Parental Child Abduction and the Hague Convention
Questions remain of legality in regards to how the father was able to obtain passports for minor children without the consent of their mother.
According to the U.S. State Department, any person applying for a passport for a child under the age of 16 must prove that both parents or guardians have issued consent unless the parent applying has sole authority to obtain the passport. In Johnson-Chebbi’s case, the custody agreement established did not provide the father of the children sole authority. However, some exceptions are allowed in cases where the immediate travel of a child is deemed necessary.
While this requirement has not always been in place, it was adopted to lessen chances that a passport would be used to facilitate an “international parental child abduction.”
Foreign child custody agreements are considered by Tunisia. However, their enforcement is carried out only if the custody order conforms with Tunisian child custody laws. Because of this, foreign child custody orders are often not recognized in Tunisia thus requiring the parent to seek legal representation in Tunisia.
While the U.S. has systems in place that have issued warrants and are treating Johnson-Chebbi’s case as an abduction, they remain powerless now that the children are in Tunisia. This is because the U.S. and Tunisia do not have any agreement in place regarding international child abduction.
This can be particularly frustrating in situations like Johnson-Chebbi’s where all legal matters that were squared away in the United States and now seemingly have little to no weight.
Legally, a custody order in the United States may have no meaning as soon as a border is crossed.
Because each country is a sovereign nation, other nations cannot interfere with another’s legal system. Each country has jurisdiction over the people within its borders. While the U.S. may recognize court orders from other nations under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), this rarely works the other way around.
Because of the concern regarding international parental child abduction, a treaty was drafted in 1976 between twenty-three nations at the Hague Conference of Private International Law. This allowed nations to work together on cases dealing with parental child abduction. In July of 1988 the Hague Convention of Civil Aspects of International Child Abduction came into effect for the United States. This Convention allows for the left-behind parent to have certain rights. Countries that have agreed to the Convention and find that a child has been removed from another “Convention country” is in violation of the rights of the left-behind parent and the child must then be returned to the custodial parent. Once the child is returned, the dispute can then be settled in courts.
Currently 71 countries partner with the U.S. under the Convention.
Tunisia is not one of those countries.
Prevention
Because international parental child abduction is most often found in situations where one or both of the parents are immigrants or have ties to a nation other than the United States, the State Department encourages individuals who fit that profile to take precautionary measures if there is reason for concern. In cases of divorce, additional attention to custody details can play a vital role in keeping the child or children from being taken out of the country.
The State Department emphasizes that though a complex legal issue, international child abduction is illegal and in some cases the parent who has abducted the child can be charged with a Federal crime.
If a spouse or ex-spouse has threatened to take the couples children out of the country, family law experts recommend that a custody decree be established specifically indicating the child cannot be taken out of the United States without the permission of both parents.
The United States does not regulate exit borders so long as the individuals exiting the country have legal passports. As such, preventing a child, already in possession of a valid passport, from leaving the country is often times very difficult.
U.S. law requires that any child under the age of sixteen must have the consent of both parents to acquire a passport. If the child already holds a passport and there is concern that it may be used for abduction, the State Department suggests on its website, that the court or an attorney hold it for safe keeping. However, the Department also notes that if the child has dual nationality he or she may be able to acquire and travel using that country’s passport.
The State Department’s Children’s Passport Issuance Alert Program (CPIAP) can be used to alert parents if a U.S. passport application is submitted for a child anywhere in the country, including U.S. embassy’s or consults abroad.
Johnson-Chebbi has hired a lawyer in Tunisia to handle her case. The first hearing took place on January 10th. She is unable to discuss the details of the legal proceedings.
The case is currently pending.
Efforts to reach Facial Chebbi for comment were unsuccessful.
UPDATE: Johnson -Chebbi is currently in Tunisia for the proceedings and has since visited with her children. She wrote open letters to Secretary of State Hilary Clinton and to the President of the Republic of Tunisia regarding her situation prior to traveling to Tunisia.
Senator Cardin’s (D-MD) and Senator Mikulski’s office (D-MD) have expressed their support for Johnson-Chebbi’s case and have taken measures to look into the situation.
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Salaam - Well put. It put's everything in context. ...
Interesting concept - Definitely going to check out 1 of the sessions......