I don’t like Patricia Hoff. She sacrificed Gabe’s child hood. Ours was the first big case against prosecutors getting involved in civil family law cases. She was the main proponent for prosecutors and cops sticking their noses up our family rights.
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Click here Another article: Patricia Hoff PDF
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This article was prepared for the project “Obstacles to the Recovery and Return of Parentally Abducted Children: Training, Technical Assistance, and Project Resources.” The Project is supported by grant number 93-MC-CX-0002 from the Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U.S. Department of Justice to the American Bar Association Fund for Justice and Education. The Project is directed by Linda K. Girdner, Ph.D., project director, and Patricia M. Hoff, Esq., legal director, at the American Bar Association Center on Children and the Law. Section III.C.2. Risk Profiles for Abduction is based on the research study APrevention of Parent or Family Abduction through Early Identification of Risk Factors@ by Dr. Janet Johnston, Judith Wallerstein Center for the Family in Transition, and Dr. Linda Girdner, ABA Center on Children and the Law, under grant number 92-MC-CX-0007 from the Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U.S. Department of Justice to the American Bar Association Fund for Justice and Education.
Points of view or opinions expressed in this article are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice. The information contained in the article has not been presented to the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association.
This does not constitute and does not replace legal advice from a licensed attorney. Neither should attorneys rely solely on the information provided here, particularly due to the differences among state laws and changes in statutory and case law.
The term “parental kidnapping” encompasses the taking, retention or concealment of a child by a parent, other family member, or their agent, in derogation of the custody rights, including visitation rights, of another parent or family member.
An estimated 354,100 children were abducted by parents or family members in the United States in 1988. Nearly half of these abducted children were taken across state lines and concealed, or their abductors prevented contact with the other parent and/or intended to keep the children indefinitely or to have custody changed. See “National Incidence Studies, Missing, Abducted, Runaway, and Thrownaway Children in America,” Washington, D.C.: U.S. Department of Justice, May 1990.
Abducted children suffer emotionally and sometimes physically at the hands of abductor-parents. Many children are told the other parent is dead or no longer loves them. Uprooted from family and friends, abducted children often are given new names by their abductor-parents and instructed not to reveal their real names or where they lived before. Because of the harmful effects on children, parental kidnapping has been characterized as a form of child abuse.
Before 1968, parents who abducted their children in the course of an acrimonious separation or divorce stood an excellent chance of being rewarded with custody. Any court before which the abductor-parent appeared had the legal authority to issue a custody order based solely upon the abductor’s physical presence in the state with the child.
The inherent unfairness to the left-behind parent and the psychological harm to the child in being shifted from home to home, and the inefficiency and judicial expense wrought by repetitious litigation over child custody in sister states, ultimately led to the promulgation and eventual adoption by all 50 states and the District of Columbia of the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJA governs when a court has jurisdiction to make a custody determination, limits the right of state courts to modify sister state custody orders, and requires recognition and enforcement of custody orders. The UCCJA is summarized at pages 6-9, infra.
The National Conference of Commissioners on Uniform State Laws (NCCUSL) unanimously approved a revised version of the UCCJA in July 1997. The Uniform
Child Custody Jurisdiction and Enforcement Act@ (UCCJEA) amends the UCCJA to bring it into conformity with two federal statues, the Parental Kidnapping Prevention Act (discussed below), and the Violence Against Women Act (VAWA). The UCCJEA also clarifies numerous sections of the UCCJA that have been the subject of conflicting case law over the years. The major innovation of the UCCJEA is its streamlined process, modeled on habeas corpus, for swift interstate enforcement of child custody and visitation orders. The proposed enforcement mechanism authorizes prosecutors to assist in the location and return of abducted children, and in the civil enforcement of custody and visitation orders.
Every state now has criminal penalties for parental kidnapping (also referred to as “custodial interference”), and nearly all states have established missing children=s clearinghouses to assist in the location, recovery and return of missing and parentally abducted children. Information on state missing children=s clearinghouses may be
obtained by contacting the National Center for Missing and Exploited Children, 1-800-843-5678.
At the federal level, Congress tackled the persistent problem of interstate custody jurisdiction conflicts in 1980 when it enacted the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. 1738A; 42 U.S.C. 653-655; 663; 18 U.S.C. 1073 note. The PKPA requires state courts to enforce and not modify custody and visitation orders made in conformity with enumerated jurisdictional criteria; allows “authorized persons” to request the Federal Parent Locator Service to locate abductor parents and abducted children; and clarifies that the federal Fugitive Felon Act, 18 U.S.C. 1073, applies to state felony parental kidnapping cases. This latter provision allows for the issuance of an Unlawful Flight to Avoid Prosecution (“UFAP”) warrant upon the request of a state prosecutor when an abductor-parent has been charged with a state felony offense and FBI assistance is needed to locate the absconding parent. If the FBI locates the abductor-parent, the federal charges are dropped and extradition and prosecution under state law proceeds.
In 1988, the Hague Convention on the Civil Aspects of International Child Abduction came into force in the United States upon enactment of federal implementing legislation, the International Child Abduction Remedies Act, 42 U.S.C. 11601-11610. The Convention calls for the prompt return of wrongfully removed or retained children to their countries of habitual residence. Once returned, substantive decisions about custody and visitation can then be made. The complete text of the Convention, along with the State Department=s legal analysis of the treaty, can be found in the Federal Register, 51 Fed. Reg. 10494 et seq. (1986).
As of November 1997, 48 countries are party to the Hague Convention: Argentina, Australia (only for the Australian States and mainland Territories), Austria, Bahamas, Belize, Bosnia and Herzegovina, Burkina Faso, Canada, Chile, Colombia, Croatia, Cyprus, Denmark (except the Faroe Islands and Greenland), Ecuador, Finland, France (for the whole of the territory of the French Republic), Germany, *Georgia, Greece, Honduras, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Luxembourg, former Yugoslav Republic of Macedonia, Mauritius, Mexico, Monaco, Netherlands, New Zealand, Norway, Panama, Poland, Portugal, Romania, Saint Kitts and Nevis, Slovenia, South Africa, Spain, Sweden, Switzerland, United Kingdom of Great Britain and Northern Ireland (extension to the Isle of Man), United States, Venezuela, Zimbabwe. Other countries may become Contracting States in the future. (* The United States was still reviewing Georgia’s accession to the Convention as of the date of publication.)
