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Abstract
Researchers have been studying family abductions of children for approximately four decades. Their findings inspired statutes designed to prevent family abductions by deterring collateral attacks on child custody orders, identifying abduction-risk factors, and providing for abduction-risk prevention orders. This article helps child custody lawyers, evaluators, and judges use the research and the statutory schemes to deter and prevent family abduction of children in child custody disputes.
Notes
UCAPA is a model act promulgated by a private group—the Uniform Laws Commission (also known as the National Conference of Commissioners on Uniform State Laws or NCCUSL). State Legislatures adopt (often with modifications) uniform statutory schemes developed by bodies like the NCCUSL.
In some states, fathers of non-marital children do not have de facto custody or visitation rights without having first legally established paternity through a formal voluntary declaration of paternity or a judgment of paternity. Similarly, each state treats the children of same-sex couples differently, and a same-sex parent may have to establish legal parentage before having custody or visitation rights.
In addition, state and federal criminal codes define and prohibit family abductions, but are beyond the scope of this article.
Massachusetts is the only U.S. state that has failed to adopt a version of the UCCJEA. Massachusetts still follows the earlier version, the Uniform Child Custody Jurisdiction Act UCCJA.
The Abduction Convention is in force between the United States and 71 of the 88 Abduction-Convention signatories (U.S. Department of State, undated).
Massachusetts uses an earlier NCCUSL model act — the UCCJA (Uniform Child Custody Jurisdiction Act, 1968). Although under the doctrine of federal pre-emption, the PKPA requires those states to use the same bases for jurisdiction as the UCCJEA states do, practitioners in that state report that Massachusetts courts construe the PKPA to permit them to assume modification jurisdiction once the child has lived in Massachusetts for six months.
The UCCJEA is a model statute promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL).
The United States is in the process of entering into the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Convention). While that treaty provides for international recognition and enforcement of foreign custody orders, it does not provide for retention of modification jurisdiction by the decree state. The Convention has been joined by 31 countries and came into force in 2001 (See Silberman, Citation2000a; DeHart, Citation2001). The NCCUSL has developed proposed amendments to the UCCJEA consistent with the 1996 Convention.
In his 2009 written testimony to the Tom Lantos Human Rights Commission, Former NCMEC President and CEO Ernie Allen reported, “NCMEC is currently working cases involving 1,214 children who were abducted by a non-custodial parent from the United States to a foreign country. The majority of these children were taken to the following countries: Mexico (533 children); Japan (54 children); India (32 children); Egypt (30 children); the United Kingdom (24 children); and Canada (23 children).”.
Section 105 provides: (a) A court of this State shall treat a foreign country as if it were a State of the United States for the purpose of applying [Articles] 1 and 2. (b) Except as otherwise provided in subsection (c), a child-custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this [Act] must be recognized and enforced under [Article] 3. (c) A court of this State need not apply this [Act] if the child custody law of a foreign country violates fundamental principles of human rights.
In re Marriage of Condon, 62 Cal. App. 4th 533 (1998); In re Marriage of Lasich, 99 Cal. App. 4th 702 (2002); In re Marriage of Abargil, 106 Cal. App. 4th 1294 (2003).
Proof of some exceptions (‘defenses’) to return requirements under the Hague Abduction Convention must meet the “clear and convincing evidence” standard.
