X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Kidnapping and concealment causes great trauma to an abducted child and the left-behind parent. Family members, usually a parent, abduct over 203,000 children (78 percent of all missing children) in the United States each year. Abducted children are cut off from family, friends and community and forced into a secretive, nomadic lifestyle. 1Parents trying to find the missing child are forced into emotionally and economically exhausting dealings with a foreign and sometimes unsympathetic legal system. Families going through custody disputes and divorce proceedings are the highest risk group for child abduction. Though often cast as an attempt to protect the child’s safety, the biggest motive for family abduction is revenge against the other parent. More than half of abducting parents have a history of violent behavior, a criminal record or a substance abuse problem. 2 While child abduction can be a crime, this column focuses on civil remedies. Many existing statutes address the question of the post-abduction return of a child. The Uniform Child Custody Jurisdiction Act, the Parental Kidnapping and Prevention Act and the Hague Convention on Civil Aspects of Child Abduction determine which state’s courts are the appropriate forum to decide child custody when a parent takes a child across jurisdictional boundaries. Recently, Texas and California have gone further and enacted statutes that seek to prevent abduction, not to determine what state is the proper judicial forum to hear a custody dispute once abduction occurs. 3The National Conference of Commissioners on Uniform Laws is circulating a discussion draft proposal for a Uniform Child Abduction Prevention Act based on these laws. 4The Texas statute applies to international child abduction; the California statute and the proposed Uniform Act apply to both international and domestic abductions on the grounds that the harm to the child is the same whether or not the parent crosses a national boundary and international abductions are a small fraction of all abductions. This column summarizes the key provisions of the Uniform Act and then briefly comments on some of the policy dilemmas it presents. As the current draft is being circulated for discussion purposes, the time is right for the New York legal community to comment on how the Uniform Act might be improved and to consider whether our legislature should enact a similar measure. 5 Abduction Risk Factors The Uniform Act is a sophisticated effort to define the factors that a court should consider in an abduction risk assessment. It then requires the court to tailor a preventive remedy appropriate to the degree of risk of abduction it perceives. Child abduction has been the subject of extensive empirical research, much of it sponsored by the Department of Justice. The Uniform Act lists factors identified by that research that courts should consider in weighing a determination that “there is a substantial risk of abduction” justifying preventive remedies. 6The more of the factors that are present, the more likely an abduction will occur, though the presence or absence of any factor does not mean an abduction is imminent or, conversely, that it will not occur. Abduction risk factors include evidence the respondent: � has abducted or threatened to abduct the child; � recently engaged in a pattern of conduct that appears to include planning activities that could facilitate removal of the child from the jurisdiction, including: � abandonment of employment; � relocation activities, such as selling a primary residence or terminating a lease; � extraordinary financial activities, such as closing bank accounts, liquidating assets or hiding or destroying documents; � applying for a passport, visa or other travel documents, purchasing travel tickets for the respondent or for the child; or seeking to obtain the child’s birth certificate or school or medical records; � a history of domestic violence or child abuse; � a history of lack of cooperation with the other parent or the court or ignoring or violating court orders; and � engaging in any other conduct the court considers relevant to the possibility of abduction. If the court finds that any of the risk factors exist, the Uniform Act instructs it to consider whether the jurisdiction to which the potential abducting parent has ties is one that makes the probability of return particularly difficult. Countries that are not signatories to the Hague Convention, or present a particularly serious danger of human rights violations or sponsor terrorism raise special concerns. Sometimes, fleeing with a child to another place is a rational response to a history of violence by a parent against the other parent or child. The Uniform Act takes this factor into account by instructing the court to consider: “any evidence that the respondent believed in good faith that the conduct was necessary to avoid imminent harm to the child or the parent or the respondent has been a victim of domestic violence.” 