When it comes to international child custody abduction, you need to be vigilant if you have a child with a partner outside the country.
By Stephen B. Ruben, Esq. (California)
We are all in connected in global community. In the United States, we celebrate diversity of various cultures and values. As the world continues to get smaller and more competitive in our global society, international travel and business relocation becomes more common. We have a forward-looking immigration policy that continues to foster multiculturalism in the United States. With these dramatic changes in our celebration of diversity, traditional areas of family law once thought to be of primarily local jurisdictions are now turning out to have international complications. Marriages between citizens of differing countries can be extremely beneficial and worthwhile, but when they break down the fight over child custody and visitation can quickly become quite complex. To add to these complications, greater legal challenges must be faced when one spouse decides to take matters into their own hands and simply disappears with the child, returning to their homeland. You need to be observant of any changes in behavior, trust your intuition and be aware of tell-tale warning signs. As one of our founding fathers, Benjamin Franklin said “an ounce of prevention is worth a pound of cure.”
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a multilateral treaty which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. Although the United States is a dominant player and strongly advocates enforcement of the return of abducted children, the compliance rate by other nations is not uniform and implementation is spotty at best. Unlike many of signers to the Hague Convention, the United States will not pay legal fees or provide legal representation for the left-behind parent invoking the Hague Convention in the United States. I know from actual case experience that hearings cost minimally $30,000 and upwards to hundred of thousand of dollars in legal fees and costs. What happens to the left-behind parent if he or she has no resources?
The Sean Goldman case placed the issue of international child abduction front and center into the public eye, particularly in the United States from where the little boy, Sean Goldman, was abducted by his mother to Brazil. The subsequent death of the mother and continued retention of Sean Goldman by his stepfather, a noted Brazilian lawyer specializing in Hague Convention cases sparked an international controversy between the two countries. Much has been made of the lack of compliance by the Brazilian authorities with the Hague Convention as well as numerous and repeated findings of non-compliant behavior by Brazil and other Hague Convention signatories with whom the United States has partnered. Many countries are not even signers of the Hague Convention; for example, among the predominant nations under the umbrella of G-7. As noted recently by ABC news in their September 8, 2011 report, “Japan has not signed the Hague Convention and is known as a safe haven for parents who abduct or wrongly retain their children.”[i] With the exception of Israel, there are no other signers in the Mid-East. Even though nations such as Sweden and Brazil are signers, many refuse to fully embrace the Hague Principles.
Pay attention to Early Warning Signs of Child Abduction
Knowing that the costs of litigation will be expensive and time consuming and that there is no guarantee that Foreign Courts will support the return of your child, what measures can you take if you believe that your child is in danger of being abducted?
In my experience in representing a left-behind parent, I have learned that there generally are early warning signs. Pay attention if there has been a previous threat to abduct your child. Other signs include whether the mother or father continues to maintain close ties to his or her homeland. Is there any indication that parent has suggested that he or she has a problem with the legal system in the United States and feels more comfortable with rules regarding parental rights in another country? Have there been any recent trips by this parent when you were uncertain the children would not be coming home? For example, what if travel information regarding ticketing and return were conveniently not forthcoming?
Eight Safety Measures to Prevent Abduction and Keep Your Child Safe
Due to the high emotional intensity of child custody disputes, you should consider taking the following safety measures:
- Retain originals of your child’s birth certificate and all passports in a safety deposit box requiring two signatures of both parents.
- Maintain current photographs of your child including in electronic format for ease of distribution.
- Preserve and update a detailed description of your child that includes hair and eye color, height, weight, and date of birth. You should include identifying information such as whether your child wears glasses, braces, birthmarks, piercing and/or tatoos.
- Make sure that you have your child fingerprinted by your local law enforcement agency.
- Provide written instructions including any court order to your child’s school, day care center or nanny and doctor’s office staff only to release information to specified sources.
- Teach your child to spell their full name and memorize the home or cell phone number that you can be reached at any time.
- Teach your child how to send you a text message from their cell phone and how they may receive a text message.
