Given Michigan’s disastrous economy, families are increasingly mobile. The prospects of a parent removing children from Michigan in violation of a court order or in the absence of a court order have increased as a result. Parental kidnapping is a felony punishable by 1 year and 1 day in prison. However, because of the potential harm to children, it is important to focus on prevention.
On June 14, 2007, legislation was initiated in Michigan that would help parents seek court intervention to prevent parental kidnappings. House Bill No. 4925 [Last accessed on November 22, 2008]. The Model Act is called the Uniform Child Abduction Prevention Act. Unfortunately, that legislation has languished in Committee ever since.
Family law experts around the country have actively supported this uniform law. The question for Michigan parents and family lawyers is this: How can this Model Act help prevent and/or resolve parental abductions?
Those experts working in the area of parental abduction have identified characteristics that help parents and courts assess the risks of parental abductions. The Department of Justice recommends prevention as the first consideration for parents and courts, particularly given the identified potential harm to children who might be abducted. The United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention has published a 158 page document “A Family Resource Guide on International Parental Kidnapping,” Revised January 2007 [hereafter “the Guide.”] Download the Guide here. The purpose of this document is to help parents of children prevent international parental abductions, however many of the suggestions are also highly applicable to interstate abductions. Other goals of the Department of Justice are to stop abductions in progress, to help parents locate children who have been abducted or who are wrongfully being retained in another country, to bring an abductor to justice, to recover children who have been abducted or are wrongfully retained in another country, and to help parents gain access to children being retained in another country. See the Guide at page 1.
I. Prevention is key. The Guide makes clear that prevention is key; the first chapter focuses on prevention. The Department of Justice has many suggestions for parents and courts intent on putting into place prevention measures. The Uniform Child Abduction Prevention Act focuses on the same types of prevention that are recommended by the Justice Department. Note that more careful drafting of child custody and parenting time orders in important to ensure that such orders can be enforced in other states and other countries. For example, it is important that parents and courts take steps to ensure that the court orders issued have form and content that bring them into substantial conformity with the Uniform Child Custody Jurisdiction and Enforcement Act [hereafter “UCCJEA”]. The purpose of that is to ensure that any court in another state or in a foreign country and also the law enforcement agencies in sister states and foreign countries will recognize the jurisdiction of the issuing court and will enforce its orders. [For lawyers, this means that the Michigan order would be given “full faith and credit” in another state.
In order to ensure that this will occur, it is important for court orders to show on their face that which parent has custody and also findings of fact that show the specific jurisdictional basis for the Court’s issuance of any parenting time order. If a court order for custody and parenting time lacks these important details, the Orders would not be automatically entitled to enforcement under the UCCJEA or under the Hague Convention in other states or in another country.
Michigan’s Acknowledgment of Parentage Act, provides that where the parents have never married, but have both signed an acknowledgment of parentage and that in the absence of a court order, the defendant mother has initial custody without prejudice to the father’s right to seek custody and/or parenting time. It is important where the parents are in the initial stages of litigating custody and parenting issues that the court’s orders reflect the custodial rights of the parent until the court has had the opportunity to hold a hearing to decide the custodial and parenting time award. Other states and countries will not recognize Michigan’s statutory ground for custody with the mother unless it is stated on the face of the initial court order.
II. FAQs: The Department of Justice’s guide is organized so that each chapter begins with “FAQs” or frequently asked questions. The first frequently asked question discussed in this publication is this:
A. Why is it important to recognize the risk of international parental abduction and to put appropriate safeguards in place? I submit that even interstate parental abduction safeguards are necessary. Those would be possible if Michigan would enact the Uniform Child Abduction Prevention Act.
This is what the State Department says:
“There are two reasons why parents should be alert to the possibility of abduction and take steps to prevent it. The most important reason is to protect your child from the potentially harmful effects of international kidnapping. These are described later (see “Potential harm to the child” on page 7 and “What myths hinder criminal prosecution and investigation, and how can they be dispelled?” on page 8). The second reason is to avoid the legal complications and unpredictable outcomes associated with recovery efforts in another country.
