Last week, we wrote a post with some tips about child custody and international travel. This week, we will look a little more closely at the provisions in the Family Code that help the Court prevent international child abductions. Although the relevant provisions apply to domestic as well as international child abductions, we will be focusing on the international aspects in this post. While domestic child abduction is still a concern worth writing about, it is much more difficult to undo the harmful effects of an international abduction.
Before a Court can make orders intended to prevent the risk of abduction, the Court first must find that there is such a risk.
Family Code section 3048(b)(1) describes how the Court should determine if there is a risk of abduction:
(b)(1) In cases in which the court becomes aware of facts which may indicate that there is a risk of abduction of a child, the court shall, either on its own motion or at the request of a party, determine whether measures are needed to prevent the abduction of the child by one parent. To make that determination, the court shall consider the risk of abduction of the child, obstacles to location, recovery, and return if the child is abducted, and potential harm to the child if he or she is abducted. To determine whether there is a risk of abduction, the court shall consider the following factors:
(A) Whether a party has previously taken, enticed away, kept, withheld, or concealed a child in violation of the right of custody or of visitation of a person.
(B) Whether a party has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of the right of custody or of visitation of a person.
(C) Whether a party lacks strong ties to this state.
(D) Whether a party has strong familial, emotional, or cultural ties to another state or country, including foreign citizenship. This factor shall be considered only if evidence exists in support of another factor specified in this section.
(E) Whether a party has no financial reason to stay in this state, including whether the party is unemployed, is able to work anywhere, or is financially independent.
(F) Whether a party has engaged in planning activities that would facilitate the removal of a child from the state, including quitting a job, selling his or her primary residence, terminating a lease, closing a bank account, liquidating other assets, hiding or destroying documents, applying for a passport, applying to obtain a birth certificate or school or medical records, or purchasing airplane or other travel tickets, with consideration given to whether a party is carrying out a safety plan to flee from domestic violence.
(G) Whether a party has a history of a lack of parental cooperation or child abuse, or there is substantiated evidence that a party has perpetrated domestic violence.
(H) Whether a party has a criminal record.
Once the Court finds that there is a risk of abduction, it must consider enacting one or more of the measures set forth in Family Code section 3048(b)(2) to prevent the abduction of the child (with our comments in red):
(A) Ordering supervised visitation. This is a drastic measure and probably won’t be ordered unless there is a tangible threat of abduction and the potential destination country is not a member of the Hague Convention on the Civil Aspects of Child Abduction.
(B) Requiring a parent to post a bond in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to offset the cost of recovery of the child in the event there is an abduction. This is a popular tool used by the Courts but it is not without its flaws. First of all, case law has limited the Courts to order the posting of bonds within the means of the parent (See Marriage of Condon and J.M. v. G.H.). While this makes sense, it also limits the effectiveness of the bond. Secondly, and more importantly, what good is a bond if it can’t bring back the child? A bond is only helpful to the extent it can fund litigation that could return the child. If there is a risk of abduction to a country like Brazil or Iran, all the legal fees in the world are not going to convince a court in those countries to send a child back to the United States.
(C) Restricting the right of the custodial or noncustodial parent to remove the child from the county, the state, or the country. This sounds great, but again, it’s important to note the practical application of these restrictions. If the risk of abduction is to a country that can’t return the child, these are just words on a piece of paper unless other preventative measures back them up.
(D) Restricting the right of the custodial parent to relocate with the child, unless the custodial parent provides advance notice to, and obtains the written agreement of, the noncustodial parent, or obtains the approval of the court, before relocating with the child. This is similar to (C).
(E) Requiring the surrender of passports and other travel documents. Now we’re talking. If the child’s passports have been surrendered, that child will not be permitted to get on a plane to another country. Nevertheless, an order requiring the surrender of passports is not without its flaws. A parent seeking to abduct a child to Mexico will not be inhibited by this type of order because a passport is not required for entry into Mexico. A passport is also not required for entry into Canada, but Canada is a reliable signatory of the Hague Convention on the Civil Aspects of Child Abduction. Mexico is a signatory but is not a reliable one: Mexico is actually the number one destination for international child abductions from the United States. It must be noted that an order requiring the surrender of a passport is only effective if the issuance of a replacement passport can be prevented, which is discussed in the next section.
(F) Prohibiting a parent from applying for a new or replacement passport for the child. (E) and (F) combined can be a powerful way to prevent abduction. However, as we’ve mentioned before, these types of orders are not worth the paper they are printed on unless they can be enforced. Luckily, the United States Department of State has an excellent and easily accessible system for parents to track the issuance of passports for their children. This program is called the Children’s Passport Issuance Alert Program and a parent can sign up for it on the State Department website. Once signed up, this program will alert a parent if a passport application has been submitted to the State Department and allow that parent to block the application. The State Department will also let a parent know if there are any existing passports.
(G) Requiring a parent to notify a relevant foreign consulate or embassy of passport restrictions and to provide the court with proof of that notification. While probably not as useful as (E) and (F), this could add another layer of protection. This could be helpful where a parent has violated the order to surrender the passport and is seeking a visa from another country’s consulate. Of course, the effectiveness of these types of orders depends on the cooperation of the foreign country.
(H) Requiring a party to register a California order in another state as a prerequisite to allowing a child to travel to that state for visits, or to obtain an order from another country containing terms identical to the custody and visitation order issued in the United States (recognizing that these orders may be modified or enforced pursuant to the laws of the other country), as a prerequisite to allowing a child to travel to that county for visits. This is only useful if the foreign country will actually allow registration and enforcement of the California order. Japan, for instance, does not provide an effective system for registration of custody orders and does not really have an effective system to enforce custody and visitation orders to begin with.
(I) Obtaining assurances that a party will return from foreign visits by requiring the traveling parent to provide the court or the other parent or guardian with any of the following:
(i) The travel itinerary of the child.
(ii) Copies of round trip airline tickets.
(iii) A list of addresses and telephone numbers where the child can be reached at all times.
(iv) An open airline ticket for the left-behind parent in case the child is not returned.
These are helpful to get an idea of where the child is (except for part iv…which is problematic because it seems to invite a parent to take matters in his or her own hands to return a child back to the United States), but will likely not help if the foreign country is not a Hague country.
(J) Including provisions in the custody order to facilitate use of the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3 (commencing with Section 3400)) and the Hague Convention on the Civil Aspects of International Child Abduction (implemented pursuant to 42 U.S.C. Sec. 11601 et seq.), such as identifying California as the home state of the child or otherwise defining the basis for the California court’s exercise of jurisdiction under Part 3 (commencing with Section 3400), identifying the United States as the country of habitual residence of the child pursuant to the Hague Convention, defining custody rights pursuant to the Hague Convention, obtaining the express agreement of the parents that the United States is the country of habitual residence of the child, or that California or the United States is the most appropriate forum for addressing custody and visitation orders.
For purposes of international child abduction to Hague countries, it is important that the Court find that the United States is the habitual residence of the child and that each parent has custody rights. The reason for this is very simple. The Hague Convention on the Civil Aspects of Child Abduction only authorizes a return of a child to a left-behind parent in the United States if the child was habitually resident in the United States immediately before a breach of custody rights. If the order doesn’t specify that the left-behind parent has custody rights, that parent might have difficulty returning the child to the United States.
(K) Authorizing the assistance of law enforcement.
This is probably not helpful in international abductions.
We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California’s child custody laws, we encourage you to contact us as soon as possible.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.