California Family Code §3048(b) (1) provides: (1) In cases in which the court becomes aware of facts which may indicate that there is a risk of abduction of a child, the court shall, either on its own motion or at the request of a party, determine whether measures are needed to prevent the abduction of the child by one parent. To make that determination, the court shall consider the risk of abduction of the child, obstacles to location, recovery, and return if the child is abducted, and potential harm to the child if he or she is abducted. To determine whether there is a risk of abduction, the court shall consider the following factors: (A) Whether a party has previously taken, enticed away, kept, withheld, or concealed a child in violation of the right of custody or of visitation of a person. (B) Whether a party has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of the right of custody or of visitation of a person. (C) Whether a party lacks strong ties to this state. (D) Whether a party has strong familial, emotional, or cultural ties to another state or country, including foreign citizenship. This factor shall be considered only if evidence exists in support of another factor specified in this section. (E) Whether a party has no financial reason to stay in this state, including whether the party is unemployed, is able to work anywhere, or is financially independent. (F) Whether a party has engaged in planning activities that would facilitate the removal of a child from the state, including quitting a job, selling his or her primary residence, terminating a lease, closing a bank account, liquidating other assets, hiding or destroying documents, applying for a passport, applying to obtain a birth certificate or school or medical records, or purchasing airplane or other travel tickets, with consideration given to whether a party is carrying out a safety plan to flee from domestic violence. (G) Whether a party has a history of a lack of parental cooperation or child abuse, or there is substantiated evidence that a party has perpetrated domestic violence. (H) Whether a party has a criminal record.
California Family Code § 3048(a) provides: Notwithstanding any other provision of law, in any proceeding to determine child custody or visitation with a child, every custody or visitation order shall contain all of the following: (1) The basis for the court's exercise of jurisdiction. (2) The manner in which notice and opportunity to be heard were given. (3) A clear description of the custody and visitation rights of each party. (4) A provision stating that a violation of the order may subject the party in violation to civil or criminal penalties, or both.
This article is focused on the relationship between abduction prevention statutes and mental health and sociological research on abduction. For a detailed analysis of UCAPA see Hoff, Citation2007.
ALA. CODE §§ 30-3C-1–30-3C-13; COLO. REV. STAT. §§ 14-13.5-101–14-13.5-112; D.C. CODE §§ 16-4604.1–16.4604.10; FLA. STAT. § 61.45; KAN. STAT. ANN. §§ 38-13a01–38-13a01; LA. REV. STAT. ANN. §§ 13:1851–13:1862; MISS. CODE ANN. §§ 93-29-1–93-29-23; NEB. REV. STAT. §§ 43-3901–43-3912; NEV. REV. STAT. §§ 125D.010–125D.230; S.D. CODIFIED LAWS §§ 26-18-1–26-18-12; TENN. CODE ANN. §§ 36-6-601–36-6-612; UTAH CODE ANN. §§ 78B 16-101–78B 16-112.
ARK. STAT. ANN. §§ 9-13-401–9-13-407 (2005); CAL. FAM. CODE § 3048 (2004); TEX. FAM. CODE §§ 153.501–153.503 (2003); OR. REV. STAT. § 109.035 (2005).
The ULC is also known as the National Conference of Commissioners on Uniform State Laws or NCCUSL.
The Arkansas statute includes whether there was an “overt act” associated with the abduction. Perhaps that phrase is used to distinguish takings from keepings.
The survey had an 80% cooperation rate among eligible households with children and a 61% response rate.
Most of the researchers are careful to warn readers about the limitations of their data. For example, Girdner and Johnston (2001) offer a clear caveat: The profiles of risk for abduction described in this paper have been derived from a relatively small descriptive study comparing samples of abducting and litigating individuals and their family situations. It is not known to what extent these samples are representative of the larger populations of abducting and litigating parents disputing custody in other jurisdictions. These descriptive data provide any statistical prediction of the probability that any individual or family situation that meets the criteria for one or more of these profiles will abduct; nor can we estimate, at this time, the probability of an abduction occurring when these criteria are not met. (p. 7) Despite these clear warnings, legislatures and courts use criteria derived from these studies to identify the abduction-risk factors that family courts must use to assess abduction-risk in individual cases. The risk of “false positives” will remain high so long as the issues with sample size and selection, and the lack of control groups continue to reduce the utility of abduction-risk research.
“[A]s the world becomes smaller, we can anticipate a growing number of transnational families. For example, the number of American children with at least one foreign born parent increased from 15% in 1994 to 22% in 2008 (Federal Interagency Forum on Child and Family Statistics, 2009)” (Edleson & Lindhorst, Citation2010, p. 6).