by Jeremy D. Morley*
Many children whose parents are separated are spending this summer away from home on vacation in the country of origin of one of their parents. Usually such visits are great, providing excellent and important benefits to the children and their parents.
But sometimes – and it happens all too often – as the date to return home draws near, problems arise. Children announce that they don’t want to go home and they refuse to do so. Or parents with temporary possession of a child insist that it would be best for the child to stay and not go back to live with the other parent.
Indeed, some parents encourage that process. They make sure that the kids have a fantastic summer, taking them on trips to great resorts, showering them with generous gifts and demanding neither homework nor chores. Some parents feed negative information about the other parent to their children, which might be true or often distorted or entirely false, or they encourage them to focus on the negative qualities of the other parent, or the other parent’s family, friends, community, country, religion or people. Sometimes it becomes all-out psychological warfare using all these tactics while the children are away from their usual environment and particularly susceptible to such manipulation.
Faced with such a circumstance, what can -- and what should -- a potentially left-behind parent do?
The all too obvious initial answer is that the parent should have acted before the child was permitted to leave home. There are many steps that worried parents can take, in advance, to improve the chances that a child who may be leaving on an international visit with the other parent will be returned on schedule. These may include home state court custody orders, foreign country mirror orders, well-drafted affidavits by the taking parent, financial performance bonds and legal fee escrow accounts. (And yet, especially with respect to countries that do not usually return abducted children, it is often essential to prevent the visit from taking place at all, because protective measures will likely be useless. Sometimes it is essential to seek a court order barring any such visit, and for this it is usually essential to retain experienced international family law counsel and provide qualified expert witness evidence concerning the nature of the risk).
Once a parent who has taken a child on an overseas vacation has threatened or intimated that the child will not be returned, it is usually necessary to act very quickly but very appropriately. However, self-help can be –and very often is – totally counter-productive.
Before you make threats you need to know how those threats might be interpreted, not only by the other parent, but also by that parent’s lawyers, by judges (both in your courts at home and in the courts in the foreign country), by police and by prosecutors.
Before you allege the other person’s criminality you need to understand whether threatening prosecution is itself criminal; which criminal laws might apply; what those laws actually provide; and how those laws might apply to the facts of your situation.
Before talking “International Law” you need to be advised about the key international treaty, the Hague Abduction Convention. Before threatening to employ it you need to understand whether it applies in your case, what you might need to prove to win a case, what defenses exist and what other exposure you might have.
Before you run to court you need to know the impact that a case in one country might have on the courts in the other country.
Before you threaten to grab the kids yourself and before you waste money on hiring re-abduction “special forces”, you need to understand fully the potential consequences – some extremely serious -- of doing so.
There are many steps that you can take, but every case is different. One size does not fit all. Usually your local lawyers alone will not have the necessary experience to provide you with the strategic advice and big picture review that you must have. You need to consult with an experienced family lawyer who, after understanding the critical issues by interviewing you, can then suggest the most appropriate strategy or strategies, and can lead the effort to implement them. Such counsel will often not be located in the geographical location of your child and the other parent but will bring in a local family lawyer or a local criminal lawyer in that area to participate in the strategic planning and then to handle the local court proceedings if needed.
In my experience left-behind parents who do not first secure knowledgeable advice often make mistakes, sometimes fatal to their case, that could have been avoided if they had secured the necessary advice from wise and experienced international counsel.
* Jeremy D. Morley consults on international family law matters with clients globally, always working with local counsel as appropriate. He may be reached at +1- 212-372-3425 and through his website, www.international-divorce.com.. Jeremy has handled hundreds of child abduction cases and has written the leading treatises on international family law.