ENJOINING POTENTIAL INTERNATIONAL CHILD ABDUCTION
Jeremy D. Morley
New York Family Law Monthly
The Sean Goldman parental abduction case has been making the news of late, with articles appearing in The New York Times and other publications, and television news stories running on national and international networks. His story is shining a light once more on the perils of international parental child abduction.
Sean Goldman's Brazilian mother took him, at the age of 4, from the New Jersey home they shared with Sean's father for an ostensible family visit to Brazil. Once in that country, however, Sean's mother informed her husband that neither she nor Sean would return to New Jersey. So began years of legal wrangling over where Sean should live, and with whom. Even after Sean's mother died, her family refused to return the child to his father. Brazil's courts have come under criticism for their handling of the case, including by both U.S. houses of Congress, but Sean still remains in Brazil, in legal limbo.
Like many countries, Brazil is a party to the Hague Convention on the Civil Aspects of International Child Abduction. Under the Convention, children who have been removed from their country of habitual residence without the permission of a parent with custodial rights are required to be returned promptly to their home country, unless one of the very limited defenses is established. Once they are returned home, any disputed custody matters may be litigated there.
Once a child has been abducted to another country -- sometimes even to a country that is a party to the Hague Convention -- the parent left behind in the United States may lose all control over the child's life. Local courts in many foreign countries do not always comply with the Hague Convention's dictates, and left-behind parents are often unable to recover their children. And many countries are not parties to the Convention.
With these facts in mind, what can parents do when they suspect that their spouse, ex-spouse or significant other might take their children to another country and keep them there without permission? And how can their attorneys help them to deal with that risk?
TOP TIPS FOR ATTORNEYS
I testified recently in New York as an expert witness on international child abduction prevention and recovery in a case in which one parent sought to prevent the other parent from taking their child to visit that parent's country of origin. The experience led me to several conclusions about this area of litigation.
Don't Fan the Flames
It is generally a disservice to a client and to the judicial system to exacerbate a client's nervousness about potential child abduction if the country to which the child is to be taken on a visit is a trustworthy and compliant party to the Hague Convention. This assumes that the court in the child's home state and habitual residence has issued a well-drafted custody order that gives clear custodial rights to the potentially left-behind parent. Situations in which serious consideration should be given to a child's visit even to a "safe" country should include those in which a defense under the Convention might apply. For instance, if the child is old and mature enough that a court in the foreign country might accept potential testimony by the child that he or she wants to stay in that country, or if there is a serious possibility that a "grave risk of harm to the child" defense might succeed if raised as a defense to a Hague case in the foreign country.
Don't Ignore the Dangers
On the other hand, lawyers should not hesitate to seek protection for a client in any appropriate case and should not brush aside abduction worries (as so many clients have reported to me). The appropriateness of seeking protection depends massively on the country to which the child is to be taken, or may be taken, and on the degree of risk of a potential attempt to abduct the child. If a child is to be taken to England, Australia or Sweden, for example, whose courts generally enforce Hague claims expeditiously and appropriately, it would be silly to create a huge fuss in most -- but not all -- cases. But if a child is to be taken to most Middle East or Asian countries, which have not signed the Hague Convention and do not promptly recognize and enforce foreign custody decrees, the risk is entirely different.
Be Aware of Travel Policies
There is much misunderstanding about international travel on the part of lawyers and judges. Many people (and even some judges) think that the United States has exit controls. In fact, there are none. A child may be taken out of this country by one parent, or even by a third party, without any official check of documentation, except that the airlines will ensure that the child has papers sufficient to allow it to enter the foreign country. Likewise, many people mistakenly assume that, if the courts hold the parties' and the child's passports, that will guarantee that the child cannot be removed. In fact, many consulates will issue same-day replacement passports or other travel authority to their own nationals without the knowledge or consent of the other parent.
Tell a Coherent Story
The proper "framing" of a case in which a parent seeks to prevent the other parent from taking their child out of the country is critical. Is this a case of a parent genuinely attempting to prevent a dangerous, unstable or unsettled parent from abducting a child to a foreign country? Or is it a case of a vindictive, obsessed or hyper-protective parent seeking to prevent a child from developing a relationship with the other parent's family and culture? How the judge views the case from the very outset is most likely to play a major factor in determining the ultimate outcome. Therefore it is most important to frame the argument correctly from day one and to maintain the focus on that context throughout the case. It is equally important to make sure that the evidence matches the description; wild claims of potential international child abduction that are not supported by hard evidence are generally counter-productive.
