Argentina Family Law
ARGENTINA, CHILD ABDUCTION, AND THE HAGUE
From information supplied by Graciela I. Rodriguez-Ferrand
The Hague Convention on the Civil Aspects of International Child Abduction was ratified by Argentina effective June 1, 1991. The Central Authority for the Convention in Argentina is the Dirección General de Asuntos Jurídicos-Dirección de Asistencia Judicial Internacional of the Ministry of Foreign Affairs, International Commerce and Worship.
A. Return Requested from Abroad
The Central Authority addresses only the administrative and informational functions. The judiciary always decides on the return of a child or the visitation schedule. Once an application for return has been received, the Central Authority verifies that the petition complies with all the requirements provided for under the Convention. Before seeking a child’s return or voluntary visitation from the parent in whose residence the child is located, the Central Authority must obtain the prior approval of the requesting parent. If the childs return or voluntary visitation schedule does not take place at this first stage, the petition will have to be submitted by a private attorney to the competent court. The Central Authority will provide the appropriate court with a general background of the Convention and will also offer its assistance to the court during the proceedings. The Central Authority’s role is administrative and informative, whereas the judiciary decides on the feasibility of the application for return or access rights.
However, the Central Authority does not provide legal assistance to private individuals during the proceedings before Argentine courts. A private lawyer will have to be hired to carry out the judicial aspect of the request. Those who cannot afford a private lawyer, and who qualify, may obtain the assistance of a public funded attorney. Similarly, once the judicial stage has been instituted, the Central Authority will be at the Court and the parties’ disposal to provide any information necessary for the implementation or application of the Convention with regard for the best interest of the child. When the minor’s domicile has not been located, the Argentine Central Authority will inform Interpol, the agency which will be in charge of locating the minor in question.
B. Domestic Laws Regarding Child Abduction and Parental Visitation
Under the Criminal Code, the punishment for anyone who takes and hides a minor 10 years of age or younger from the control of his parents, guardian, or person in charge of him is imprisonment from 5 to 15 years. Scholarly opinion is not clear on whether a parent who takes a child from the other parent is guilty of this crime. However, a number of court decisions have suggested that any parent who takes and keeps a child out of the control of the parent who has been judicially assigned the custody of the child is guilty of this crime.
Law 24270 created the crime of Impedimento de Contacto de Hijos Menores con sus Padres no Convivientes (preventing minors from having contact with the non-custodial parent). Therefore, the parent or a third person who illegally prevents or obstructs contact between a minor and his non-custodial parent will be punished with imprisonment from 1 month to 1 year. If the child is younger than 10 years of age or handicapped, the punishment is imprisonment from 6 months to 3 years.
The same sanctions would apply to the parent or third person who, in order to prevent the parent not living with the child from contacting him, takes the child to another domicile without judicial authorization. If, with the same purpose, such a person takes the child out of the country, the punishment would increase up to double the minimum and half of the maximum.
In such cases, the court must take all necessary measures to restore the parent’s contact with the child within 10 days. The court must also establish a provisional visitation schedule to be applied for not more than 3 months, or if there is already a visitation schedule, the court must enforce it. Although articles 5 and 21 of the Convention guarantee some type of visitation schedule during the return proceeding, the courts have interpreted these provisions narrowly considering that the Convention does not expressly require member countries to establish or enforce a visitation schedule.
The Argentine Civil Code22 establishes that in some cases, express consent of both parents will be required in order for the minor to carry out certain actions. This provision refers to parents legally married and living together with the child, as well as parents that are separated or divorced, especially when one of the parents has physical custody of the minor, and the other has only visitation rights.
Authorization to leave the country is included among the actions for which express consent is required by both parents. This means that either the father or the mother may grant or deny this authorization, or grant it for a limited period of time, and therefore express his agreement or disagreement regarding a possible change of residence of the minor.
When a parent wishes to relocate with the child in a foreign country, he will need to acquire the court’s authorization when a legal custody arrangement has been settled. This is also the case when a parent has only physical custody of the minor, since according to article 264 of the Argentine Civil Code, consent of both parents is required in order to leave the country.
C. Court System and Structure of Courts Handling Child Abduction
When Argentina is the requested country and there is no voluntary return of the child, the competent court for return proceedings under the Convention will be either the civil ordinary courts in the Federal Capital and national territories or the provincial courts, which may be family courts in those provinces that have such, or the civil courts. The case may be appealed to the respective Court of Appeals and, if admissible, to the Supreme Court.
D. Law Enforcement System
Both the Central Authority and the courts have requested assistance from the police and Interpol to locate children and secure the enforcement of authorities orders. In Argentina children are sought by Interpol, not only in the cases derived from International Conventions, but also in those originated in countries where no conventions exist.
Both parents are required under the law to authorize, not only the minors travel abroad, but also the issuance of a passport to a minor. The withdrawal of such a passport, as well as the denial or restrictions on the issuance of visas, may only be ordered by a court. Therefore, in order for a minor, who is not traveling with both parents, to leave the country, he will have to present his valid passport, as well as the absent parents authorization to travel, before the border authorities. Administrative measures and court orders may become ineffective if border controls in the country are not duly carried out. This is the case for dry/land boundaries due to the length of the Argentine borders. However, border controls are highly effective with regard to air carriers and ferries. When a court orders a prohibition to leave the country, such an order is given to border authorities, including Federal Police, Immigration, Interpol-Argentina, and Aeronautic Police.