By Jeremy D. Morley
The Matrimonial Strategist
How can one parent stop the other parent from taking a child to visit a dangerous country? How can a parent make sure that a child will be returned if the other parent takes the child to visit his or her native country? Many international parents are becoming increasingly concerned about the answers to these questions.
Here are Ten Key Tips for Parents that have been developed as a result of handling these issues on a regular basis in collaboration with local family lawyers across the country.
1. Collect hard evidence of the dangers that the proposed visitation presents.
Any parent who opposes overseas visitation, especially to a parent’s country of origin or current domicile, has a heavy burden of proof. Do not underestimate what you need to do to prove your case. You must go to court with very strong evidence already lined up. You have to be fully prepared to show that there is a very real risk — not simply a suspicion or a fear — that your child will not be returned.
2. Collect evidence to show the court that there is a real likelihood that the other parent will not return the child.
So-called “red flags” include the other parent having:
o Previously abducted or threatened to abduct the child.
o Taken steps to move toward living in the other country.
o Citizenship in the other country and strong emotional or cultural ties to it.
o Friends or family living in the other country.
o No strong ties to the child’s home state.
o Financial ties to the other country.
o No financial reason to return the child.
o A criminal record.
o Jealousy or hatred toward the other parent.
o A history of instability.
3. Demonstrate respect for the rights of the other parent.
While the language of state laws varies — some referring only to the best interests of the child with others including a presumption of joint parenting — American courts invariably encourage and impose shared parenting in one form or another. A parent who inappropriately hinders or obstructs the other parent’s involvement in the child’s life will not be viewed favorably.
4. Do not rely on a country’s poor reputation for corruption or danger.
Do not take it for granted that a court will know that a particular country has an ineffective legal system or that the country is a dangerous place for Westerners. You must present evidence to the court — whether through witnesses or through documents — that will allow the court to make a reasoned conclusion based on real and convincing evidence that the requested visitation should be denied.
5. Be calm, not hysterical.
You may be panic-stricken at the thought of your precious one being taken to another country, but you should not come across as over-the-top. You should be prepared to explain calmly to the court the reasons for your grave concern.
6. You will usually need expert testimony.
Parents who know personally just how dangerous a certain country is often believe that they should simply tell the court their stories about the bad things that have happened to people there. This type of evidence is usually worthless and probably inadmissible. You will typically need to retain well-qualified independent experts who can testify as to their personal knowledge of the issues. Some examples:
o A mother who had moved here from South America was desperate to prevent the father from having any visitation in that country, fearing that the child would be kidnapped. The testimony of law enforcement experts from that South American country was secured to prove the grave dangers that the child would face there.
o A father from an Asian country wanted to take the child from the U.S. to visit his other child in his native country. An affidavit of an expert in international child abduction with specific knowledge of the danger of abduction in that country and the inability of the legal system to provide any protection to the child was submitted.
o A mother wished to take a child to visit her family in Eastern Europe. An expert’s affidavit, establishing the failure of that country to comply with its obligations under the Hague Convention on International Child Abduction, was submitted.
7. Do not take comfort in the mere fact that the child is being taken to a country that is a party to the Hague Convention.
The Convention is a strong international treaty, but countries vary dramatically in their enforcement of it. Countries such as the UK, Australia and New Zealand typically return children promptly and efficiently, but some act much more slowly (Germany and France, for example) and others act at a glacial pace or not at all (e.g., Mexico, Colombia and Austria).
8. Review with your lawyer whether any conditions can be imposed that will ensure that your child will be returned.
The possibility of using conditions is very much a double-edged sword. Many conditions sound good, but they are worth little or nothing in practice. In fact, they can be dangerous because judges may think that by imposing conditions, they have provided real safeguards when, in fact, they have merely facilitated international child kidnapping. Some typical restrictions:
o Requiring that a mirror order be secured from the overseas country. This means that the U.S. court requires the other parent to secure an order from a court in the country to which the child is to be taken that mirrors the American court order. This is often valuable, but it depends on the country in question. A Western European country will typically enforce such an order; many Asian countries may not do so.
o Allowing the custodial parent to join the child for the overseas visitation. This is often helpful. However, the ability of the custodial parent to take the child back to the U.S. will depend on the country.
o Requiring that the parent who takes a child overseas post a substantial bond. This can be extremely useful if the bond is large enough to act as a real deterrent
9. Do not rely on the other parent’s promises.
They are basically worthless if he or she keeps the child overseas. (However, if one parent puts a promise to return in writing, it may be of some value in future litigation).
10. Do not leave it to the last minute to seek legal protection.
While the courts can usually make emergency orders, it is far better to prepare and submit a case well in advance of the scheduled departure date. In addition, a judge will be less likely to prevent a trip overseas that has been scheduled for a long time.