Once upon a time in Ohio the answer was “yes”. But not any longer. There is much misinformation on the internet about this subject. So, I thought that a review of the child custody laws over the years might be both helpful and interesting. There has been movement away over the years from allowing a child to choose in a divorce which parent to live with. These past “age of election” laws were seen as placing too much pressure on children.

Title VI, Chapter 3, Section 8033 from the Ohio Annotated General Code of 1910 allowed children as young as 10 years old to choose their custodial parent:

“…the court shall decide which one of them (parents) shall have the care, custody….except that, if such children be ten years of age or more, they must be allowed to choose which parent they prefer to live with, unless the parent so selected…be unfitted to take charge of such children…”

Chapter 3109 of the Ohio Revised Code was enacted on January 1, 1974, which states in part:

“(A) Upon hearing the testimony of either or both parents and in accordance with sections 3109.21 to 3109.36 of the Revised Code, the court shall decide which of them shall have the care, custody, and control of the children, taking into account that which would be for their best interest, except that any child twelve years of age or more may be allowed to choose the parent with whom the child is to live unless the court finds that the parents [ sic] so selected is unfitted to take charge or unless the court finds, with respect to a child twelve years of age or older, that it would not be in the best interests of the child to have the choice.”

This statutory provision has been amended and as of April 11, 1991, there is no specific age that permits a child to select his/her residential parent in a divorce. The current version of the law allows the Court to consider the child’s wishes in certain circumstances as a factor in determining the “best interests” of the child.

Ohio Revised Code Section 3109.04 (F)(1)(a-j) delineates the ‘relevant factors’ the Court must consider in making the decision of who will gain custody. They are:

1. Wishes of the parents
2. Wishes of the child
3. Child’s interaction and relationship with the parents, siblings, etc
4. Child’s adjustment to the home, school, and community
5. Mental and physical health of all persons involved
6. Which parent is more likely to honor court approved visitation/companionship rights
7. Whether either parent has failed to make all child support payments
8. Whether either parent (or other member of the household) has been convicted of a criminal offense that resulted in the child being abused/neglected (specifically lists sexual offenses)
9. Whether one of the parents have disobeyed a court ordered shared parenting decree and denied the other parent their rightful time with the child
10. Whether either parent has or is planning to establish a residence out of state

Conclusion:

When the parents in a divorce or post-divorce action cannot agree on custody or the residential parent designation, the Court will review all of the factors listed in 3109.04 (F)(1)(a-j)  above in making its decision regarding the “best interests” of the child. So, while the wishes of the older children will be taken into consideration more so than those of younger children, the children’s wishes are never 100% outcome determinative. Courts do not just “rubber-stamp” a child’s choice once that child reaches a prescribed age (as they were inclined to do many years ago). As one might expect, these cases are very fact sensitive. Obviously, it may not make good sense to “force” an older child to live with a parent against his/her strong wishes. But there is “no black or white” rule to follow regardless of a child’s age. To assist the Court in figuring out the dynamics of what is going on in both homes (as well as a child’s wishes), often a Guardian ad Litem is appointed by the Court in these custody disputes to make recommendations as to the child’s “best interest”. To read more about the role of a Guardian ad Litem in a custody dispute, click here.

When parents neglect or fail to provide even basic food, shelter, or medical care for their children, we would all agree that Children’s Services needs to step in and remove a child from their parent’s control.  If a child’s immediate safety and well being are at risk, we would argue that such a situation must not be allowed to continue.

But what about parents who allow their children to become extremely obese over time…obese to the point that a child’s health, or even life, is in danger?  If a child is experiencing medical problems because his or her parent allows them to eat to excess and maintain an inactive lifestyle, should Children’s Services remove a child from that environment?  Doesn’t the situation amount to a form of child abuse that authorities should act upon?  A recent commentary in one of the nation’s most distinguished medical journals, the Journal of the American Medical Association, argues “Yes!”, and it’s causing quite a debate across the country.