Use Risk Assessment Tools with Care
There are several purportedly scientific analyses of the factors that may indicate that a particular parent presents a significant risk of being an international child abductor. The problem with such analyses is that they tend to be "laundry lists" with a veneer of science and it is usually absurd to focus on the listed factors in isolation of their actual context. For example, the mere fact that a parent's country of origin is in the country to which a child is to be taken for a visit should hardly be a risk factor in and of itself. Likewise, the fact that a parent has another country's passport does not, in and of itself, create a risk. On the other hand, if a parent is proven to have threatened to take the child to his country of origin and to keep the child there, these facts suddenly take on a greater significance. Perhaps an overwhelming significance.
Understand the Tendency Toward Judicial Restraint
Applications for injunctions to prevent international child abduction place judges in a delicate position. Judicial reluctance to handle such cases is based in part on a legitimate distaste for judging other countries' legal systems. Just as U.S. judges would not want other countries to judge their performance, so it is that U.S. judges do not enjoy making judgments about other systems, especially if those opinions are in any way negative. However, it is absolutely essential in many cases that judges do take on such a responsibility and it is the duty of lawyers in serious cases to push them to do so.
Know Your Foreign State
It is all too easy for judges to presume that foreign courts apply their own laws in the way they are written. Merely because a country has signed the Hague Convention does not mean that it complies with its obligations under that treaty. In too many cases, courts glibly assume that the fact that a country is a party to the Convention means that the courts in that country act in conformity with the provisions of the treaty, including those provisions that preclude the courts from considering the best interests of the child, whether directly or in the guise of one of the narrow defenses, or that require that returns be ordered expeditiously and effectively. Some countries' courts are more "rogue" than others.
Likewise, just because the U.S. State Department has not listed a country as being non compliant in its annual reports to Congress does not mean that the country in question in your case is indeed compliant with the treaty obligations. In its most recent report, the 2008 Compliance Report for the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the State Department listed only one country -- Honduras -- as being "not compliant." Any international family lawyer handling Hague cases knows that this is simply absurd. (What about Mexico!?). The State Department did list nine countries, including Mexico, as "demonstrating patterns of noncompliance." Obviously, the State Department has diplomatic considerations that drastically limit its ability to condemn other countries. In addition, it does not necessarily have its "finger on the pulse" of foreign courts' treatment of Hague cases in a way that practitioners in the field actually have.
Educate the Court
It is often critical to educate a judge as to the real performance of a particular country in handling Hague cases. Lawyers can help the courts in these cases by providing them with useful and admissible testimony as to such factors as: 1) the risk of abduction; 2) the likelihood of difficulties in securing the child's return from the specific country; and 3) the appropriate measures that the court might take to limit the risk. Expert testimony can often be most helpful if it is focused on the true issues in your case, and if it is presented by genuinely knowledgeable and qualified witnesses. Such testimony needs to be buttressed, wherever possible, by hard data. Such data might include statistics concerning the treatment of Hague applications in the specific country, the length of time that returns from that country take, and so on. In cases concerning non-Hague countries -- and often in cases concerning Hague Convention countries there should be evidence of the actual judicial practices of the courts in the country to which the child might be taken. Do the courts there recognize foreign custody orders? Do they invariably favor their own nationals when making custody decisions? Do they return abducted children? It is not good enough to make allegations about foreign countries' courts without submitting admissible evidence.
Just because it is difficult to collect such evidence does not mean that it should not be done. By way of example, in a recent case concerning a similar issue, that of international relocation, the Supreme Court of New Jersey ordered that a child should be relocated to Japan over the strenuous opposition of an American father. Sadly, the record before the appeals court did not include any significant evidence that Japan would ignore the New Jersey orders concerning access by the father and that the Japanese legal system would provide no meaningful assistance to a non-Japanese father seeking access to his child. This is unfortunate, as evidence on Japan's treatment of non-Japanese parents is readily available. See, e.g., my Web site, http:// www.internationaldivorce. com/d-japan.htm.
A balanced approach is required when dealing with potential child abduction issues because these cases veer too often to the extremes. With a neglectful "head in the sand" approach, perhaps the potentially leftbehind parent perceives no danger and does nothing to alleviate it. Or that parent's attorney or the judge handling the case takes the simplistic position that there is nothing to worry about or that the foreign court will do what its law says it should do. In the cases of travel to countries that are havens for international parental child abduction (Japan, Russia, and very many others) such an approach is extremely foolish. The other extreme is that of hysterical opposition to all travel, since "who knows what may happen?" This could lead to children never leaving the home, when such trips could be beneficial for them. Many judges have recognized the importance for children of international travel especially to a parent's country of origin.
What is needed, instead, is balanced reason. Lawyers reviewing cases in which there is a danger of a parental abduction need to take them seriously and responsibly. If a case is initiated in this area, it should be based on hard evidence, with expert testimony being presented as to the nature and extent of the risk. And it is absolutely critical that judges evaluate the evidence fairly. They need to make tough judgments concerning difficult but grave issues, even if that means rendering opinions that are negative about the legal systems in other countries.