by Jeremy D. Morley
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.