When should a court take steps to prevent possible international child abduction by a foreign national parent?
This issue is critical to many parents but many courts -- and even many family law lawyers -- do not give the issue the serious consideration that it must be given.
The consequences of international parental child abduction are frequently so severe that when a parent raises concerns there is an obligation to consider them long and hard. The challenge for judges is that the evidence that is proffered by worried parents is invariably speculative.
To require a parent who wishes to prevent abduction to produce clear proof of an actual threat to abduct imposes an often-impossible burden on a concerned parent.
Recently a Texas Court of Appeals was asked to consider whether a trial court had improperly found a potential risk of abduction of a child by her Bulgarian father. Karenev v.Kareneva, No. 2-06-269-CV (Tex. App.3/20/2008) (Tex. App., 2008).
Fortunately for the mother and child, Texas has been relatively forward-thinking in having enacted legislation expressly designed to prevent international child abduction (Texas Statutes Sec. 153.50 et seq).
The legislation instructs the courts that in determining whether there is a risk of the international abduction of a child by a parent of the child, “the court shall consider evidence that the parent:
(1) has taken, enticed away, kept, withheld, or concealed a child in violation of another person's right of possession of or access to the child, unless the parent presents evidence that the parent believed in good faith that the parent's conduct was necessary to avoid imminent harm to the child;
(2) has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of another person's right of possession of or access to the child;
(3) lacks financial reason to stay in the United States, including evidence that the parent is financially independent, is able to work outside of the United States, or is unemployed;
(4) has recently engaged in planning activities that could facilitate the removal of the child from the United States by the parent, including:
(A) quitting a job;
(B) selling a primary residence;
(C) terminating a lease;
(D) closing bank accounts;
(E) liquidating other assets;
(F) hiding or destroying documents;
(G) applying for a passport or visa for the parent or the child; or
(H) applying to obtain the child's birth certificate or school or medical records;
(5) has a history of domestic violence that the court is required to consider under Section 153.004; or
(6) has a criminal history or a history of violating court orders.”
If, based on the above factors, the trial court finds that there is "credible evidence of a risk of abduction of the child," the statute requires the court to also consider the following factors in order to evaluate that risk:
(1) Whether the parent has strong familial, emotional, or cultural ties to another country, particularly a country that is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction; and
(2) whether the parent lacks strong ties to the United States, regardless of whether the parent is a citizen or permanent resident of the United States.
The evidence at trial showed that the husband had once enrolled the child in school in Texas without the wife's knowledge and had listed his first ex-wife as the emergency contact; that the wife was afraid husband would kidnap the child and return to Bulgaria, where both parties were born; that the wife claimed that her husband was a millionaire in Bulgaria; that he had traveled to Bulgaria three times in the preceding two years; that the husband had a history of threats, harassment, and domestic violence and had been convicted of harassment; that he claimed income far less than his expenses; and that he had not paid child support.
There was no evidence of any actual threat to take the child to Bulgaria.
Nonetheless the appellate court concluded that “there is sufficient evidence to support the trial court's finding of a potential risk of international abduction of the child by husband, and, therefore, the trial court did not abuse its discretion.”