The commentary that has generated numerous news stories and blog articles was written by Dr. David Ludwig, an obesity specialist at Harvard-affiliated Children’s Hospital in Boston, and Lindsey Murtagh, a lawyer and researcher at Harvard’s School of Public Health.  The two were inspired to write their article after Dr. Ludwig was involved with the following case:

Several years ago a 90-pound, 3-year-old girl came to his obesity clinic.  The girl’s parents had physical disabilities, little money, and had been unable to control her weight.  Last year the girl, who is now 12, returned to Dr. Ludwig’s clinic weighing 400 pounds.  She had developed diabetes, cholesterol problems, high blood pressure and sleep apnea.

Because health care providers are required to report children who are at immediate risk, the girl’s case was referred to the local agency and she was placed in foster care.  Over the last year, away from her parents, she has lost 130 pounds and her diabetes and apnea have disappeared.  She is still in foster care.  A separate case cites the story of a 555-pound teen who was removed by the state from his mother’s home.  That boy was able to lose 200 pounds in two years, but only after being sent to live at his aunt’s home.

As with any other dangerous situation where children are at risk, Dr. Ludwig explains that the point isn’t to blame parents but to act in a child’s best interest and to get them the help and care that their parents are not providing.  He points to the roughly 2 million U.S. children who are extremely obese.  Most are not in imminent danger, but many have obesity-related conditions such as Type-2 diabetes, breathing difficulties and liver problems that could kill them by age 30.

Dr. Ludwig argues that it is those extreme cases where government intervention (temporary protective custody by Children’s Services) should be considered.  After removing a child from a home for their own protection, Dr. Ludwig contends that the goal should then be to educate the parents and reunite the family as quickly as possible.  He believes that solution is much more preferable and ethical than having a child undergo gastric bypass surgery, which unfortunately is sometimes used to treat obese adolescents.  Finally, Dr. Ludwig proposes a new litmus test for taking kids away from their parents.  Instead of demonstrating abuse or dangerous neglect, the state need only document a child’s weight-related health risks and the parent’s “chronic failure to address” the problem.

A 2009 opinion article in Pediatrics magazine made similar arguments, and last year a commentary in the British Medical Journal cited that obesity was a factor in several child protection cases in Britain.

Since Dr. Ludwig’s article was published, opinions have become more vocal and intense on both sides of the issue.  Some advocates say that, of course, the government should be allowed to intervene in extreme cases.  If the government doesn’t intervene, no one will because the parents obviously aren’t protecting the child’s best interests.  Conversely, others feel that the government already has too much power to remove children and to break up a family.  They contend that it is a parent’s prerogative as to what and how much their children eat as well as how much exercise their children get.

Ohio’s custody laws, like the laws of most states, still hold that a child cannot be removed from the home unless there is reason to believe the child is likely to suffer imminent serious physical harm, injury or death.  Federal laws establish the minimum standard for states for defining child abuse and neglect as “any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm…or an act or failure to act which presents an imminent risk of serious harm.”

My legal research does not indicate any litigated Ohio cases concerning Children’s Services removing a child from a family primarily because of the excessive weight of a child.  Now that the debate has become more intense, though, don’t be surprised if one day in the near future you hear about an Ohio child who has been removed from their home by the local Children’s Services agency because a child is dangerously obese.  The case will no doubt involve a child who is experiencing serious medical problems because the child’s parents have failed to take action to correct the child’s diet and activity levels.  Medical and social work personnel will charge that the child’s immediate health is at risk because of the excessive weight and the problems it is causing.  The child’s parents will tearfully plead for the return of their children so that they can be raised in the best way the parents know how.

Regardless of what happens, it will be a sad situation for the child and their family.  It will be a difficult case for every social worker, attorney or Judge who is involved, and it will generate strong opinions from all who hear about the case.

