by Jeremy D. Morley
www.international-divorce.com
A Colorado appeal court has remanded a case in which a trial court imposed measures intended to deter possible international child abduction to the U.A.E. because the lower court ruling was almost exclusively based on the mere fact that the U.A.E. has not adopted the Hague Convention on the Civil Aspects of International Child Abduction. In re Marriage of Badawiyeh, 2023 WL 163958 (Colo. Ct. Apps. 2023).
Colorado
is one of the small number of states that have adopted the Uniform Child Abduction
Prevention Act (“UCAPA”). UCAPA authorizes a court to order “abduction
prevention measures” if the court on its own motion “finds that the evidence
establishes a credible risk for abduction of the child” or if the party seeking
an order specifies the “risk factors for abduction”. Section 7 of UCAPA
contains a list of the potential risk factors.
In
the case at bar, the trial court allowed the father to take the parties'
children to visit the U.A.E. but subject to certain quite minor conditions in
the form of a need to post a $50,000 travel bond and a provision that a third
party should hold the children's passports until they needed for the authorized
travel. The court justified its decision to impose the conditions by citing that
the facts that the U.A.E. was not a signatory to the Hague Convention and that
a case in the U.A.E. to seek to remove
the children would likely be expensive.
The
father appealed and the appeal court ruled that UCAPA required the court to
make a specific finding based on a review of all the risk factors that the
traveling parent posed a credible risk of abducting the children before it
could impose any abduction prevention measures. It further held that the mere
fact, standing alone, that a country had not acceded to the Hague Convention was
an insufficient risk factor. It held that,
“We agree with these other
jurisdictions and decline to adopt a bright-line rule or singular test
permitting the imposition of abduction prevention measures simply because a
parent intends to travel with a child to a country that is not a signatory of
the Hague Convention.”
It
primarily cited a New Jersey case, Abouzahr v. Matera-Abouzahr, 361 N.J.
Super. 135, 824 A.2d 268, 281-82 (2003in which the court had accepted, as
genuine, the mother's fear that the father would abduct the child and flee to
Lebanon, but concluded that “fear alone is not enough to deprive a
non-custodial parent of previously agreed upon visitation.” It expressly
refused to adopt a bright-line rule prohibiting out-of-country visitation by a
parent whose country has not adopted the Hague Convention or executed an
extradition treaty with the United States, since “such an inflexible rule would
unnecessarily penalize a law-abiding parent and could conflict with a child's
best interests by depriving the child of an opportunity to experience and share
family heritage with that parent.” It also warned that to focus solely on the
conflict between the parent's native country's laws, policies, religion, or
values and our own would border on “xenophobia, a long word with a long and
sinister past.
The
Colorado decision underscores the need for parents who seek to prevent their
children from being taken overseas because of a genuine and well-founded fear
of abduction to provide the court with clear evidence of the risk factors presented
by the potential abductor and of the challenges presented by the foreign country’s
legal system. Such factors should normally be supported by expert evidence.
Likewise, it is essential to provide the court with admissible evidence
concerning the appropriate measures that are required to significantly deter
any potential abduction. For example, in my experience, conditioning travel on
filing a bond is generally pointless because children are obviously priceless.