Prevention is the Best Medicine

First, lawyers must put in place a thorough intake process for new clients.   Many lawyers mistake some clients as having purely domestic problems because, for example, the family members are all U.S. nationals, such as military families, foreign service families, or families that work for foreign corporations or international organizations in the United States.  Any family that has a connection to another country could have an international family law problem.  Even if the connection is merely travel on vacation out of the country, there may be potential future issues with passports, consent for children to travel, or legal custody decisions to be made while situated in a foreign jurisdiction.  When a lawyer is screening a family for child abduction or retention issues, that lawyer should focus on two potential avenues of risk.  The first involves risk factors that relate to a parent, including their behaviors, statements, and immutable characteristics.  The second involves risk factors that relate directly to a country, and its laws or lack thereof.[1]

When conducting a risk assessment, you should start by interviewing your client and discussing the potential abducting parent at length.  The first two questions that any lawyer should ask first, are: (1) whether a parent has previously abducted or attempted to abduct their child, or, (2) whether a parent has threatened to abduct their child (by words or behaviors). After exploring these key questions, the lawyer should also look at whether a parent engaged in activities indicating they may be planning an abduction (or retention), even in the absence of a threat; including, quitting a job, selling a residence, terminating a lease, closing financial accounts, liquidating assets, hiding or destroying important documents, conducting unusual financial transactions, applying for visas or other travel documents for themselves or other family members, and requesting documents like the child’s birth certificate, school records or medical files.  If the potential abducting parent has also engaged in domestic violence, stalking, child abuse, neglect, or has disregarded existing custody orders, they may also be more of a risk to abduct their child.  The lawyer should inquire about the ties that each parent and the child have to this country and to other countries, including financial, family, emotional or cultural ties.  The lawyer should ask questions about each parent’s and the children’s immigration status, and their legal ability to remain in the United States. Inquiring further, the lawyer should determine whether the potential abducting parent has been denied citizenship, has forged government documents or provided misleading information to any government entity at any time in the past.  Do they use multiple names, and if so, why?  There is no one single factor that indicates abduction is a certainty, but a savvy lawyer will be able to make appropriate inquiries and assess whether the facts in a particular case indicate a parent may be a risk of abducting their child, or retaining the child outside of the United States if permitted to travel overseas with that child.

Once a lawyer has investigated the potential abducting parent, the lawyer should turn to the law and conduct research on legal paths to return a child to the United States, if the other parent abducts that child.  This assessment should begin by determining whether the Hague Child Abduction Convention is in place between the United States and the other country.  The United States ratified this treaty, which provides for the prompt return of removed or retained children, in 1988.  The treaty, however, is not law between the United States and all countries that have also become party to this treaty, and even if the treaty is in place between another country and the United States, it may not function as hoped.  Some countries have significant impediments to returning children despite the existence of this international instrument, whether it is because that country does not have the resources for its courts or government agencies to function, or because its domestic laws do not support the goals of the treaty or the enforcement of the return orders made under the treaty.  The U.S. Department of State is obligated, under the Sean and David Goldman International Child Abduction Prevention and Return Act,[2] to publish a yearly report on countries’ cooperation in returning abducted or retained children.[3]  Separate from the Hague Abduction Convention, you should note that child abduction is a federal and state crime[4] in the United States.  The International Parental Kidnapping Crime Act[5] criminalizes the removal of a child from the United States in a way that impedes a parent’s access to their child, and even criminalizes attempted abductions.   However, even if a left-behind parent can convince U.S. prosecutors to press charges and issue a warrant, there may be no extradition with the country where the taking parent now sits, or, even if there is, it may not extend to child abduction. In addition, the lawyer should research the laws in the other country or countries relating to the child’s health (for example, would the child be forced to undergo female circumcision), and wellbeing (for example, would laws prevent the left-behind parent from contacting the child).  Are the other country’s laws based on gender or religious presumptions, such as prohibiting a child from exiting a country based on the child or parent’s gender, nationality, marital status or religion?  The lawyer should do a review of the U.S. Department of State’s current list of state sponsors of terrorism, whether the United States has a diplomatic presence in the other country, and if the other country is engaged in an active military action or war (and the child would be exposed, or conscripted into service).[6]

