Background
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.
For more resources dealing with parental abduction see:
http://parental-kidnapping.com
The UCCJEA section of my website
Http://missingkids.com
Does anyone have any information concerning HB 4925? Although it is possible to file a motion setting forth the risk factors and personality profiles, the lack of knowledge concerning this issue and the lack of controlling legal precedent on this issue in Michigan creates a great deal of uncertainty.
There doesn't appear to be any significant opposition to this bill, so it's not clear why it died in committee. This seems like common sense legislation that addresses real problems.
Posted by: Jeff Kapteyn | 04/11/2009 at 09:48 PM
Hello Jeff,
We need to get moving on this legislation. Given the economic times, it is surely needed. I have filed a motion asking for the kinds of protection the Uniform Act would provide, and I found the circuit court judge generally receptive. Just use the guidelines delineated above. Also, contact your legislator.
Jeanne
Posted by: Jeanne M Hannah | 04/11/2009 at 10:33 PM
I live in Michigan and my wife is from Cuba, we have a 2 year old daughter together. She is talking about getting a divorce and has in the past said she was going back to Cuba to live with her daughter. Now, if she gets legal custody does that mean that she can travel home to visit and I cannot do anything to stop her? My fear is that she would go there and stay and I would not be able to recover my daughter.
Posted by: "John" | 04/15/2009 at 02:44 AM
Hello John,
I recently communicated with one of my legislators. Although the Uniform Child Abduction Prevention Act that was earlier before Michigan's legislature has died in committee, that doesn't mean that you cannot request the Court to enter an order incorporating those protections that this law would have required.
In your case, since Cuba is not a signatory to the Hague Convention, you and your child face a high risk of parental kidnapping. The U.S. State Department would not be able to assist if your child were taken to Cuba and retained. As a preliminary matter, you should promptly enroll your child in the Passport Alert Program.
Judges have a great deal of autonomy when it comes to conditions that may be imposed upon the exercise of parenting time. Therefore, because of the high risk of parental kidnapping in your case, I recommend that you seek such an order. Contact me for more information if necessary.
Posted by: Jeanne M Hannah | 04/15/2009 at 08:04 AM
Jeanne,
This law should not pass. See the New Jersey Law Commissions final report dated Dec 2009 for some good reasons.
You refer to 'international abductions' in your article. While that was the committees original scope, they expanded the scope to include 'all' abductions (Aug 04 if I remember) = including interstate and instate.
Instate abductions are currently handled directly by state law and family courts.
Interstate abductions are currently covered by the Uniform Child Custody Jurisdiction Enforcement Act.
The expansion of the bill from the international scope to the all encompassing scope was poorly done.
The provision in the bill to allow a parent (custodial or noncustodial) to request a dynamic entry of the other parents house to take the kids through an ex-parte court order is a power no persons ex should be empowered with. This provision will prove harmful to the children in the extreme.
The alleged 'list' of abduction factors, given the prelevance of divorce in this state, will turn this country into a police state in no time. Especially as only ONE factor from the list has to be met.
Ordinary parenting acts such as 1) picking up medical records; 2) picking up school records; and 3) picking up birth certificates have no place on this list. These are acts that all good parents must do.
Ordinary living acts such as 1) quitting a job (or being fired); 2) selling a house; 3) terminating a lease; 4) closing a bank account; 5) or other unusual financial activity are all acts that ordinary people engage in every day. They do not indicate a flight risk. They have no place on a list as primary act.
The breath of the 'travel plan' limitations are inappropriate. A person falls afoul of this law if they make any travel plans out of state. It does not matter if the plans are for themselves, their children, or any other family member. Is booking tickets to the Super Bowl or Disney land now an act that can allow the courts to consider the person a 'potential felon'?
And what about the ordinary family/life events listed? What does a parent have to do to not meet these requirements?
How many family members does a person need living in the state to have 'strong family connections to the state? One, Three, Fifty?
How many family members living in another state does a person have to have to meet the 'strong family connections to another state? One, Three, Fifty?
Just what exactly is it a person has to do to have 'strong emotional connections to another state'?
or for the converse part of the law, to 'lack strong emotional connections to their current state'?
Similary, the law allows a person to be accused because they have:
- strong cultural ties to another state.
- strong financial ties to another state.
- lack of strong cultural ties to their current state.
- lack of strong financial ties to their current state.
Just who's and what culture are we talking about?
Just how much money (or lack thereof) are we talking about?
Please reconsider your support of this unconstitutional, draconian legislation
Posted by: Nicholas James | 01/11/2010 at 01:30 AM
Nicholas,
The UCCJEA already provides for a ex parte warrant to be issued that allows law enforcement to have access to private property to recover taken children. If exigent circumstances exist, law enforcement can even go in at night. I've seen it work countless times to recover children whose taking parent had earlier lied to law enforcement, saying that the children were not there.
I've not read anything anywhere about fears that this law is overbroad if applied to domestic cases. Can you send me some references to articles criticizing it?
Posted by: Jeanne M Hannah | 01/11/2010 at 09:31 AM