To check on the status of a country’s ratification of, or accession to, the Convention, contact the U.S. Central Authority at (202) 647-2688.
Extensive case law interpreting the Hague Child Abduction Convention and other materials on interstate and international child custody disputes can be found on William Hiltons web site: http://www.hiltonhouse.com
c. Alien Exclusion Act
Pursuant to a 1990 amendment to the Immigration and Nationality Act, any alien who, in violation of a custody order issued by a court in the United States, takes or retains a child out of the U.S. may be excluded from the United States. 8 U.S.C. (a)(9)(C)(I). The exclusion applies only to aliens, not to U.S. citizens, and does not apply if the child is taken to or kept in a country that has ratified the Hague Child Abduction Convention. The exclusion ceases to apply when the child is surrendered. In addition to parents who abduct their children, the exclusion also can be applied to relatives or friends who assist in keeping the child abroad. This section may give the parent in the U.S. some leverage in negotiating the child’s return from an alien parent abroad who needs to reenter the United States for business or personal reasons.
On December 2, 1993, the International Parental Kidnapping Crime Act of 1993 (IPKCA) was enacted into law (Public Law 103-173, 107 Stat. 1998). This statute, codified at 18 U.S.C. 1204, makes it a federal felony, punishable by fine and/or imprisonment of up to three years, to wrongfully remove a child from the United States, or retain outside of the United States a child who has been in the United States, with the intent to obstruct the lawful exercise of “parental rights.” “Parental rights” are defined as the right to physical custody of the child, whether the right is joint or sole (and includes visitation rights), and whether the right arises by operation of law, court order, or legally binding agreement of the parties.
Affirmative defenses are provided where a defendant: (1) was acting within the provisions of a valid custody or visitation order; (2) was fleeing an incidence or pattern of domestic violence; or (3) failed to return the child due to circumstances beyond his/her control, notified or made reasonable attempts to notify the other parent within 24 hours, and returned the child as soon as possible. “Sense of the Congress” language in the statute prefers application of
the Hague Child Abduction Convention as the remedy of first choice where it is in effect.
When IPKCA came into force, the U.S. Department of Justice, General Litigation and Legal Advice Section, required prior approval from the Criminal Division of the Justice Department before initiation of a prosecutive action to enforce IPKCA. This policy is no longer in effect. It remains policy, however, that the Hague Child Abduction Convention, where applicable, should be the option of first choice for a parent who seeks return of an abducted child from an extraterritorial location.
Prosecutors seeking assistance from the FBI through the UFAP or IPKCA process, or the parent seeking return of the abducted child, should be made aware of civil remedies and assistance available from the Department of State. Even in situations where a child is taken to a non-Hague country, the State Department may be able to do a Welfare and Whereabouts check.
Congress also enacted several laws relating to missing children which apply to parentally abducted children as well, i.e., the Missing Children Act (28 U.S.C. 534)(1982) (authorizes the entry of descriptions of missing children into the National Crime Information Center computer (NCIC) and directs the FBI to make these entries if local law enforcement fails to do so); the Missing Children’s Search Assistance Act (42 U.S. 5771)(1984)(pursuant to which the Office of Juvenile Justice and Delinquency Prevention established, inter alia, the National Center for Missing and Exploited Children); and the National Child Search Assistance Act (42 U.S.C. 5779)(1990) (prohibits all law enforcement agencies in the country from establishing waiting periods before accepting a missing child report without regard to the child’s custodial status, and requires immediate entry of each report into the state law enforcement system and the NCIC).
Parents of abducted children cannot reap the benefit of federal and state laws passed expressly to help them locate and recover their children unless lawyers and judges are conversant with the law and do their part in interpreting and applying the law consistent with intent, i.e., to deter and remedy parental kidnapping.
The lack of knowledge on the part of lawyers, judges, and law enforcement officers about the legal remedies available in parental kidnapping cases, and the need for continuing legal and judicial education, were documented in the 1992 Final Report of the OJJDP-funded research study, “Obstacles to the Recovery and Return of Parental Abducted Children” (OJJDP Grant 90-MC-CX-K001). Copies of the report are available from the Juvenile Justice Clearinghouse at 1-800-638-8736.
The key to recovering an abducted child is a valid custody determination that is entitled to enforcement nationwide pursuant to the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. 1738A(a)(1980). If a custody determination is made by a state court consistent with the PKPA’s provisions, the resulting custody order is entitled to full faith and credit in all states and cannot be modified except as provided for in the federal law. 28 U.S.C. 1738A(d).
The PKPA’s jurisdictional criteria are not identical to those set forth in the Uniform Child Custody Jurisdiction Act (UCCJA), and the differences are significant. When there is a conflict, comply with the PKPA, as federal law preempts state law under the Supremacy Clause, U.S. Const., Art.6, Sec.2. See, e.g., In re Custody of Thorensen, 730 P.2d 1380 (Wash. Ct. App. 1987); Archambault v. Archambault, 555 N.E.2d 201, 208 (Mass. 1990).
The PKPA requires interstate enforcement of custody determinations made by courts which exercised jurisdiction in conformity with the act. In summary, the PKPA includes a preference for “home state” jurisdiction over “significant connection” jurisdiction (28 U.S.C. 1738A(a),(c)(2)(A), (c)(2)(B)); prohibits the exercise of concurrent jurisdiction when a court is exercising jurisdiction consistently with the federal provisions (28 U.S.C. 1738A(g)); and protects the exclusive continuing modification jurisdiction of the original decree state provided (1) the initial custody order was made consistently with the PKPA’s jurisdictional hierarchy, (2) the original decree state continues to have a basis for exercising custody jurisdiction under state law (which need no longer be “home state”), and (3) the state remains the residence of the child or of any custody contestant (28 U.S.C. 1738A(a); (d)).
In order for a custody order to be entitled to full faith and credit in sister states pursuant to the federal PKPA, state courts making and modifying custody orders must adhere to its terms. The promise of interstate enforceability of custody decrees is an inducement to state courts to exercise jurisdiction in accordance with the PKPA.
