Situations in which a parent, particularly a citizen of another country, wishes to remove a child from the United States should be monitored extremely carefully. The fact is that, if a parent leaves the US with a child and refuses to bring her back, it is extremely difficult and expensive to secure the child’s return. The case of Sean Goldman, a child whose mother took him to Brazil, then obtained a divorce from the American father and refused to return the child, dragged on for five years. Although this case made headlines, it is more common than might be expected. The US Department of State reported over 1,000 abduction cases in 2010. Although there is an international law governing child abduction (Hague Convention on the Civil Aspects of International Child Abduction), only 68 countries are signatories to this law, and few are in full compliance. Failure to comply is not limited to rogue countries; the 2011 report indicated instances in which countries such as France, Australia, and Switzerland also failed to comply with valid child custody orders.
The report can be found at http://travel.state.gov/pdf/2011HagueComplianceReport.pdf. It is extraordinarily difficult to obtain the return of a child from Hague Convention countries; if a child is abducted to a non-Hague country, return becomes infinitely harder. The best option is to anticipate and try to prevent an abduction by obtaining clear, specific, and enforceable orders from the US court that comply with Hague Convention requirements.
If abduction to another country is a possibility, the parent should obtain an order stating the US as the child’s habitual residence, limiting the other parent’s access to the child’s passport, or preventing the passport application altogether, prohibiting certain travel, requiring that the other parent post bond, clearly stating custodial responsibility, and other vital provisions. This should be done in the original divorce or paternity order, since the order provides means of preventing the abduction as well as responding to it. Although there are generally no restrictions on leaving the country, even with children, there are ways to notify federal and local governments in advance of abduction concerns. Parents should keep in mind that even if there is a concern regarding possible abduction, the judge may still permit the other parent to leave the country with the child. For example, in Long v. Ardestani, 241 Wis. 2d 498 (2001), the Wisconsin Court of Appeals permitted a parent to travel to Iran (a non-Hague country) despite the other parent’s fears that the child would not be returned.
Not every parent who is a citizen of another country would intend to abduct a child. However, the importance of addressing this issue cannot be overstated. Even with proper language in a US court order, there is no guarantee that a child will not be removed from the US. Indeed, parents generally have a right to do so for shorter periods. However, the presence well-written and compliant orders can be of tremendous assistance if preventing an abduction. Likewise, if an abduction actually occurs, the US orders are vital to support international efforts to return the child to the US. I strongly encourage parents with issues of this nature to contact me for a review of their court order, or to establish such an order.
- Spring Summit 2022: Celebrating Friendship in the Lone Star State - June 15, 2022
- What Makes a Will or Trust Invalid - June 2, 2022
- How Estate Planning Documents Help Prevent Elder Abuse - May 26, 2022