The best way to handle international child abduction is to prevent it before it occurs, although that is often far easier said than done.
International child abduction has become increasingly prevalent as greater international mobility has spawned a concomitant increase in international personal relationships. Most abductions are committed by a family member, usually by a parent. Frequently, when international relationships end, parents want to “go home” to their country of origin and take their children with them, or they want to move to their new partners’ country of origin. In some such situations the children are removed covertly, but often the removal is couched as a mere “family visit home.”
Attorneys need to advise worried parents as to the precautions they might take short of litigation to reduce the likelihood of abduction, while making it clear that a determined abductor may evade whatever steps are taken. However, we also need to be prepared, sometimes at the last minute, to seek emergency assistance from courts and from law enforcement authorities.
Indeed, since international child abduction can be devastating, abusive and without any effective remedy, it may be necessary to ask a court to bar a parent from taking a child for a visit overseas, and to impose other substantial restrictions on the parent’s access to the child. Courts are naturally hesitant to interfere with a parent's ability to travel with a child, particularly when it is to the parent's country of origin. They are also often unwilling to undertake the detailed and careful examination and evaluation of the nature and extent of the specific risks of abduction that are required in such cases.
Cases in which courts are asked to enjoin or limit international visitation typically require a judge to consider the extent to which a foreign legal system is likely to provide an abducted child with the necessary protection and to effectively and promptly order the child's return to the child's habitual residence. Judges are generally most reluctant to evaluate other countries' legal systems and yet such evaluations are often essential to a fair determination of the issue. A critical element of an attorney's role in such a case is to effectively secure the attention of a court to the existence of real danger, and to provide the court with admissible evidence describing the nature of the risk.
No significant exit controls
The United States has no exit controls. Other countries, such as most South American countries, do not allow a child to exit the country when accompanied by only one parent without producing evidence of the other parent's consent or a court order authorizing the exit. These rules are significantly effective. Unfortunately, there are no such requirements in the United States. A child may leave the U.S. without anyone checking the child's papers and with no check on the connection between the child and whoever is accompanying the child, except that the airlines will make sure that the child has the papers that are required to enter the foreign country.
The Office of Children’s Issues of the U.S. State Department may, in certain situations, request the Department of Homeland Security to track the purchase of transportation tickets for a specified child or the check-in of a specific child at an airport or other public carrier facility. This might then trigger an inquiry by a United States Border Patrol agent. However, such oversight is generally triggered only if a court order enjoining a parent from removing a child is in place and sent to the State Department. Moreover, crossing land borders by car may not be affected by any such measures.
Practical non-judicial steps to prevent international abduction
When a parent believes that the other parent is about to take their child out of the country without consent, there are many practical steps that a parent may take and that counsel might recommend short of litigation. They include:
• Take and hide the child's passports. But many foreign consulates will issue a new passport or other travel authorization to nationals of their own country if the national claims that the passport has been lost or stolen, especially if the parent claims that there is some kind of family emergency. The law in many countries bars the issuance of a passport to a child without the written consent of both parents, but these laws may be evaded by such means as forging the other parent's name, by corruption or by persuading consular officials to ignore the law.
• Take the other parent's passport if appropriate. Beware--this may be unlawful since it is the property of the other parent.
• Contact the embassies and consulates of the other parent's nationality to ask them to refrain from issuing a new passport for the child or at least to contact the parent before doing so. But foreign countries have no obligation to comply with such requests and they vary dramatically in their responses.
• Enter the child's name in the U.S. Children's Passport Issuance Alert Program. But this is not meaningful if the other parent can obtain another country's passport for the child.
• Contact international airlines and ask them to inform you if reservations are made or tickets are issued in the child's name.
• Inform school authorities, daycare owners and supervisors, and medical personnel, in writing, that they must not release the child or any records of the child to the noncustodial parent.
• Discuss with counsel the advisability of informing relatives and others who might support a parent in hiding a child of their potential criminal liability if they aid and abet a felony, and their potential civil liability if they assist in an abduction. Such threats should not be issued lightly or made recklessly.
• Teach older children how to protect themselves against a parental abduction and how to find help if they are taken. A simple example is to teach children that if they are ever at an airport without having said goodbye to the instructing parent they must call home as soon as they get to the airport or they must tell a policeman or an airline worker that they need to speak to their mommy or daddy.