Since enactment of the PKPA, it is no longer enough to comply with the UCCJA, discussed below. The PKPA provisions favoring “home state” jurisdiction, preserving exclusive continuing modification jurisdiction in the original decree state when specified conditions are met, and prohibiting the exercise of simultaneous jurisdiction, must be reviewed and applied.
1. Jurisdictional grounds: Is there a basis for jurisdiction under state law?
To determine if the state court has jurisdiction under state law to make or modify a custody order, refer to the state’s codification of the UCCJA, which identifies the jurisdictional grounds recognized in the state for initial and modification orders. These typically fall into four categories: “home state”; “significant connection/substantial evidence;” “emergency;” and “last resort.” The terms are defined in UCCJA sec. 2 and in PKPA, 28 U.S.C. 1738A(b).
A crucial distinction is found in the way the two statutes treat “home state” jurisdiction. Under the UCCJA, a state has jurisdiction to make an initial custody determination if it qualifies as either the “home state” or a “significant connection” state. This often results in two states claiming jurisdiction over custody cases involving the same child(ren). Although the UCCJA prohibits simultaneous proceedings and mandates interstate judicial cooperation and communication for the purpose of resolving jurisdictional conflicts before competing custody orders are made by courts in two or more states, in actual practice those provisions have not succeeded in preventing sister state courts from issuing conflicting custody orders.
The PKPA is designed to eliminate the possibility of two states exercising custody jurisdiction at one time, one on “home state” grounds, the other on “significant connection” grounds. It does this by codifying a preference for “home state” jurisdiction. 18 U.S.C. 1738A(c)(2)(A) and (B). A decree made by a “home state” is to be accorded full faith and credit by sister states, whereas a “significant connection” state’s decree does not have that protection if a “home state” would have jurisdiction.
Under the PKPA, once a “home state” court has entered a custody order, that state retains exclusive continuing jurisdiction to modify its order even if the custodial parent and child no longer live there, provided it has another basis for jurisdiction under state law (e.g., significant connection jurisdiction) and the noncustodial parent remains in that state.
C. Should the court decline to exercise jurisdiction?
If there is a state law basis under the UCCJA for the exercise of jurisdiction, consider whether there are any reasons why the court either cannot or should not exercise jurisdiction:
5. Is there a conflict with the PKPA that would deprive the resulting order of full faith and credit by sister states? (See discussion of “home state” preference, I.B.1.a., supra, and “Practice Pointers,” I.D., infra);
6. Does the plaintiff come to court with clean hands, or has she/he engaged in any reprehensible conduct (wrongful taking or retention of the child) that would warrant declining jurisdiction? (UCCJA sec. 8; PKPA, attorneys’ fees language);
1. The “home state” is the preferred forum for making an initial custody determination. Do not seek a custody order based on “significant connection/substantial evidence” jurisdiction if another state has “home state” jurisdiction.
If a custody action is filed in a “significant connection” state, the parent in the “home state” may seek dismissal of the suit on grounds that the resulting decree would lack the interstate protection afforded by the PKPA. The motion to dismiss the petition filed in a “significant connection” state should argue that the PKPA is a prudential bar to the exercise of jurisdiction. Cite 28 U.S.C. 1738A(c)(2)(A); (c)(2)(B). Argue that compliance with the federal “home state” priority is necessary to insure issuance of a decree that will be entitled to full faith and credit by sister states.
2. Modification actions: Bring modification action in the state with exclusive continuing modification jurisdiction under the PKPA. Actions brought elsewhere are subject to dismissal pursuant to 28 U.S.C. 1738A(d).
3. Pre-decree abduction cases: File promptly for custody in the child’s “home state” pursuant to section 3(a)(1)(ii) of the UCCJA. The absence of the child from the jurisdiction does not preclude the court from adjudicating custody, provided the notice requirements of the UCCJA (sections 4 and 5) and PKPA (28 U.S.C. 1738A(e)) have been satisfied. The UCCJA allows for notice by publication, which may be the only viable option when an abductor-parent willfully conceals his or her whereabouts.
By filing in the “home state” court for custody, the left-behind parent preserves “home state” jurisdiction and can seek dismissal of a custody action filed by the abductor-parent in another state. The “home state” decree would be entitled to enforcement in the abductor’s state under the PKPA.
4. Simultaneous proceedings: Do not file for custody or modification in a state that is prohibited by either the PKPA, 28 U.S.C. 1738A(g), or the UCCJA (sec. 6) from exercising jurisdiction during the pendency of an action elsewhere. A motion to enjoin a state court from exercising jurisdiction will lie if the state is barred by either statute from exercising jurisdiction.
Assuming the court has jurisdiction to make a custody determination consistent with the UCCJA and PKPA, specific provisions should be included in the custody order to protect against parental kidnapping and to simplify interstate enforcement of the order should this become necessary.
A. Expressly state the basis for the exercise of jurisdiction and supporting jurisdictional facts.
The court should articulate the basis for its exercise of custody jurisdiction directly on the face of every child custody order. This simple step facilitates enforcement of the custody order and reduces the likelihood of it being improperly modified by a sister state.
For instance, the order may state that jurisdiction is based upon a finding that the state is the child’s “home state” within the meaning of UCCJA section 2(5) and PKPA, 28 U.S.C. 1738A(b)(4). If the court exercises “significant connection” jurisdiction, and it has found that no other state exists that qualifies as a “home state,” such findings should be stated expressly in the order, citing 28 U.S.C. 1738A(c)(2)(B)(i).
In a parental kidnapping case, once the child is located enforcement of the custody order should be sought immediately. If the order contains jurisdictional findings, the enforcing court will be more apt to fulfill its statutory obligation to enforce without second guessing the decree court, and less apt to entertain a modification action filed by the abductor-parent.
B. At the bottom of the first page of the order, in BOLD FACE UPPER CASE LETTERS, state the penalties for violating the order.
For example, “VIOLATION OF THIS ORDER MAY SUBJECT THE PARTY IN VIOLATION TO CIVIL AND/OR CRIMINAL PENALTIES.” Judges should advise the parties while they are in court about the consequences of noncompliance. See, e.g., Louis R. B v. Terry B, Fam. Ct. Del., New Castle 1993 (Del. Ch. LEXIS 122)(March 24, 1993)(Court strongly advised both parties that each could be prosecuted if the child was not made available as ordered).