- Provide a copy of any court order regarding custody to the child’s school, day care provider, and nanny. Make sure that your custody order is specific showing the actual parenting time arrangements. The order should specify the exact times and locations for custody and visitation exchanges and what persons are authorized to drop off and pick up your child.[ii]
Seven Preventive Measures
- Closely monitor all joint bank accounts and credit card accounts for unusual or increased financial activities. Make sure that all of these credit card accounts are available on line so that you do not have to wait for a mailed copy of the monthly statement.
- Telephone billing statements from both land lines and cell phones should be available on line and closely monitored particularly for any increased or unusual international telephone activity. Long distance computer telephone services such as Vontage and Skype accounts need to reviewed on all home computers . In many cases, the abducting parent has close ties to his or her country and often pre-arrangements have been made for the abduction many months in advance. Pay attention if billing statements that routinely came to house are no longing coming and perhaps being sent to an office.
- A significant increase in email traffic may show signs of planning for abduction.
- Only provide written consent to travel internationally provided that you can verify the reasons for the travel. Please be aware that many parents who are planning an international abduction use a pretext of visiting a family member that is ill or a special occasion. Trust your intuition. Be suspicious that [they] don’t include you in these travel plans, but be careful in making inquiries.
- If you suspect an international child abduction, contact an experienced child custody expert in family law. You may need to file for either a Petition for custody, legal separation or divorce in order to ensure that a restraining order prevents the other parent from leaving your state of residence much less a foreign county. Keep in mind that you must get a custody order in place to prevent an abduction. Many states including California issue an Automatic restraining order when seeking a Petition for Custody, legal separation or dissolution of marriage. Other states may not provide such relief when parties are not married. You need to be aware of whether your filing based on your legal relationship with the other parent triggers an automatic restraining order. If not, you will need to file a separate motion for a temporary injunction. Depending on your state’s statutes, you may be able to obtain this temporary order without notice to the potential abducting parent.
- If you are separated or the divorce process is in the place, you should request that your attorney register any U.S. citizen child with the U.S. Department of State Passport Lookout System. This registration will enable you to be contacted if anyone applies for a new or replacement U.S. passport for their child. The system also alerts all national passport agencies and U.S> embassies and consulates abroad if a parent registers an objection to the issuance of a passport for the child. Please note that the agency has no authority to track the use of or cancel a passport, but it does provide you with an alert.
- U.S and all Foreign passports should be held in a safety deposit box requiring two signatures and two separate keys for their release. The Children’s Passport Issuance Alert Program does not prevent a dual-national child from securing and traveling on a foreign passport. Your child may be able to travel without your consent on foreign passport. Having control of this dual passport acts a check for an unauthorized travel abroad without your consent.[iii]
When a child is abducted across international borders, both the parent left behind and the child are clearly victims. The purposeful plan to remove a child from his or her home and efforts to secure the child’s return is a long and painful process with serious financial and emotional consequences. Paying close attention to these early warning signs is important when dealing with a potential child abduction and be proactive. I strongly encourage you to take both these safety and preventive measures in order to lower the threat of a child abduction. Divorce is a very difficult emotional and financial experience already and you especially need to be vigilant if you have a child with a partner outside of the United States.
Stephen B. Ruben is the Managing Director of The Ruben Law Firm, P.C. The Ruben Law Firm provides family law representation, mediation, and private judging in San Francisco, San Mateo, Marin, Alameda, Contra Costa and Marin Counties. Steve’s practice is devoted to complex family law litigation including high net worth divorce cases, financial issues, spousal and child support, high conflict custody disputes including international child custody and abduction disputes, non-marital and domestic partnerships and dissolutions. Steve is a Certified Family Law Specialist and has been practicing law for over thirty years, with an impressive record of results in highly contested cases. He is especially sought after for his ability to effectively and quickly turn around cases that have languished because of passive or poor representation.
[i] ABC New Report Septmber 8, 2011 Japan provides a safe haven.
[ii] Adapted from Bureau of Affairs. International Child Abduction, Washington , D.C. . U. State Department, July 1,1997.
[iii] Preventing Child Abduction, 2002 Richard Harris, The Harris Law Firm, Denver, Colorado
International Child Custody & the Hague Convention
What remedies are available to left-behind parents when one parent unilaterally removes a child from the child’s place of habitual residence to another country?