• Use tracking devices to keep track of a child. There are now a host of tracking devices on the market including devices incorporated in a cell-phone; devices that are attached to a child's shoelaces, and devices that are part of a child's watch. Some transmit a signal to a base unit if the child goes outside of a user-defined range. Others allow the parent to follow the exact location of a child through GPS technology.
Representing a parent who seeks to enjoin foreign visitation
A parent who fears that the other parent or another party might abduct a child should consider bringing a proceeding to bar the other party from taking the child out of the country. If there is or has been a threatened abduction, counsel should demand that any visitation be supervised.
It is well established that a court may bar international visits, even if there has been no prior actual harmful conduct toward the child, if it is established that there is a danger of injury to the child. In one case, the Supreme Court of Washington held en banc that, “Because the trial court found a danger of serious damage (abduction) here, restrictions were appropriate even though [the father] had not yet attempted abduction.” Katare v. Katare, 175 Wash. 2d 23, 283 P.3d 546 (2012).
The courts in such cases must weigh the magnitude of the risk of abduction presented by the facts concerning the specific parent against the likelihood that the specific country will cause the child to be located and returned safely and expeditiously. The more likely it is that the country to which the child might be taken is a fully compliant Hague Abduction Convention treaty partner with an effective legal system and a history of prompt returns of abducted children, the higher the burden of proof that a parent seeking to prevent an abduction must satisfy as to the extent of the risk that the other parent is likely to be an international child abductor.
Conversely, if the foreign country is not a Hague treaty partner, or is not compliant with the Convention, and has little or no history of returning abducted children to the United States, then far less evidence of the parent being a likely international child abductor is necessary in order to justify – and require – a court to take effective steps to prevent a potential child abduction.
Evidence concerning the foreign country
It is impossible to evaluate the true risks that arise from authorizing international child visitation, or from failing to effectively prevent international child abduction, without considering the laws and procedures of the foreign country that will apply once the child is physically in the foreign country, and without evaluating the effectiveness of the foreign legal system in remedying the potential wrongful retention of the child in that country.
Counsel for a client seeking to enjoin a child's foreign travel should present evidence that may establish that the legal system in the foreign country to which the child may be taken is unlikely to cause the child’s return. For example, it is essential to provide any evidence that the foreign legal system does not respect U.S. custody orders, does not return abducted children, is not a Hague Abduction Convention treaty partner, is non-compliant with the Convention, is biased against the nationality, religion, or gender of the client, does not allow or encourage access to children by a non-custodial parent, or is dysfunctional. Such facts must normally be presented by means of expert evidence, offered through an international family lawyer with particular experience in matters concerning the country in question or through lawyers practicing in that country.
In many cases, it may well be difficult to locate a lawyer who is currently practicing in the country in question, and who is prepared to testify truthfully and with strong conviction about the inadequacy of the legal system in the country in which he or she practices. It is often best to have a lawyer who is independent of the foreign legal system but who has substantial knowledge of and experience with that system, at least as to its practices in handling cases in which a foreign parent seeks the return of an allegedly abducted child. This author – who has unusual international experience and knowledge – has provided expert evidence to courts throughout the country and overseas concerning the international child custody aspects of travel to dozens of countries, including India, Japan, China, Kuwait, Brazil, France, Italy, the Philippines, Lebanon, Egypt and a host of other countries.
Even if the foreign country is a compliant enforcer of its obligations under the Hague Convention, one must also consider whether a defense to a potential Hague case could be successfully asserted in the foreign country. For example, Article 13 of the Convention provides that an abducted child need not be returned if the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. This means that if the child is, say, 12 years old, there is a risk that the child may successfully oppose a return home if, for example, the taking parent creates conditions in the new country that cause the child to be infatuated by the new environment or fearful of going back to the former environment.
Likewise, courts should be alerted to the fact that countries vary dramatically in their interpretation of the “grave risk” exception to the Hague Convention. It is interpreted narrowly in the United States, but it has been given a far broader interpretation in other countries. What if a parent's claims of abuse would clearly not suffice to require a modification of a custody ruling so as to restrict that parent's rights to the child but similar claims would likely suffice to trigger the grave risk exception in a foreign country?
Counsel should also determine whether or not the foreign country has an extradition treaty with the United States and whether that treaty would require extradition in the event of international parental child abduction. If there is no such extradition treaty (as is the case with most countries) cite that factor as of extreme significance in rendering useless the state and federal laws that criminalize international parental child kidnapping.