Can a lawyer afford to ignore a client’s concerns about the possibility of an abduction? Given the high incidence of child abduction (see I.B., supra) these cases are not rare occurrences and concerns about abduction cannot be ignored.
In fact, failure to heed a client’s concerns about abduction threats and to seek protective measures can result in malpractice charges. The case of Shehade v. Gerson, 500 N.E.2d 510 (Ill. App. Ct. 1987), is illustrative.
In Shehade, the plaintiff-mother had been awarded temporary custody, and the defendant-Jordanian father had visitation rights. After the father failed to return the child from a visit, the mother contacted her attorney to ask him to obtain an order prohibiting unsupervised visits by the father. No action was taken. When the father repeated his refusal to return the child from a visit two weeks later, the mother immediately contacted her attorney, told the lawyer she believed the father was planning to abduct the child, and asked the attorney to take appropriate legal action to prevent the father from carrying out his threat of removing the child from the U.S. The lawyer failed to act. One week later, the father abducted the child to Jordan.
The mother then sued her lawyer for his failure to seek an order barring unsupervised visitation by the child’s Jordanian father pursuant to her two requests. On appeal, the mother’s malpractice claims against her lawyer were reinstated.
If a client expresses concern about a potential abduction, the lawyer should ascertain the basis for these concerns. The likelihood of an interstate or international abduction may be increased where there is evidence that a parent has:
# previously abducted the child or threatened to do so;
# no strong ties to the child’s home state;
# friends or family living out of state or abroad;
# a strong support network;
# no job, can earn a living almost anywhere, or is financially independent;
# recently quit a job, sold a home, terminated a lease, closed a bank account or liquidated other assets;
# a history of marital instability or a lack of parental cooperation; or
# a prior criminal record.
Some of these and other factors were present in the case of Soltanieh v. King, 826 P.2d 1076 (Utah App. 1992), in which an order modifying “reasonable visitation” rights to restricted visitation was affirmed. The father’s visits with his child were restricted to within the county, and he was required to deposit his passport and visa with the Clerk of Court. The restrictions on visitation were based on the court’s findings that (1) the father had translated the child’s birth certificate into Farsi and filed it in Iran and made the mother believe that he would take the child to Iran; (2) the father had no respect for U.S. laws and did not want his daughter raised under U.S. standards of education, dress, social relations, political philosophy and religion; (3) the father viewed the mother and daughter as property and believed that he was justified in doing anything necessary to remove the child from the U.S. and (4) that the mother feared the father would take the child to Iran based on his threats, and that she would be unable to obtain the child’s return from that country.
A study entitled A Prevention of Parent or Family Abduction through Early Identification of Risk Factors@ was conducted by Dr. Janet Johnston, at the Judith Wallerstein Center for the Family in Transition, and Dr. Linda Girdner, at the ABA Center on Children and the Law. To find out how to obtain a copy of the study, contact Howard Davidson at the ABA Center on Children and the Law at 202-662-1740.
The researchers found that abducting parents:
# dismiss the value of the other parent in the child=s life;
# have young children or children vulnerable to influence; and
# often have the support of their family or others for their actions.
Furthermore, mothers and fathers were equally likely to abduct their children, although generally at different times. Fathers were more likely to abduct when there is no child custody order, whereas mothers were more likely to abduct after the court has issued a child custody order.
Six risk profiles for abduction were identified in the research study. The profiles are parents who:
# have threatened to abduct or abducted previously;
# are suspicious and distrustful due to a belief abuse has occurred and has social support;
# are paranoid-delusional;
# are sociopathic;
# have strong ties to another country; and
# feel disenfranchised from the legal system (e.g., poor, minority, victim of abuse).
When there are factors present that indicate a heightened risk of child abduction, the lawyer should request safeguards from the court that are appropriate to the facts and circumstances of the case. These may include, but are not limited to: (1) restrictions on removal of a child from the state or country; (2) supervised visitation; (3) specific visitation schedules; (4) passport restrictions; (5) obtaining reciprocal orders from foreign court; (6) writs ne exeat; and (7) bonds. Each type of restriction is discussed in III.D., infra.
Very few judges have extensive experience with parental kidnapping cases. As a result, judges generally are wary about ordering protective measures absent a strong showing of the likelihood of flight. See, e.g., Al-Zouhayi v. Al-Zouhayi, 486 N.W. 2d 10 (Minn. App. 1992).
In Al-Zouhayli, the Minnesota Court of Appeals refused to restrict visitation absent a showing by a preponderance of the evidence of a strong probability of abduction. In that case the court found that the plaintiff mother had not met her burden, despite evidence of the father’s dual citizenship (U.S. and Syria), and the trial court’s finding that if the father abducted the child to Syria or Saudi Arabia, where his relatives lived, courts in those countries would not honor Minnesota’s custody order and would award custody of the child to the father.
However, these same risk factors were sufficient for the trial court to direct mother to retain the child’s passport and to prohibit father from applying for a replacement passport without the written consent of the mother or the court (see passport discussion, E., infra), and to limit visitation to the city, on the condition that the father remain employed. Compare In re Joseph D., 19 Cal. App.4th 678 (1993) (Court temporarily suspends mother’s custody rights upon finding that mother presents a risk of flight with the child).
All available evidence of the predictors set forth above, as well as others known to the parent who fears an abduction will occur, should be presented. If an international abduction is possible, the lawyer should discover the foreign jurisdiction’s custody law in order to educate the judge about the difficulties the client would encounter if faced with having to recover the child from abroad.
Countries that have ratified the Hague child abduction convention no longer pose the same problems as non-Hague countries do in regard to obtaining the prompt return of abducted children. However, if children are removed to, or retained in, non-ratifying countries, traditional enforcement problems must be overcome.
Expert witnesses may be needed to persuade the court as to the psychological consequences of abduction, the noncustodial parent’s state of mind and likelihood of abducting the child, and the degree of difficulty in recovering an abducted child based on the laws in effect in the foreign country.
Including a provision in the custody order limiting the right of the noncustodial parent to remove the child from the state and/or the country may help deter an abduction. If abduction to another country is of concern, the language should expressly restrict removal from the United States. Such language will enable the parent to prevent issuance of a passport for the child, thereby thwarting the parent’s ability to take the child out of the country. See discussion of “Preventing issuance of passports,” E.1, infra, for steps to take to stop issuance of a passport.