After years of intense pressure from the United States government and governments of the European Union, the government of Japan recently announced its intention to join the Hague Convention relative to child custody.  At the present time, Japan is the only major industrialized country that has not signed the treaty.  And, Japan is the only member of the Group of Seven (G-7) leading nations which is not a party to the treaty.  The G-7 countries which have adopted the Hague Convention are France, Germany, Italy, the United Kingdom, Canada, and the United States.

The Hague Convention, also known as the Hague Convention on the Civil Aspects of International Child Abduction or the Hague Abduction Convention, was signed on October 25, 1980.  Its effective date was December 1, 1983.  As of April 2011, eighty four (84) states/countries are parties or signatories to the Convention.  The primary objective of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention of a child or children.  Stated in the alternative, the Convention provides that the Court in which a Hague Convention action is filed should not consider the merits or any underlying child custody dispute, but should only determine the country in which those issues should be heard.

The Hague Convention was designed for the primary purpose of protecting children from the harmful effects of being “abducted” by their Fathers to their Fathers’ native countries.  In reality and at the present time, there have been far more cases wherein Mothers have absconded with and taken their children back to their home countries and away from the children’s country of residence.

It is extremely important to citizens of our country to have Japan join the Hague Convention.  There are over 136 minor children presently being held in Japan against the will of the United States and against the will of their American parents, mostly Fathers!  And, because Japan has not become a member of the Hague Convention, Fathers whose children have been wrongfully abducted to Japan have no legal recourse in obtaining custody or visitation with their children.  Even if Fathers have a valid Divorce or Dissolution Decree granting them “custody” of their child(ren), the country of Japan will not enforce any of those court orders.

While the affected parents of the children currently being held in Japan are elated and excited about this recent news, the entire process could take years to accomplish.  The process could be lengthy for many reasons including:

• Japan’s proposal to join the Hague Convention must be “passed” by the legislative branch of the government, the Diet.  And, there is opposition to its passage by some members who believe that the Mothers returning to Japan with their child(ren) do so because of domestic violence or child abuse issues.  Also, Japan has an interest in protecting its citizens from being arrested by agents of our government for “wrongful abduction”. 
• Japan would have to essentially write, develop, and implement a whole new body of family law.  While the country has laws regarding the termination of marriage by divorce, their statutes are lacking in laws relative to visitation, companionship rights, parenting time schedules, child support, health insurance, and payment of health-related expenses. It will certainly take much time and effort for a new body of family law to be formulated and implemented.
• Japan would have to develop a “clearing house” to locate and identify children who have been wrongfully removed from our country and other countries and who are being held against the will of the other parent or in violation of a custody order.
• Japan may have to develop an administrative hearing body to “hear” and “decide” these cases, i.e. where should this “custody” proceeding be heard?

Also, it must be noted that many scholars believe the new statutes would be prospective in nature, meaning the new laws would not affect the 136 American children presently being wrongfully held in Japan.  If you can recall playing the game “Mother May I” in grade school, the decision of Japan to join the Hague Convention could be likened to receiving the direction to take a “very, very small baby step forward” rather than being directed to take “ten giant steps forward”!  Still, for many persons affected by the present family laws of Japan, a “very, very small baby step” can still be seen as forward progress!

I have written several articles about a Dayton father whom I have represented whose children were abducted by their mother to Japan.  Kent Swaim, who was granted custody by our local Court, is doing everything possible to hopefully be reunited with his children.  A tragic situation! Click here to read more about Kent’s plight.

On February 6, 2010, I posted an article entitled, “They Fight for America and Upon Return Must Fight for Their Children”. The article addressed the issue of active duty servicemen and servicewomen returning from overseas assignments, often in the Middle East, to find that their former spouses were using the overseas military assignment as a “substantial change in circumstances” to obtain a change in custody of their minor children.  At the time of that posting, Michael R. Turner, R-Ohio, was trying to persuade Secretary of Defense, Robert M. Gates, to agree that active duty military parents should receive child custody protection while they were deployed out of the country.  The Department of the Defense had opposed this protection and Turner’s proposed legislation.