“Once a child is abducted from this country to another, the laws, policies, and procedures of the foreign country determine whether and how the child will be returned. U.S. domestic law, which is favorable to recovering children who are abducted to this country, is not the controlling law once a child is in another country. This is true even if the abducted child is a U.S. citizen. The U.S. Government may be able to help with your case, but it does not control the outcome.” The Guide at page 4
The second frequently asked question discussed in this publication is this:
B. Are there warning signs that your child may be at risk of international parental kidnapping?
“Red flags” or “risk factors” identified by the Department of Justice. The Department of Justice identifies the following “red flags” or warning signs of risk. According to the Guide, it may be a red flag is a parent has:
- Previously abducted or threatened to abduct the child. Some threats are unmistakable such as when an angry or vindictive parent verbally threatens to kidnap the child so that “you will never see the child again.” Others are less direct. For instance, you may learn about the other parent’s plans through casual conversation with your child.
- Citizenship in another country and strong emotional or cultural ties to the country of origin.
- Friends or family living in another country
- No strong ties to the child’s home state
- A strong support network in another state or country
- No financial reason to stay in the area (e.g., the parent is unemployed, able to work anywhere, or is financially independent).
- Engaged in planning activities, such as quitting a job; selling a home; terminating a lease; closing a bank account or liquidating other assets; hiding or destroying documents; or securing a passport, a birth certificate, or school or medical records
- A history of marital instability, lack of cooperation with the other parent, domestic violence, or child abuse
- Reacted jealously to or felt threatened by the other parent’s remarriage or new romantic involvement
- A criminal record.
Id. at pages 4—5.
D. What are the personality profiles of parents who may pose an abduction risk?
The Department of Justice identifies six profiles that are associated with risk of parental abduction. One of those profiles specifically fits the plaintiff in this case. The Guide says:
- Profile l: Parents who have threatened to abduct or have abducted previously.
- Profile 2: Parents who are suspicious or distrustful because of their belief that abuse has occurred and who have social support for their belief
- Profile 3: Parents who are paranoid
- Profile 4: Parents who are socipathic
- Profile 5: Parents who have strong ties to another country and are ending a mixed-culture marriage
- Profile 6: Parents who feel disenfranchised from the legal system (e.g., those who are poor, a minority, or victims of abuse) and have family and social support.
As far as international parental abductions go, the Guide states emphatically that parents who fit profile 5—those who are citizens of another country (or who have dual citizenship with the United States) and who also have strong ties to their extended family in their country of origin—have long been recognized as abduction risks.
The risk is especially acute at the time of parental separation and divorce, when the parent feels cast adrift from a mixed-culture marriage and a need to return to ethnic or religious roots for emotional support and to reconstitute a shaken self-identity. Often, in reaction to being rendered helpless or to the insult of feeling rejected and discarded by the ex-spouse, a parent may try to take unilateral action by returning with the child to his or her family of origin. This is a way of insisting that one cultural identity be given preeminent status over the other in the child’s upbringing. Often the parent will have idealized his or her own culture, childhood, and family of origin. Id. at page 5.
E. Other concerns. Might the child have or be granted dual citizenship that would allow a parent to take the child to a country that is not a signatory to the Hague Convention, making recovery impossible?
In a recent case presenting in my office, the other parent was born in Canada. Concern was thus raised about allowing the parties’ child to be transported to Canada in the absence of an initial child custody determination because this child would, in Canada, automatically be granted citizenship. See Citizenship and Immigration Canada on the Internet. This government-sponsored web site states: “If your child was born outside Canada after February 14, 1977, and you were a Canadian citizen when the child was born, your child is automatically a Canadian citizen.” See http://www.cic.gc.ca/english/information/faq/citizenship/cit-proof-faq02.asp [Last accessed November 10, 2008]
