Forward Thinking Family Law Since 1994

Avoiding International Abduction of Children

When one or both parents are foreign nationals or live or work in a foreign country,  international abduction of a child presents a greater threat.  What should a separated or divorced parent do to avoid having a child removed from the United States against the parent’s will?     If the child is taken to a foreign country, what can a parent do to get the return of the child.

Passports: Become familiar with passport laws pertaining to children.  The U. S. State Department Website, www.travel.state.gov is very helpful.  It takes both parents’ permission to get a passport issued, unless the opposing parent has sole legal custody,   This includes submitting pictures of both parents.  If you have significant doubts about the other parent’s commitment to providing you access to your child, do not agree to apply for the passport. If you fear that the other parent will apply for a passport without your permission, notify the Passport Issuance Alert Program in the State Department.  They will notify a parent who registers a child whenever someone else attempts to obtain a passport for the child, either in the U.S. or any embassy or consulate.

If the child already has a passport, arrange to have it held in escrow with a neutral third party, such as the parenting coordinator or a guardian at litem.  If none is available, placing it in escrow with one the attorneys or the clerk of the court.

Even if you can block having a U. S. Passport issued, if your spouse or the other parent of your child is a foreign national, that parent might be eligible to obtain a passport for your child from the other country.  Contact the embassy of the foreign country and find out whether that country requires both parents to apply for a passport.  If that embassy is not helpful, contact the U. S. embassy in that country to find out the requirements and whether they have an alert system if one parent attempts to apply for a passport.

State Department of Children’s Issues is part of the U. S. State Department that deals with children abducted from or into the United States.  See the state department website.  The Department of Children’s Issues will assist the left behind parent in searching for the child.

Also contact the Federal Bureau of Investigation and Interpol immediately if an abduction has occurred.  Help is also available through the Michigan State Police Clearing House.. Currently, Sgt. Jones is the MSP officer in charge.

Find a lawyer who understands the Uniform Child Custody Jurisdiction Equity Act (UCCJEA) and the Hague Convention. The attorney should also be licensed to practice in federal court.  Many foreign countries are signatories to the Hague Convention that provides a mechanism for returning children to their home country.  However countries with whom the U.S. often conducts business, such as Japan, Middle Eastern countries and India are not.  You may have to rely on both laws to get the child back.

The National Center for Missing and Exploited Children, 1-800-843-5678 has a 24 hour hot line.

At this time, children under age 15 can go to Canada and Mexico with just a certified birth certificate.  Consider whether this poses a risk for your child.

Generally, courts will assess the risk factors in determining whether a parent presents a flight risk.

__MCE_ITEM__a.    Is one parent a foreign national with dual citizenship and the other a U. S. citizen without dual citizenship?

__MCE_ITEM__b.    If a parent is a foreign national, does his/her country of origin allow its citizens to obtain passports for their minor children without the consent of the other parent?

__MCE_ITEM__c.     If a parent is a foreign national, does he/she already have in his/her possession a foreign passport for the minor child that can be used without the other parent’s consent?

__MCE_ITEM__d.    Does the abducting parent have an unexpired U. S. passport for the minor child in his/her possession?

__MCE_ITEM__e.    Is there a history of mental illness in the suspected parent?

__MCE_ITEM__f.      Does the suspected parent have significant ties in the foreign country?

__MCE_ITEM__g.    Does the suspected parent have the possibility of employment or otherwise supporting him/her self in the foreign country?

__MCE_ITEM__h.    Does the foreign country have a preference for one parent to retain custody of children following a divorce?

These are very difficult cases for the parents and their attorneys.  There are significant resources available to assist a parent who risks losing their child.  However, the courts will also take a critical look at the situation, particularly if the child remains in this country living with both parents.  The courts will engage in a balancing act between each parent’s autonomy and the child’s right to be raised by both parents.  Therefore, particularly for parents whose spouse or former spouse poses a flight risk potential, it is important to be knowledgeable and vigilant, and balance that against the other parent’s right to spend unsupervised time with the child.