In some families, the noncustodial parent may desire to restrict the custodial parent’s right to remove the child from the state or country. For instance, there may be justifiable concerns that the child will be moved so far as to obstruct meaningful access to the child, or that the child will relocate to a country that will not honor an American custody order. There is a significant body of case law concerning the right of a custodial parent to relocate with the child. Before seeking restrictions on the custodial parent’s right to remove the child from the state or the United States, the lawyer should review state law to ascertain what standards, tests and/or presumptions may apply in relocation cases. For a summary of case law see Love v. Love, 851 P.2d 1283 (Wyo. 1993); Taylor v. Taylor, 849 S.W.2d 319 (Tenn. 1993). Be aware that relocation case law is developing rapidly, and all noted cases should be shephardized for the most current applicable law. See, e.g. In re Marriage of Burgess, 913 P. 2d 473 (Cal. 1996).
The restriction may be absolute: the noncustodial parent shall not remove the child from the state or country. Or, the noncustodial parent might be prohibited from removing the child from the state or country without prior consent from the judge or written consent from the other parent.
For cases restricting removal of children from the state or country, see, People v. Beach , 194 Cal. App.3d 955, 240 Cal. Rptr. 50 (1987)(threatened abduction from state sufficient for exercise of emergency jurisdiction and “no removal from state” order); Mitchell v. Mitchell, 311 S.E.2d 456 (Ga. 1984) (Restrictions on removal of children from the country were upheld based on a finding that father would have no means of enforcing Georgia order if mother took children to United Arab Emirates, but restrictions on removal from state violated state case law); Soltanieh v. King, 826 P.2d 1076 (Utah App. 1992)(Risk of flight to Iran warrants order restricting father form removing the child from the country).
A provision in the custody order restricting the right of a parent to remove the child from the state or the country will enable the other parent to prevent issuance of a passport for the minor child. Federal regulations governing passport applications for minors, which were revised in February 1996, are found at 22 C.F.R. 51.27.
When custody is in dispute, the State Department may deny issuance of a passport for a minor child if a custody order has been filed with the Department which (A) grants sole custody to the objecting parent; or (B) establishes joint legal custody; or (C) prohibits the child’s travel without permission of both parents or the court; or (D) requires written permission of both parents or the court for important decisions. The State Department reserves the right to withhold passports for minor children until the custody conflict is resolved by an appropriate court, and may issue a passport notwithstanding the restrictions noted above if compelling humanitarian or emergency reasons exist.
The State Department will accept a court order from a state court in the U.S. as well as from a foreign court in the child’s “home state” or country of habitual residence. In cases involving joint legal custody, written permission of both parents is required before a passport will be issued for a child unless the court order specifies otherwise.
The clearer the court order, the easier it is for the State Department to comply with the court’s intent regarding passport issuance, thereby safeguarding against the child’s removal from the country.
For instance, a provision in the court order prohibiting the noncustodial parent from applying for U.S. and/or foreign passports for the child can be helpful. In some cases the noncustodial parent might seek a similar restriction against the custodial parent. In Mitchell v. Mitchell, 311 S.E.2d 456 (Ga. 1984), the court upheld an order enjoining both parents from procuring a passport for the children or applying for passports for the children without the written agreement of the other parent. Also see Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10 (Minn. Ct. App. 1992).
The parent seeking to deny issuance of an original or replacement passport for a minor child should contact the Department of State, Office of Passport Services at (202)955-0337 (1111 19th Street N.W., Suite 260, Washington, D.C. 20522-1705) and request notification if a passport application for the child is made, and further request that a passport for the child not be issued. It is most efficient to fax the request, along with a copy of the custody order, to the passport services office. The fax number is (202)955-0230.
The State Department operates a name check system (also known as a “look out system”) which allows for a file search to see if a passport has already been issued or if an application is pending. Either parent can receive information about passport applications for their child(ren) regardless of their custodial status, unless: (1) a court has ruled otherwise; (2) parental rights have been terminated, or (3) a mature child’s privacy interests in the passport application are asserted. Absent one of these exceptions, if a passport application is received for a child, the parent who has requested notification will be so notified.
In cases of dual national children, the foreign government is under no legal obligation to honor a restriction on passport issuance but may do so voluntarily. Having a court order which prohibits the foreign parent from applying for a foreign passport may help. For instance, a judge may order a foreign parent to surrender his/her passport prior to and for the duration of visits, to advise his/her consulate in writing of this arrangement, and to obtain a written acknowledgment from the consulate addressed to the court, further evidencing that the foreign parent has neither applied for nor received a replacement passport for him/herself or for the children. When court orders are to no avail, political intervention with the foreign government may work.
2. Surrendering passports prior to visits
The order also may direct the noncustodial parent to surrender his or her passport to a designated party prior to visiting the child. The neutral party can be a judge, clerk of court, police officer, clergyman, lawyer, or other person. (If there is concern that the custodial parent will remove the child from the United States, the court could direct that parent to surrender the child’s passports and to refrain from applying for replacements. See E.1., supra.) Once the child(ren) are returned from the lawful visit, the passport can be returned to the parent.
In McEnvoy v. Helikson, 562 P.2d 540 (Or. 1977), the Oregon Supreme Court recognized the right of a father to sue his ex-wife’s lawyer for malpractice and negligence for conduct which allegedly resulted in the removal of his daughter from the country in violation of his custody rights. In McEnvoy, the defendant-attorney returned passports to his Swiss client (the plaintiff’s ex-wife) before she had returned the child to the father, who was legally entitled to custody. The premature return of the passports violated a stipulation incorporated into the court order. Passports in hand, the plaintiff’s ex-wife left Oregon with their child and returned to Switzerland, contrary to the purpose of the court order and stipulation. The father sought $500 in damages for the attorney’s negligence, and $1,750,000 for the loss of companionship, love and affection of his child, for anguish and mental suffering due to the loss of his child, and for the continuing nature of these wrongs.
This suit — and the child’s abduction to Switzerland — were avoidable. The lawyer entrusted with holding passports should not have returned the passports to the Swiss mother until after the child had been restored to the custodial father.