III. What can a court do to reduce the risk of international parental kidnapping?
This FAQ is also addressed by the Guide in Chapter 1. It is always possible, upon application, for a Court to put safeguards in place before a problem occurs. Certainly, this is preferable to “closing the barn door after the horse is already gone.” The Guide says this about what a Court might do to reduce the risk of an international parental kidnapping:
“As discussed above, you may be able to get an emergency pickup order if time is of the essence—for instance, to stop an abductor from leaving the country with the child. Timing and good luck may work in your favor, but don’t count on it if you have reason to anticipate a problem. If you are concerned about the possibility of abduction when you are going through divorce or custody proceedings, ask a judge to include prevention provisions in the initial custody order. If the initial order does not contain prevention provisions but the situation changes and you need them, you will have to go back to court to request a modification of the original order. Your lawyer should review the Federal Parental Kidnapping Prevention Act (PKPA) (28 U.S.C. § 1738A) and your state’s custody jurisdiction law (either the Uniform Child Custody Jurisdiction Act or the Uniform Child Custody Jurisdiction and Enforcement Act) to determine which state has jurisdiction to make an initial custody/visitation order or to modify an existing one.”
IV. How can a litigant persuade a judge that prevention provisions are needed?
This FAQ is also addressed by the Guide in Chapter 1. The Guide notes that few family court judges are familiar with the details set out in this article and in the Guide concerning parental abduction. The Guide offers parents advice about prevention and notes that a only few states have enacted the Uniform Child Abduction Prevention Act. Michigan has not done so, despite introduction of House Bill No. 4925 on June 14, 2007—more than a year ago. The Bill was referred to the Committee on the Judiciary and has languished there ever since. http://www.legislature.mi.gov/(S(uvv3fqyteo4ee0uygjkyzf55))/mileg.aspx?page=getobject&objectname=2007-HB-4925&query=on&highlight=abduction%20AND%20prevention [Last accessed on November 22, 2008].
V. What should a Family Court’s response be to the potential for child abduction?
These are the concerns that the Uniform Child Abduction Prevention Act would have family courts address in order to reduce and/or to prevent parental abductions:
Risk of abduction. The Guide recommends that parents and their lawyers make judges aware of all the relevant red flags of a possible abduction and also whether the other parent fits one of the six personality profiles of an abductor and thus may pose a risk for abduction.
Potential harm to the child. The Department of Justice says in the Guide:
“Parents who kidnap their children seldom have their children’s best interests at heart. The experience can cause lasting psychological harm to the young victims. Some abductors live a fugitive existence, moving around and concealing their true identities to avoid detection. A child’s name and appearance may be altered. A child may be kept out of school to avoid detection through school records. Abducted children may be told that they are not loved by the left-behind parent or that the searching parent is dead. They may be taught to fear the very people who could help them: police, teachers, and doctors. They may be neglected by their abductors.
“In addition to causing psychological harm, some abductors pose a risk of physical harm to their children, both during and after the abduction. Parents most likely to harm their children are those who have serious mental and personality disorders, a history of violence or abuse, or little or no prior relationship with the child.”
Id. at page 7.
Obstacles to the location, recovery, and return of parentally abducted children.
In addition to the personal issues between parents that may lead to an abduction, the Department of Justice recommends that family courts address in their orders issues that may ameliorate the problems associated with location, recovery and return of children abducted by their parents. This may take the form of bonds to secure the return of the child (or to be used by the left-behind parent to recover the child). It may also involve orders not to apply for a passport in the United States or in a country where the child may be a dual national. It may involve orders requiring deposit of a passport with the court in order to prevent removal beyond the borders of the United States. This latter is especially important (especially when combined with enrollment in the Children’s Passport Issuance Alert Program operated by the Department of State) where the non-custodial parent is a citizen of a country that is not a signatory to the Hague Convention.
VI Enforcement concerns. Article 20 of the Hague Convention: Article 20 could potentially prevent return of the child from another state or country if a party claims that the Court’s orders were not issued in conformity with the UCCJEA. (The Department of Justice states that Article 20 is rarely invoked or successful.)
Of greater concern, the UCCJEA can be a powerful enforcement tool if a child is wrongfully detained in another state or country. That is only true, however, where the issuing court’s orders are issued in substantial conformity with the UCCJEA. MCL 722.1303 While other countries are not bound by the UCCJEA, the fact that Michigan’s initial child custody determination is made in conformity with the UCCJEA may be persuasive in obtaining cooperation in the event that a Hague Convention action is required to recover a child wrongfully retained in another country.
