Introduction
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).
Balancing test
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.
Conclusion
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.
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