If, after conducting a risk assessment and researching the law, the lawyer feels there is sufficient information to warrant concern that a child who exits the United States may not be returned, that lawyer should take pro-active measures to obtain a court order that would work towards preventing any abduction.  A court order is the only real mechanism, in the United States, to gain traction in the fight against parental child abduction.  A court order can be sent to the U.S. Department of State for enrollment in certain government databases.  Depending on the content of the court order, the government can take certain steps to help aid a parent in the order’s enforcement.  For example, if the order is clear on what parent may and may not apply for a new or duplicate U.S. passport for the child, the U.S. Department of State can make note so it properly assesses any future passport applications.  If there is a clear prohibition on the child’s travel outside of the United States, then the Department of Homeland Security can enroll the child in its Prevent Departure program[7], which should flag the child at a border crossing.  Regardless, the court order must be clear, concise, and easily understood with the assumption it may be read by a foreign judge or a lay person, such as law enforcement or border control.  It should avoid vague language such as “reasonable access” or “Greater New York City metropolitan area,” and should not leave discretion to the parents[8], such as “the child is prohibited from leaving the United States, until further court order or by agreement of the parents.”  The court order should make a clear statement as to the court’s authority to issue the order, citing to the UCCJEA provision in that state, reference to due process standards being met, and define the child’s habitual residence[9], so that any foreign jurisdiction has clear guidelines on which to proceed.  The order should refer to how the child’s voice was incorporated into the judge’s order.[10] The order should consider giving authority to U.S. law enforcement to take appropriate action to stop a child’s abduction or enforce the terms of the order.   On a continuum of least restrictive to most restrictive, the court could order an exchange of information between parents about the child’s future travel plans, location, and travel dates; a restriction on who holds the child’s passports and a prohibition on obtaining new passports[11]; restrictions on the child’s travel outside of the United States; cash or security bonds put into escrow to fund future litigation at the time of a child abduction; a requirement that the parents obtain a mirror order in the foreign jurisdiction before any travel is permitted; limited or supervised access between the parent and child; or no access between the parent and child.  Nothing is a replacement for consulting competent foreign legal counsel prior to presenting a proposed order to a judge, or entering into a voluntary parenting agreement.  Foreign counsel can aid you in what language may need to be incorporated for easier future enforcement or litigation in that country.

Given the low number of Hague Abduction Convention cases as compared to custody and relocation cases that are filed in the United States each year, it is more likely that a family law practitioner will encounter an abduction prevention case than a post-abduction case where an international treaty applies.  Any lawyer who works with one of these at-risk families should familiarize themselves with the U.S. Department of State resources,[12] the National Center for Missing and Exploited Children[13], and the Hague Conference on Private International Law’s child abduction resources[14] and its child abduction caselaw database.[15]  Consider consulting a lawyer who routinely works with international families as a consultant or co-counsel, or using a lawyer as an expert witness to testify about the laws, risk factors and prevention measures to present a clear and organized case to your judge.  Finally, do not overlook that it may be your client that exhibits certain risk factors common in a child abductor.  If you, after your due diligence, determine your client may be a risk of abducting their child, be sure to advise him or her appropriately and ethically, including about the criminal nature of parental child abduction.

Reprinted with permission from: Family Law Review, Winter 2020, Vol. 52, No. 1, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

Endnotes

[1] See the Uniform Law Commission’s Child Abduction Prevention Act here: https://www.uniformlaws.org/committees/community-home?communitykey=c8a53ebd-d5aa-4805-95b2-5d6f2a648b2a&tab=groupdetails, last accessed 1/24/2020

[2] Pub. L. No. 113-150

[3] https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction.html, last accessed 1/24/2020

[4] The Hague Abduction Convention is limited to the issue of return as a civil remedy and does not address abduction as a crime.

[5] IPKCA 18 U.S.C. § 1204

[6] https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction.html, last accessed 1/24/2020

[7]  https://www.cbp.gov/travel/international-child-abduction-prevention-and-return-act, last accessed 1/24/2020

[8] Courts commonly craft orders that allow the order to be modified “by agreement of the parents,” however, law enforcement will not know if any subsequent agreement actually exists.  The order must be clear on its face and this type of language serves to create sufficient confusion that a professional at a border exit may be unable to enforce it.

[9] Habitual residence is a term of art used in the Hague Abduction treaty and defined by caselaw in the United States. 

[10] The United States is the only country that has not ratified the UN Convention on the Rights of the Child, which mandates hearing a child’s voice in proceedings that impact the child.  Many countries, if not most, require a child to be heard as part of a custody proceeding.  If the child’s voice is not incorporated into the U.S. custody order, there may be potential problems with enforcing the order overseas, on this basis. 

[11] https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/prevention/passport-issuance-alert-program.html, last accessed 1/24/2020

[12] https://childabduction.state.gov/, last accessed 1/24/2020

[13] www.ncmec.org, last accessed 1/24/2020

[14] https://www.hcch.net/en/instruments/conventions/specialised-sections/child-abduction, last accessed 1/24/2020

[15] www.incadat.com, last accessed 1/24/2020