7 The Uniform Act requires that a hearing be held on the allegations of a petition for relief under it. The standard of proof is a “preponderance of the evidence.” 8The Uniform Act also authorizes emergency ex parte relief to prevent child abduction, “including an order of emergency sole custody and a warrant to take physical custody of the child.” 9 Preventing Abduction If the court finds a “substantial risk of abduction,” it may take any or all of the following actions: � appoint a representative for the child; � award sole custody; � require supervised visitation; � enjoin the respondent from removing the child from the lawful custodian’s care; � require the posting of a bond for the child’s return; � restrict the party’s right to leave the jurisdiction with the child without court approval; � require the respondent to receive counseling on the harmful effects to the child and criminal and civil consequences of removal; � register custody orders in other states; � order passport and travel controls; � require the respondent to obtain an identical order in a foreign court to the custody and visitation order issued in the United States. 10 The Commentary to the Uniform Act notes: Ideally, the judge would choose the least-restrictive measures to maximize opportunities for continued parental contact while minimizing the opportunities for abduction. The higher the risk of abduction, the more restrictions should be used. In addition, the most-restrictive measures are likely to [be] imposed when the threat is that the child will be taken out of the United States to a foreign jurisdiction with a different culture and legal system which does not recognize the legal rights of women and will not enforce custody orders from the United States. 11 Policy Dilemmas The Uniform Act thus requires courts to make predictions of the risk that a parent will abduct a child and frame a remedy with sensitivity to the importance of preserving parent-child relationships. Such judicial prediction, even if based on risk factors identified by substantial research, still remains educated guesswork. A child advocate might be willing to tolerate a high rate of erroneous findings of probable abduction to protect children from the trauma of abduction. A civil libertarian, however, will surely worry about the flip side � erroneous judicial findings of a high risk of abduction, resulting in an injunction and a serious restraint on a parent’s liberty and relationship with a child. A civil libertarian might particularly worry that, in our current political climate, the risk of wrong predictions will fall disproportionately on parents of certain nationalities � especially men with ties to Islamic countries. The competing values at stake in authorizing preventive judicial remedies for potential child abduction are analogous (though not identical) to the values at stake in preventive detention � allowing a court to detain an arrested person because of a prediction the detainee is too dangerous to be released pending trial. In United States v. Salerno, 12the Supreme Court upheld preventive detention authorized by the Bail Reform Act of 1985. It emphasized the high degree of procedural protection that surrounded the decision to detain based on a prediction of future dangerousness: right to counsel; an adversary hearing; judicial discretion guided by carefully enumerated statutory factors; proof by clear and convincing evidence; written findings of fact and a statement of reasons and immediate appellate review of the detention decision. The Uniform Act authorizes contains many, but not all, of these procedural protections for potential child abductors. While space does not allow a full discussion of these issues, a few will be touched on briefly: � The burden of proof: The Uniform Act allocates the risk of error on the side of preventing child abduction over parental liberty and parent-child relationships by setting the evidentiary standard for finding a substantial risk of abduction as a “preponderance of the evidence,” not “clear and convincing evidence.” � Procedural improvement: The Uniform Act emphasizes procedural fairness by requiring notice, a hearing and an opportunity to be heard before allegations justifying preventive relief are sustained. It requires a hearing the next judicial day after an emergency ex parte order for a warrant to take physical custody of a child is issued. 