VII. What prevention efforts could courts faced with potential risk of parental abduction take?
The Guide contains specific recommendations about what a Court should do when confronted by a situation such as that presented in this case. Those recommendations are lengthy and essentially mirror the Uniform Child Abduction Prevention Act. See the Guide at pages 10 through 24. The Department of Justice lists many prevention efforts or safeguards that are, in fact, the same safeguards that the Model Act would have a court in Michigan consider. It is imperative, however, in order to fashion an Order that would be entitled to Full Faith and Credit (or the equivalent in a foreign country) and to enforcement, that a court making an “initial child custody determination” do so in a manner that is in substantial conformity with the UCCJEA. Such an order should, at a minimum, contain the following:
A. A statement of the basis of the court’s jurisdiction. In other words, a statement that, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, MCL 722.1201(a), Michigan was the home state of the minor child on the date of the commencement of the action;
B. Identification of basis of jurisdiction under the UCCJEA. A statement that notice and an opportunity to be heard were given to both parties in substantial conformity with the UCCJEA at the time the Order was entered, consistent with MCL 722.1108(3). [Notice is not required when a party submits to the jurisdiction of the court; however, an opportunity to be heard in a meaningful way has also to be granted.]
C. A clear definition of the custody and parenting time rights of each parent. A statement that clearly defines the custody and parenting time rights of each parent. Such an order could state, consistent with MCL 722.1006 that “the mother has initial custody of the minor child, without prejudice to the determination of either parent's custodial rights, until otherwise determined by the court or otherwise agreed upon by the parties in writing and acknowledged by the court. This grant of initial custody to the mother shall not, by itself, affect the rights of either parent in a proceeding to seek a court order for custody or parenting time.”
D. A statement of findings of fact regarding risk factors. Each custody and parenting time order is a case where parental abduction is a risk should state on the face of the order that identify the court’s specific concerns about the existence in the particular case of risk factors for parental abduction. The order should make clear that the court has considered the potential harm to the particular child or children posed by a potential abduction, and has considered what safeguards or preventive measures would be appropriate in the particular case.
E. Specific parenting time terms and conditions. A statement that specifically defined and described parenting time that will be easy for law enforcement agencies anywhere to understand and enforce.
F. Statement of penalties for violation of order. A statement of the penalties for violating the order. The Guide states that this should be prominently placed on the first page of the order.
G. Identification of habitual residence of the child. Identification of the child’s country of habitual residence at the time of issuance of the Order.
H. A mirror image order. See pages 11 and 12 of the Guide. This suggests that a court of another country might be willing to issue a mirror image order. [Under the UCCJEA, a party need only register a conforming order to obtain enforcement/] If a Court made it a condition for removal from the United States that the non-custodial parent obtain a mirror image order, this would perhaps ease the burden of enforcement.
I. Non-removal clause. See page 11 of the Guide. Of course the Caveat is important. Sometimes, a child or children are automatically a citizen of a foreign country where one of the parents was born. There is usually absolutely nothing that would prevent that country from issuing a passport for this child. In that event, there would be nothing to stop the non-custodial from taking the child out of the United States using a passport from another country despite the fact that the custodial parent may have enrolled the child in the United States Department of State Children’s Passport Alert Program. For details see http://travel.state.gov/family/abduction/resources/resources_554.html
See also on pages 11—12 of the Guide the caveat that “Foreign governments are not bound by U.S. custody orders and may issue passports to children who are their nationals.” There remains the possibility that if a court orders the non-custodial parent to notify his embassy or consulate of an order prohibiting the issuance of a passport for the child and to furnish the court with a letter from the foreign embassy or consulate acknowledging receipt of the order, the foreign government may, in fact, comply voluntarily with the U.S. court orders.
J. Additional terms and conditions upon parenting time. The Model Act [the Uniform Child Abduction Prevention Act] sets forth in detail the possible terms and conditions that an abduction prevention order might contain. See Section 8(3) of HB 4925. Note as well, upon request of a party or on the court’s own motion, the court, after reviewing evidence, the court should enter an abduction prevention order that, among other things, considers the age of the child and the potential harm to the child from an abduction, as discussed in the Department of State’s Guide.
If your child has been kidnapped, contact Jeanne M. Hannah. You'll find information about her experience helping parents of children who have been kidnapped on her website http://parental-kidnapping.com
For more resources dealing with parental abduction see: