by Jeremy D. Morley
We handle very many cases concerning the prevention of threatened or potential international child abduction. We also handle many cases concerning efforts in appropriate cases to authorize international child visitation and international child relocation.
We frequently appear as an expert witness in such matters. Mr. Morley has submitted such evidence in courts throughout the United States as well as in Canada, England, and Australia.
Most international child abduction is committed by a family member, usually by a parent. It is escalating as a result of the increased mobility of people around the world and the concomitant increase in international relationships. When those relationships end or teeter, parents often want to "go home" to their country of origin and take their children with them.
Another typical scenario is that a parent whose relationship with the other parent has ended may want to move to his or her new partner's country of origin.
The best way to handle international child abduction is to prevent it before it occurs. That is obviously far easier said than done.
Counsel need to advise worried parents as to the precautions they might take short of litigation to reduce the likelihood of an abduction, while making it clear that a determined abductor may evade whatever steps are taken. Counsel also need to be prepared, sometimes at the last minute, to seek emergency assistance from courts and from law enforcement authorities. Looking for answers at such a time is just not good enough.
Much of the necessary prevention requires the imposition of restrictions on the other parent's freedom to be with a child, which raises issues, sometimes quite delicate, of the respective rights of parents and also the rights of a child.
Courts are often unwilling to interfere with a parent's right to travel with a child, particularly when it is to the parent's country of origin. They are also often unwilling to undertake a detailed and careful examination and weighing of the nature and extent of the risk in any particular case versus the extent of the benefit to the child.
Cases in which courts are asked to enjoin or limit international visitation typically require a court to consider the extent to which a foreign legal system is likely to provide an abducted child with the necessary protection and to effectively and promptly order the child's return to the child's habitual residence. Judges are generally most reluctant to evaluate other countries' legal systems and yet such evaluations are often essential to a fair determination of the issue.
A critical element of an attorney's role in such a case is to effectively secure the attention of a court to the existence of real danger. Indeed, all too often lawyers discount their own client's fears as being overblown or paranoid and if they present a request for a restraining order to a judge they do so weakly, without adequate preparation and ineffectively. How can a lawyer who is not personally convinced of the danger possibly convince a skeptical judge?
A full chapter in my book, International Family Law Practice, addresses the myriad issues that arise in international child abduction prevention cases. It discusses ways to prevent child abduction, both judicially and non-judicially and advises counsel on how to successfully make an application for an order enjoining foreign visitation. It also provides advice to parents who legitimately want to take their child to another country, and to their counsel. The chapter also discusses the appropriate provisions of court orders designed to prevent child abduction. Finally, the Uniform Child Abduction Prevention Act is attached as an appendix.