13It does not explicitly provide for immediate appellate review of any order issued under the Act. � Sanctions for frivolous petitions and allegations: Prosecutors who seek preventive detention orders have an ethical obligation of seeking a just result and of fairness to the defendant. Private litigants in civil actions in divorce and custody disputes, in contrast, will be the proponents of preventive abduction orders. Given the volatile atmosphere surrounding these cases, some percentage of petitions and allegations for preventive relief are likely to be false and in bad faith. The Uniform Act authorizes the court to require that the petitioner for emergency relief post a bond to defray expenses and attorney’s fees if the court finds after a hearing that the emergency relief was not warranted. It does not have a similar provision for all actions brought under the act, or an explicit provision for Rule 11 type sanctions for frivolous petitions. � Applicability to visitation and access disputes: As recently reported in the New York Law Journal, in Torotomas v. Andrade, “[a] Suffolk Supreme Court justice . . . ruled that a Huntington woman may move to Toronto with her 11-year-old son from her first marriage, but only if she puts $60,000 in escrow as a hedge against her cutting off court-ordered visitation with the boy’s father.” The article also noted that: [m]atrimonial law experts are calling the decision [to require the posting of a bond] a practical solution to a difficult problem, but also one that is almost unheard of in this context” 14 In New York at least, a bond is thus a potential remedy for predicted problems of visitation and access resulting from parental relocation. Without equating the nature of the wrong or the damage in abduction and access interference cases, it may be helpful to look at them as different points on the continuum of potential methods of interfering with parent-child relationships and provide a comprehensive list of potential risk factors and preventive remedies for both in a single statute. � Parent counseling and education: As noted above, the Uniform Act authorizes courts to order counseling for potential child abductors. The Klass Foundation reports that “as little as 10 hours of intervention effectively reduces the likelihood of family abduction. Preventive measures such as targeted outreach and education to at-risk families � parents undergoing divorce and separation � not only save the state from costly expenses associated with search, recovery and prosecution, but can also spare the child from unnecessary pain and suffering caused by family abduction.” 15Many states have court-mandated education programs for divorcing and separating parents. Thought might be given to how best to coordinate those programs with more focused programs aimed at preventing abduction. � Research and evaluation: Given that making future predictions of child abduction is an uncertain enterprise, legislation should authorize evaluative empirical research and a report on the strengths and problems of the statute after an appropriate period of time. Conclusion Overall, the Uniform Act is a valuable first step in addressing the question of how courts can help prevent child abduction, a serious problem with terrible consequences for children and parents. The drafters deserve our thanks. New York should now consider whether to join California and Texas in enacting a statute on this subject, using the Uniform Act as a beginning point. Andrew Schepard is a professor of law and director of Hofstra Law School’s Center for Children, Families and the Law.Brian Charles, Hofstra Law School class of 2007, assisted in the research for this column. Endnotes: 1. StopFamilyAbductionsNow.org, “America’s Hidden Crime: When the Kidnapper is Kin,” http://www.stopfamilyabductionsnow.org/report/3_child_endangerment.html (last visited Aug. 26, 2005). 2. StopFamilyAbductionsNow.org, “What is Family Abduction?” http://www.stopfamilyabductionsnow.org/about_abduction.html (last visited Aug. 26, 2005). 3. TEX. FAM. CODE ��153.501-153.503 (2004); CAL. FAM. CODE �3048 (2005). 4. UNIFORM CHILD ABDUCTION PREVENTION ACT (Discussion Draft June 1, 2005). 5. The current draft of the Uniform Act is available at www.law.upenn.edu/bll/ulc/spciaa/2005AMChildDraft.htm . Comments can be sent to the Uniform Acts Reporter, Professor Linda Elrod at Washburn Law School at [email protected] . 6. The factors are listed in UNIFORM CHILD ABDUCTION PREVENTION ACT, �7 (Discussion Draft June 1, 2005). This column quotes this listing, but leaves out the statutory section references for ease of reading. The research supporting the listing of factors is summarized with citations in the Comment to the UNIFORM CHILD ABDUCTION PREVENTION ACT, �7 at 14 (Discussion Draft June 1, 2005). 7. UNIFORM CHILD ABDUCTION PREVENTION ACT, �7 (c) (Discussion Draft June 1, 2005). 8. UNIFORM CHILD ABDUCTION PREVENTION ACT �5 (Discussion Draft June 1, 2005). 9. UNIFORM CHILD ABDUCTION PREVENTION ACT, �6 (a) (Discussion Draft June 1, 2005). 10. UNIFORM CHILD ABDUCTION PREVENTION ACT, �8 (Discussion Draft June 1, 2005). 11. UNIFORM CHILD ABDUCTION PREVENTION ACT, Comment to �8 (c) at 18 (Discussion Draft June 1, 2005). 12. 481 U.S. 739 (1987). 13. UNIFORM CHILD ABDUCTION PREVENTION ACT, �6 (c) (Discussion Draft June 1, 2005). 14. Andrew Harris, “Court Orders $60,000 Bond to Ensure Visitation Rights. Long Island Woman, Son Are Allowed to Relocate to Toronto,” N.Y.L.J. Aug. 9, 2005 at 1. The decision in the case is Tortomas v. Andrade, NYLJ Aug. 9, 2005 at 19. 15. StopFamilyAbuductionsNow.Org, “America’s Hidden Crime: When the Kidnapper Is Kin. Conclusion and Recommendations,” http://www.stopfamilyabductionsnow.org/report/5_conclusion.htm (last visited Aug. 31, 2005).

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.