Skip to main content

Your Tewksbury Today

International and Domestic Parental Abduction: What YOU Need to Know

Jan 20, 2016 09:37AM ● By Ellen Wright
Getting divorced is bad enough, but what if the other parent took your child to another country and refused return to Massachusetts?  It is not uncommon for one parent to be fearful that the other parent might attempt to circumvent the court and remove the child from the state or country without consent, or refuse to return the child following routine parenting time.  The following is a short summary of the laws that the government has put in place that providePROTECTION from the threat of parental abduction and kidnapping.

The Hague Abduction Convention (or Hague Convention) is an international multilateral treaty that governs this type of  international kidnapping.  Although not all countries ascribe to the Hague Convention, there are serious differences between dealing with the Hague Convention in a country that recognizes it and takesSTEPS to follow it, and one that is a signatory but does not comply with its terms.

  These types of cases can be extremely complex due to the bureuacratic maze of red tape involved.  There are very specific rules and requirements that do not exist in an ordinary family court case.  In addition to extra requirements, a petition must be filed with the State Department which can be time consuming. A litigiant needs to be prepared to obtain a set of twoLAWYERS, as one will be needed as a lawyer in the country of the children’s “habitual residence” as well as one in the country to which the children were taken. There often are language barriers as well, so the case can become delayed if a lawyer who is fluent in English in the country to which the children were taken  cannot be readily obtained.  

Premised on the principle that child abduction is not in the best interest of a child, the U.S. government responded to this threat of domestic parental abduction by instituting the Uniform Child Abduction Prevention Act (UCAPA); however, this federal statute is only enforceable within the United States and cannot be invoked to return a child once the child has left the country.  This actADDRESSES the special problems involved with international child abduction by including several risk factors specifically related to international abduction. In particular, the act requires courts to consider whether the party is likely to:

1,  take a child to a country that isn’t a party to the Hague Convention or to a country that places the child in danger,  

2.  has laws that would restrictACCESS to the child,  

3.  take the child to a country that sponsors terrorism, or

4.  is engaged in anACTIVE military action or war. 

The best way to deal with a potential international or domestic parental kidnapping is to prevent it.  Upon a finding that there is a liklihood of abduction, a court can, at its discretion:

 

1.  order limited visitation and custody of the child,  

2.  prohibit a parent fromAPPLYING FOR a passport for the child,  

3.  require a parent to take anEDUCATION COURSE on the potential harmful effects of child abduction,

4.  require the parent to post a bond before leaving the country with the child, or

5.  prohibit the child from leaving the country until he or she has reached the age of emancipation.

These measures may reduce the chances of abduction, but cannot guarantee that your child willCOMPLETELY safe.  In many if not most cases, the would be abductor is not mentally stable and  cannot be reasoned with or even detered by court orders.  It is important to realize that court-imposed remedies may not prevent a kidnapping. 

If you believe that your child may be in danger of being abducted or kidnapped by the other parent, you should seek relief in court right away.  Be prepared for the hearing with strong, credible evidence that shows the immediate threat of harm to your child.  The long time delays that can result in a Hague Convention case can make even the most stoic parent-victims  of this type of kidnapping emotional wrecks if their children have been abducted. A court will look at whether there were previous threats of abduction or related attempts, and if there is family history of abuse.  May you never be confronted with the complexities of a domestic or international parental abduction case.  If you are, get the bestCOUNSEL you can afford as soon as possible.

Follow us on Facebook at https://www.facebook.com/yourtewksburytoday/ Follow us on Twitter at @TewksburyToday Follow us on Instagram at YourTewksburyToday