Likewise, counsel should collect and present any evidence as to the dangers of travel to or within the specific country in question.
Evidence concerning the particular parent
A substantial body of knowledge has developed, much of it under the auspices of the United States Justice Department, as to those factors that tend to indicate that a specific parent presents a significant risk of abducting a specific child. The risk factors, or warning signs, have been expressly relied on by numerous courts in many cases. They are set forth in the publication on the U.S. State Department website entitled, A Family Resource Guide on International Parental Kidnapping and formed the basis of Section 7 of the Uniform Child Abduction Prevention Act. That section contains an authoritative list of certain factors that may indicate a heightened risk of abduction. Lawyers representing clients who wish to enjoin international travel should work with their clients to obtain and present to the court all appropriate evidence of such risk factors.
Terms of court order permitting foreign visit
If a parent or a court permits a parent to take a child to a foreign country for a visit, the terms of such authorization must be carefully drafted by counsel experienced in international child abduction cases. The potential terms of an order might, when appropriate:
• State the basis of the court's jurisdiction over the child clearly.
• State the custodial rights of the potentially left-behind parent very clearly.
• State that the child is “habitually resident” in the place from which the child is being taken.
• State (if appropriate) that that no abuse has occurred to the child in the United States, that the child is safe and secure in the home location, and that any failure to return the child to that home would be abusive to the child.
• Require the taking parent to sign an affidavit containing express promises to return the child and other helpful statements.
• Identify the consequences that will occur if the child is not returned.
• Authorize the custodial parent to accompany the child on the foreign visit and to have access to the child during the visit.
• Require the taking parent to obtain a so-called “mirror order” rom an appropriate court in the foreign jurisdiction before the visit may occur.
• Require the traveling parent to post a bond (or give some other security or guarantee) to ensure compliance. (However, there is no point to having a requirement that a bond be filed if it is not of a sufficient amount that will really deter the parent from kidnapping the child).
• Require the taking parent to provide a detailed travel itinerary with dates, names and addresses of all hotels and allowing the left-behind parent to speak by telephone with the child on designated dates.
• Require that the child be provided with a cell phone that works in the country in question and that the taking parent must ensure that the child has the phone at all times.
• Provide that if the child is not timely returned the taking parent must pay all of the legal fees and travel and other expenses incurred by the left-behind parent in securing the child's return.
Terms of court order restraining removal
Provisions in a court order restraining a parent from removing a child from the country might include:
• A provision ordering the noncustodial parent not to remove the child from the state and/or country without prior consent of the court or written consent of the custodial parent.
• A provision clearly specifying the civil penalties for violation of the order, stating that violation may also subject the parent to criminal penalties and directing law enforcement authorities to enforce the terms of the order.
• A restriction on visitation. In appropriate cases, such as where the parent has made a clear threat to abduct the child, visitation should be supervised. The American Bar Association led a survey of 97 left-behind parents that found that nearly half of the abductions reported by the left-behind parents occurred during a legal visitation between the abducting parent and abducted child. Unsupervised visitation should be strictly defined in terms of time and place.
• A requirement that the noncustodial parent must surrender all passports in his or her possession belonging to both the parent and the child to a person designated by the court before visiting the child.
• A provision prohibiting the noncustodial parent from applying for a new or replacement passport for the child without prior written consent of the custodial parent or the court.
• A direction that school authorities, daycare owners and supervisors, and medical personnel (for example) should comply with the terms of the order and should not release the child or any records of the child to the noncustodial parent.
• A direction to airlines not to allow the child to board an aircraft.
However, even stringent terms designed to prevent an abduction might not suffice to prevent a determined abductor.
It is the public policy of the United States that international child abduction is abusive and should be prevented. The U.S. Supreme Court has declared that the purpose of the Hague Abduction Convention is “ to prevent harms resulting from abductions,” which “ can have devastating consequences for a child” and may be “ one of the worst forms of child abuse.” Abbott v. Abbott, 130 S. Ct. 1983, 1996 (2010). Accordingly, it is our responsibility as counsel in such cases to act decisively and effectively to prevent such abuse.
Jeremy D. Morley is the author of International Family Law Practice and of The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers. A New York lawyer, he consults with clients and lawyers throughout the U.S. and globally on international family law matters, always working with local counsel as appropriate. He frequently acts as an expert witness on international child custody issues in cases in the United States, Canada and Australia.