UPDATES IN MICHIGAN FAMILY LAW

International parental kidnapping | Can parent avoid return of child?

As many of my readers know, parental kidnapping is a topic of great interest to me. Thus when James Ryan of Plymouth Michigan sent me the decision handed down by the Sixth Circuit Court of Appeals in Simcox v Simcox, Case No. 07-3911 (December 28, 2007), I set it aside on my desktop to read and for comment. The case is important because it provides standards for lower courts to follow when assessing a Hague Convention petition for return of a child to the country of habitual residence when the defense is raised that return will pose a "grave risk of harm" to the child. The question is, of course, how should the court determine whether there is a "grave risk of harm?"

Passports | Parental Kidnapping - Prevention & Recovery

A parent expressed concerns yesterday about issuance of a passport to a child. The parent's fear was that the child might be taken out of the country and not returned. Certainly, the Hague Convention, can be of assistance in recovering children. However, this is an expensive, time-consuming, and not always successful process, particularly if a child is taken to a country that is not a Hague Convention signatory.

As a practical matter, Homeland Security is now requiring that any child have his/her own passport -- even for travel to Canada or Mexico.  In a high conflict case involving one or more foreign-born parents, where there is a potential flight risk, there are certain protective measures that will help to prevent a parental abduction.

Parental Kidnapping | Prevention and Response

Family abductions bring into play civil and criminal laws at state, national and international levels. There are several types of parental abduction. Sometimes, a parent may flee with a child temporarily, hoping to gain an advantage in a custody dispute to parents or hoping to find more favorable laws in another state.  [Some states, for example, have mandatory joint custody laws.] Other times, a parent who has lost a child custody battle in one state may cross state or international lines, hoping to find a friendlier court that will modify the custody order. Other times, a parent takes a child intending to permanently deprive the other parent of parental rights. 

Family Abductions: Hague Convention cases

Sometimes a non-custodial parent abducts a child and takes the child to another country, refusing return to the custodial parent. Many countries are signatories to The Hague Convention, an international compact that helps custodial parents recover children who are abducted and held in foreign countries. A valuable resource, a practitioner's guide   to litigating Hague Convention cases,  has been created and is made available to the public and to practicing attorneys by the International Missing Children’s Division of the National Center for Missing & Exploited Children. The manual, “Litigating International Child Abduction Cases Under the Hague Convention,” was prepared by the law firm of Kilpatrick Stockton LLP and is a valuable resource for all attorneys litigating Hague Convention cases in U.S. federal or state courts.

The manual provides guidelines and relevant case law relating to litigating a Hague Convention case for the return of or access to a child. Other valuable Hague Convention resources are available online at  www.missingkids.com.

Thanks to Diana Skaggs of Divorce Law Journal for bringing this to our attention.

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Parental Kidnapping: How the left-behind parent can recover the child

Several lawyers asked today about what was the most expedient way to handle getting a move-away parent to bring a child back to Michigan to the "left-behind" parent. Michigan, like most States, has enacted the Uniform Child Custody Jurisdiction and Enforcement Act. [UCCJEA]. This uniform law says that initial child custody determinations should be made by the child's "Home State," if there is one.

‘Home state’ means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child-custody proceeding. * * *  A period of temporary absence of a parent or person acting as a parent is included as part of the period.” MCL 722.1102(g)

Parental Kidnapping: Useful Resources for the Left-Behind Parent

There are many good sources of information available on the Internet to help custodial parents deal with abduction of children by the non-custodial parent. In Michigan, the parental kidnapping statute states that if a parent keeps the child from the other parent more than 24 hours after the child was supposed to be returned, then that is parental kidnapping, which is a felony bearing up to 1 year and a day sentence in prison.

See the following resources that will help families and their lawyers understand the laws and resources available to them:

When Your Child is Missing: A Family Survival Guide: Published by the Office of Juvenile Justice and Delinquency Prevention, this guide was written by parents and family members who have experienced the disappearance of a child. It contains their combined advice concerning what you can expect when your child is missing, what you can do, and where you can go for help. It explains the role that various agencies and organizations play in the search for your missing child and discusses some of the important issues that you and your family need to consider.   

The statute does not require that a parent be formally served with a custody order before that parent can be charged with parental kidnapping. People v McBride, 204 Mich App 678, (1994). It only requires that a valid court order giving the party from whom custody or parenting time is in existence when the child is taken. In People v Reynolds, 171 Mich App 349, (1988), there was no custody or parenting time order with regard to the child, so the father could not be charged under the statute for taking the child from the maternal grandfather, who was baby-sitting. The father could, however, be charged for taking the child from the baby-sitter, who had lawful charge of the child at the time of the taking.

Visit Jeanne Hannah's website for more information

Technorati tags: parental abduction, parental kidnapping

Resources for International Parental Kidnapping

If your child is kidnapped, your efforts to recover the child should involve planning and response by a wide variety of people in a team effort. This team usually comprises members of many different agencies. The primary organizations or professionals needed in the recovery and reunification of missing children with their parent or parents will include law enforcement (including, in some cases, the FBI), family and dependency court personnel, child protective agencies, other social agencies, including mental health professionals, and victim-witness advocates.

Recovery and Reunification of Missing Children: A Team Approach is a helpful book published by the National Center for Missing & Exploited Children and Missing and Exploited Children Comprehensive Action Program. It is available online without charge.

Parental kidnapping of a child is abducted leaves the parent who has been left behind faces seemingly overwhelming problems. These abductions leave parents feeling helpless, and create emotional, legal, and financial difficulties more difficult than a parent will ever encounter again. This is particularly true for parents whose children are taken to or retained in foreign countries.

International abductions pose particularly difficult problems; thus, a swift and informed response is often difficult. Parents face difficulties when the language of the foreign country is unfamiliar. Worse, the laws can be vastly different from the laws in the United States. Great distances and an inability to communicate with the child or children can cause enormous psychological problems and can frustrate recovery efforts. This is particularly true if the country is not a signator to the Hague Convention.

Despite the obstacles presented by international abductions, however, it is critical that parents whose child or children are victims of international parental kidnapping remain hopeful and optimistic. Although the situation presents potentially dire consequences, it may not be irrevocable. Organizing an effective recovery program can best be accomplished when left-behind family members respond to the kidnapping in a hopeful, informed, and steadfast manner.

The Office of Juvenile Justice and Delinquency Prevention (OJJDP), under the auspices of the Department of Justice, has developed a guidebook as a resource for families of children who have been abducted to a foreign country.

The parents of abducted children can use this guidebook as a valuable
resource. It offers explanations and realistic evaluations of civil and criminal remedies available to the left-behind parent. It also explains applicable laws, identifies public and private resources available to help, and describes strategies to help left-behind parents reestablish meaningful contact with them in another country and/or recover their children.

A Family Resource Guide on International Parental Kidnapping is available without charge on the Internet.
http://www.ncjrs.org/pdffiles1/ojjdp/190448.pdf

To contact Jeanne Hannah with your questions or to view her Family Law website, click here.

Technorati tags: parental kidnapping, abduction, family abduction