Also see Farrell v. Farrell, 351 N.W.2d 219 (Mich. Ct. App. 1984) (Father residing in Ireland required to surrender passports); Klien v. Klien, 533 N.Y.S.2d 211 (1988) (Following pre-decree abduction of children to Israel, court orders father to return children and surrender all passports to mother); Soltanieh v. King, 826 P.2d 1076 (Utah App. 1992)(Based on trial court finding of risk that father would take child to Iran, father required to deposit his passport and visa with clerk of court, to get a court order to remove them, and not to remove the child from the country).
A predictable source of friction between ex-spouses is a grant of “reasonable visitation” to the non-custodial parent. Just what is “reasonable?@ Who decides? When does a visit become a wrongful withholding of the child? When does the refusal to turn a child over for visitation become wrongful? The latter two questions have criminal law implications. Law enforcement officers are reluctant to intervene in vague custody/visitation situations. This could potentially deprive an aggrieved parent of invaluable law enforcement assistance when a child has been abducted or wrongfully retained.
A good way to avoid questions about visitation rights is to spell them out as precisely as possible in the court order. Set forth the start and end days, and times, for visitation. Allocate holidays and birthdays in the order. If telephone access is contemplated, this should also be addressed in the order.
When international visits are contemplated, the court order may include a provision specifying the date on which the child is to be returned, and that any retention beyond the stated date shall be deemed a wrongful retention within the meaning of the Hague Child Abduction Convention unless prior written consent is obtained from the custodial parent or the court. As a corollary, the court order may also state that the United States is the child=s country of habitual residence, specifying how long the child has lived in the state.
Some situations will warrant supervised (or “monitored”) visitation orders. Examples would be where an abduction has already occurred, or threats have been made to abduct the child. See the discussion of predictors, III. C., supra. Most courts will require a strong showing as to the likelihood of flight before ordering supervised visitation.
Supervised visitation may take place at the home of the custodial parent or some other neutral location. The person given responsibility for supervising the visits may be a law enforcement officer, a social worker, a clergyman, a relative, or any person (or agency) designated by the court.
There is a small but growing network of supervised visitation centers. To obtain information, contact the Supervised Visitation Network’s (SVN) clearinghouse at (520)498-0660 in Tucson, Arizona 85705.
A version of the “Child Safety Act,” introduced by Senator Wellstone as S. 870, was enacted by Congress in 1994 as part of the massive crime bill. The law authorizes supervised visitation centers to apply for block grant funds.
Brewington v. Serrato, 336 S.E.2d 444 (N.C. Ct. App. 1985) (Court upheld severe restrictions on visitation — in custodial parent’s home — based on trial court’s specific findings of fact that the noncustodial parent had previously taken the child to Texas under false pretenses and refused to return the child to North Carolina). But see Mubarak v. Mubarak, 420 S.E.2d 225 (Va. Ct. App. 1992) (In an earlier phase of the Mubarak case, the mother sought to have the father’s visitation supervised following his threats to kidnap the couple’s three children and remove them from the United States. The court denied supervised visitation. Subsequently, the father disappeared with the children, then ages 4, 3, and 1. The children were located in Jordan several months later and the mother regained physical custody through the intervention of the Jordanian government and army.)
Some lawyers suggest asking the local court to direct a foreign parent to obtain a custody order in their country of origin prior to exercising visitation rights. The foreign court order should recognize the U.S. custody order and the continuing jurisdiction of the U.S. court, and agree to order the child’s return to the U.S. if the child is removed to, or retained in, that country in violation of the U.S. order.
A greater deterrent is the imposition of a bond. The noncustodial parent may be directed by the court to obtain a bond in a large enough sum to act as a financial deterrent to child abduction. (Custodial parents who obstruct visitation rights may also be required to post bonds.) Bonds may not be available in all states. If an abduction occurs, the proceeds of the bond generally go to the aggrieved parent. The funds are useful in searching for the abducted children and in hiring legal counsel to enforce custody orders.
Note that in custody modification cases, the fact that a court has required a parent to post a ne exeat bond may be construed as evidence of that court’s intention to exercise continuing jurisdiction.
See, e.g., Greene v. Greene, 1990 WL 56197 (Tenn. App.) (Court required posting of $25,000 bond by the father against the possibility that a Hague application might be needed to secure the return of children who would be visiting him in Canada. The court noted that there had not been any indication that the father was inclined to abduct the children, but because of the degree of bitterness between the parents, the posting of the bond was deemed appropriate); David S. v. Zamira S., 574 N.Y.S. 2d 429, 430 (Fam. Ct. 1991) aff=d, Matter of Shnier, N.Y.L.J. Feb. 27, 1991 at 23, col.2 (N.Y. App. Div. 2d Dept.), 17 FLR 1237 (deposit of cash in lieu of bond); Roberts v. Fuhr, 523 So. 2d 20 (Miss. 1987) (Forfeiture of ne exeat bond and finding that out-of-state custodial father was in contempt were proper and required to enforce mother’s visitation rights with child residing out of state); Rayford v. Rayford, 456 So. 2d 833 (Ala. Civ. App. 1984)(Affirms trial court order requiring noncustodial father to post $5,000 bond to insure compliance with visitation orders. Father had previously violated order and concealed children for three years); Bullard v. Bullard, 647 P.2d 294 (Haw. Ct. App. 1982) (Affirms trial court’s order requiring out-of-state father to execute a bond of $2,500 conditioned upon return of child to Hawaii after visitation. “We view such bond requirements with disfavor…’; courts should require such a bond only if…there is substantial likelihood that its order will be violated absent the bond. Additionally, the terms of the bond must be reasonable under the circumstances.” at 301); Biggers v. Biggers, 650 P.2d 692 (Idaho 1982) (Affirms trial court’s order requiring out-of-state custodial mother to post bond to ensure her return to state with children for hearing); S. Frederick P. v. Barbara P., 454 N.Y.S.2d 202 (Fam. Ct. 1982) (Court denies custodial mother’s request for bond, but holds father’s attorney personally responsible for the return of the child at the end of visitation. “[F]ailure to honor its terms will be actionable personally against counsel under the Code of Professional Responsibility.” at 207).
While joint custody may be a desirable option for ex-spouses who agree to it and who can communicate and cooperate, it does not work in all family situations. Parents who are apt to remain hostile to one another even after a joint custody order is issued are not good candidates for this kind of custody arrangement, especially where they are located in different states. This scenario often results in interstate enforcement problems and should be avoided. Joint custody arrangements should be avoided if there is a likelihood of abduction. See ACommon >Red Flags=,@ p. 10, Supra, for risk factors for abduction.
In August 1989, the American Bar Association Family Law Section adopted a Model Joint Custody Statute. The Model Statute expressly states that “Joint custody is inappropriate in cases in which spouse abuse, child abuse, or parental kidnapping is likely to occur.” Section (1) Policy. The Model Statute also requires the court to consider “any history of or potential for child abuse, spouse abuse, or parental kidnapping” and “the geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody” in determining whether a joint custody order is in the best interests of the child when the parties do not agree to joint custody. Section 3(c) Factors Considered.
Even where parents agree to joint custody, the joint custody order should specify where and with whom the child is to reside at all times. Any restrictions on removal of the child from the United States should be expressly stated. In the absence of specificity about residential arrangements, police are reluctant to intervene and prosecutors are similarly wary about prosecuting parental kidnapping crimes.
Too often a parent who has been subjected to physical or emotional abuse flees to safety with the children before obtaining a custody order. If such parent consults an attorney for advice, the lawyer can help by promptly seeking custody on her or his behalf. It may be possible in some states to obtain a temporary custody order in the safe haven state based on UCCJA emergency jurisdiction. However, the lawyer must then take appropriate steps to have a custody proceeding brought in the state with jurisdiction pursuant to the UCCJA, which in most instances will be the state from which the parent has fled, and the children’s “home state.” Circumstances may justify requesting that state to decline jurisdiction in favor of the state to which the battered parent has fled. See UCCJA secs. 7 & 8.
To protect the battered parent, the lawyer should request the court to seal all records that contain the parent’s and child’s address.
Prompt filing of a custody action will frequently help the battered parent avoid prosecution for criminal parental kidnapping.
A. Ask the police or prosecutor to intervene. If a parent threatens to abduct a child, it sometimes helps to ask the local police or prosecutor to contact the parent and warn him/her of the criminal consequences of child abduction.
B. Notify schools, day care centers and baby sitters of custody orders. Certified copies of custody orders should be on file with the school office, and given to teachers, day care providers, and baby sitters with instructions not to release the child except to the custodial parent unless otherwise directed by the custodial parent. The parent should ask to be contacted immediately if the noncustodial parent attempts to pick up the child without the custodial parent’s explicit authorization.
F. If no decree has been entered, consider custody mediation. This dispute resolution technique may produce a custody order that both parents will be more willing to abide by than one made by a judge who is less familiar with the family. Mediation is considered inappropriate in families with a history of domestic violence or notable power imbalances between the partners.
G. Consider counseling. Child Find of America, Inc., a nonprofit organization, offers telephone counseling for parents who are considering abducting their children or who want to end an abduction situation. The telephone number is 1-800-A-WAY-OUT.
V. Implementing Legal Remedies in Parental Kidnapping Cases
If, despite best efforts to safeguard against an abduction, the child is abducted, the lawyer should see to it that all legal remedies appropriate to the case are implemented. The following list summarizes the steps to take if a child is abducted.
A. Report the child as missing
The parent should be advised to go to the local police department and file a Missing Persons Report. Ask the police to enter the child’s description into the National Crime Information Center computer (“NCIC”), which is maintained by the FBI. The police are obligated to take the report and enter it into the NCIC without a waiting period. Missing Children Act, 28 U.S.C. 534; National Child Search Assistance Act, 42 U.S.C. 5779. If the police do not make this entry, contact the state clearinghouse for assistance or the National Center for Missing and Exploited Children (“NCMEC”), 1-800-843-5678.
The parent should call the National Center for Missing and Exploited Children to report the missing child. The telephone number is 1-800-843-5678. NCMEC also has information on nonprofit support groups around the country that might offer the parent emotional support and other guidance. Ask for a free copy of NCMEC’s family abduction booklet, Family Abduction: How to Prevent an Abduction and What to Do If Your Child Is Abducted. If the child has been taken out of the country, the parent should also contact the State Department, (202) 647-2688. Ask for a free copy of their booklet, International Child Abduction.
The lawyer should explore with the left-behind parent the possibility of seeking criminal charges against the abductor. If desired, the parent should meet with the prosecutor, alone or with the lawyer, to discuss criminal charges under state law.
All states make custodial interference a crime. However, the elements of the offenses and the punishments vary from state to state. It is important to explain to the parent that the prosecutor’s job is to prosecute the offender-parent and not to secure the child’s return. (The sole exception is in California, see California Family Code 3130 to 3133.) Thus, the parent and lawyer must continue efforts to obtain a custody order and to locate the child.
Despite widespread passage of criminal custodial interference statutes, many prosecutors remain reluctant to charge these offenses. The Office of Juvenile Justice and Delinquency Prevention of the U.S. Department of Justice funds a project to assist prosecutors with the effective implementation of these laws. The American Prosecutor Research Institute (APRI) of the National District Attorneys Association ((703)739-0321) can provide information about their “Prosecution and Investigation of Parental Child Abduction Cases Project,” and may have suggestions for coordinating with local prosecutors on abduction cases.
One reason why prosecutors are not quick to prosecute parents who perpetrate abductions is their perception that complainant parents are apt to drop charges once the abducted child is recovered. Before filing a criminal complaint, parents should consider whether they will assist in the prosecution of the abductor-parent once the child is returned if the prosecutor needs their testimony.
If the child has been taken or kept abroad, the federal International Parental Kidnapping Crime Act of 1993 (IPKCA) (18 U.S.C. 1204) may apply. The U.S. Attorney’s office has authority to charge a crime under this statute. See p. 4, supra, for a description of IPKCA.
If the abductor-parent is charged with a state felony, make sure the charge is entered into the NCIC and cross-referenced to the report on the abducted child. Also ask the prosecutor to request a UFAP warrant pursuant to 18 U.S.C. 1073. If issued, the FBI will undertake an investigation and seek to arrest the abductor-parent.
F. Locate the child
Encourage the left-behind parent to search for the child. NCMEC and support groups can provide useful information to help guide the parent’s search efforts. See the list, VI., infra, of government resources in parental kidnapping cases. The lawyer’s role in the search may include, inter alia, seeking subpoenas for bank and telephone records of the abductor, and asking the court to request the Federal Parent Locator Service to search its computer files for address information on the abductor. This is authorized in the PKPA, 42 U.S.C.653-655, 663. Lawyers should be aware that courts have compelled disclosure of information as to their clients’ whereabouts in child abduction cases notwithstanding the attorney-client privilege. See, e.g., Jafarian-Kerman v. Jafarian-Kerman, 424 S.W.2d 333 (Mo. Ct. App. 1968); Matter of Jacqueline F., 391 N.E.2d 967 (N.Y. 1979); Dike v. Dike, 448 P.2d 490 (Wash. 1968); Bersani v. Bersani, 565 A.2d 1368 (Conn. Super. Ct. 1989).
G. Consider a tort suit
Another possible avenue for relief, which may also produce leads in the search for the child, is a tort action for damages stemming from the wrongful removal, retention or concealment of a child. Causes of action include intentional infliction of emotional distress; outrageous conduct; and interference with custody or visitation. Cases have been successfully maintained in federal and state courts in many states against the abductor-parent, friends, relatives, and lawyers. See, e.g., Lloyd v. Loeffler, 539 F. Supp. 998 (E.D. Wis. 1982), aff’d, 694 F.2d 489 (7th Cir. 1982); Pankratz v. Willis, 744 P.2d 1182 (Ariz. Ct. App. 1987); Wood v. Wood, 338 N.W.2d 123 (Iowa 1983); Kramer v. Leineweber, 642 S.W.2d 364 (Mo. Ct. App. 1982); Raftery v. Scott, 756 F.2d 335 (4th Cir. 1985); Fuller CATV Construction, Inc., v. Pace, 780 P.2d 520 (Colo. 1989). Only a few courts have rejected a separate cause of action for custodial interference. See, e.g., Larson v. Dunn, 460 N.W.2d 39 (Minn. 1990)(Supreme Court refused to create a tort of intentional interference with custodial rights); Zaharias v. Gammill, 844 P.2d 137 (Okla. 1992)(Court refuses to recognize father’s claim against his in-laws for tort of custodial interference, but allows his cause of action for intentional infliction of emotional distress on same facts).
Once the child is located, the local police may assist the parent in picking up the child. This is the exception, not the rule. It could help to file the custody order with the local court pursuant to the UCCJA, sec. 15. Once filed, the order is to be treated as a local order and enforced according to procedures recognized in the state.
More often in practice, the parent must bring an action for enforcement of the custody order in whatever state the child is found. This is clearly the safest course to take in light of the U.S. Supreme Court’s decision in California v. Superior Court of California, San Bernardino County (Smolin, et al.), 716 P.2d 991 (Cal. 1986), rev’d, 484 U.S. 400, 107 S.Ct. 2433 (1987).
Family lawyers should read Smolin in entirety. It is a criminal extradition case which stemmed from a father’s self-help recovery of his children from Louisiana based upon a California custody order. Even though the father’s California custody order appeared to be consistent with the PKPA and thus entitled to full faith and credit in Louisiana, he nevertheless was subject to extradition to stand trial on charges of simple kidnapping under Louisiana law. Under the Extradition Act, the place for the father to prove his defenses to the criminal charge was Louisiana, not California. Based on Smolin, lawyers should advise clients of the perils of self-help child custody enforcement: Criminal extradition is not barred even when the parent recovers a child pursuant to a custody order entitled by the PKPA to full faith and credit.
In connection with an action to enforce a custody determination, the original lawyer should see to it that the custody order is filed with the clerk of the local court pursuant to UCCJA sec.
If it is likely that the abductor-parent will flee the jurisdiction upon receipt of notice of the enforcement hearing, seek a “pick-up order,” pursuant to which local law enforcement officers take physical custody of the child and serve notice on the abductor of the enforcement hearing, which is held soon thereafter. The child may be placed with the out-of-state parent who is seeking enforcement. A bond may be requested to guarantee that parent’s continued presence in the state pending the enforcement hearing. Alternatively, the child may be placed temporarily in shelter or foster care as a last resort.
It may be desirable to seek modification of the original custody order to include safeguards to prevent a re-abduction. The child’s feelings about the abductor-parent should be considered. See the discussion of exclusive continuing modification jurisdiction under the PKPA, II., supra.
Many states have established missing children=s clearinghouses to assist in the location, recovery and return of missing and parentally abducted children. Contact the National Center for Missing and Exploited Children, 1-800-843-5678, for the telephone number of the clearinghouse in your state.
C. Parent Locator Service
The State Parent Locator Service may be contacted for information and guidance on using the Federal Parent Locator Service to locate an abducting parent and abducted child. The locator service typically is part of the Office of Child Support Enforcement. The Federal Parent Locator Service may be contacted at (202)401-9267.
D. Department of State: International Child Abductions
The U.S. Department of State has a Children’s Issues Division in Washington, D.C. The telephone number is (202)647-2688. The U.S. Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction may be contacted at the same telephone number.
To prevent issuance of passports, contact the Office of Passport Services, which can be reached at (202) 955-0231or fax the office at (202)955-0230.
E. Department of Defense Worldwide Locator Services
Legal Assistance Division, Office of Judge Advocate General, (703)697-3170
Chief of Naval Personnel, (703)614-2792
c. Marine Corps
Head Legal Assistance Office, Judge Advocate Division, (703)614-1513
d. Air Force
F. Criminal parental kidnapping cases
1. American Prosecutor Research Institute (APRI), Prosecution and Investigation of Parental Child Abduction Cases project, (703)739-0321.
APRI can provide information on parental abduction crimes and prosecutions to local prosecutors, which may (or may not) result in the filing of criminal charges against a perpetrator-parent.
2. INTERPOL, U.S. National Central Bureau (USNCB), (202)616-9000.
INTERPOL provides a global communications network to enable police around the world to coordinate international criminal investigations. In the U.S., the responsibility for missing persons and parental kidnapping cases lies with the Alien/Fugitive Enforcement Division.