On February 11, 2011, Secretary of Defense Gates responded to Representative Michael Turner in a brief letter which said that his Department “was/are willing to consider whether appropriate legislation can be crafted that provides Service members with a federal uniform standard of protection in cases where it is established that military service is the sole factor involved in a child custody decision involving a Service member.”  Click here to read his letter.

On February 16, 2011, Congressman Turner posted a press release entitled, “Gates Joins Turner in Fight for Service Member Child Custody Rights” wherein Representative Turner stated, “I join families of Service members around the globe in thanking Secretary Gates for his support of their parental rights.  Our men and women in uniform should not have to worry about losing their children while they defend us overseas.” Click here to review it.

Let us hope this legislation is passed by both houses of Congress to give our active duty military servicemen and women the protection they need and deserve as they fight for us and the freedoms we enjoy!

Our guest contributor this week is Judianne Cochran a nationally recognized expert/consultant in the following disciplines: sex offender profiling; false allegations in custody cases; interstate and international parental abduction; interstate custody and parental alienation. She has testified in numerous Courts throughout Ohio and the country. Judi presently resides in Columbus, Ohio.

In recent years there has been a steady and alarming increase in the use of false allegations of vague, unsupported claims of domestic violence and even vaguer claims of child abuse, used solely in an attempt to find a shortcut to a presumed better position in custody cases. What is more alarming is the observation that more often than not the attorneys of record for the litigants making these claims have been those unschooled in and relatively new to the family law arena, who have chosen to step outside their actual specialty and add a minor “division” of family law to their practices. Often, a new, young, unskilled associate is added to the practice to handle these family law issues.

Some of these practitioners use this mechanism so frequently that simply hearing the name of the attorney leads one to assume that automatically there will be a “smoke and mirrors” allegation followed by the attempt to go in the back door to gain at least temporary custody of the child. In most jurisdictions, these attorneys become known through a variety of “word of mouth” referral processes and, not surprisingly, the number of these cases rapidly increases.

The interesting aspect of this “word of mouth” referral network is that the “word” spreads so rapidly.  The litany of “complaints” is so common that I often wonder if there isn’t a publication most of us aren’t privy to that gives instructions. In recent months, I have had an increasing number of referrals bluntly state that they consulted an attorney regarding initiating a divorce with children or a post-decree custody issue and were told to first consider contacting their local child protective services agency. Then, if they manage to get a case opened, the client is advised to come back to initiate the action and it would then be a slam-dunk case to at least temporarily get a sole custody order.  Some have been told to think about the past year and make a list of possible allegations which might be used to get a temporary order, or at least a temporary protection order which includes the child.  When the child is very young, there is a “suggestion” to the client to have the child medically examined because then there is a record of suspicion of sexual or physical abuse.  Many of the practitioners who subtly or otherwise raise this suggestion inform the client that the doctors are mandated reporters so, if the seed is planted, the child protection agency will be required to do at least a cursory investigation.  This, of course, puts the target parent under a cloud even when the allegation is determined to be unsubstantiated.

It is alarming that there is no consideration given to the best interests and well being of the children who are the subjects of this distasteful practice. There is a disconnect in ethics and logic, and there is no awareness that the little conspiracy between attorney and client to create this fraud will traumatize the children involved, sometimes almost irreparably.  While I recognize the narcissism and need for control in the parent who will go to any length to get what they want, I am more appalled at the narcissism and unethical behavior of the attorneys who encourage this “gambit”.  An aspect of this practice that is deplorable is that there is little done by the courts to discourage the practice.  In the family law court there is rarely any sanction against the litigant for perjury, false allegations or abuse of the blatant misuse of the statutes regarding protection orders; and worse, the attorneys who create these nightmares are rarely brought to task, even when their own client testifies that the “game” was created by their attorney.  Since the Court is under no ethical standard to report the bad behavior, it needs to be the ethical and moral obligation of opposing counsel to follow through with the Supreme Court.

When appropriate action is taken, both the Disciplinary Counsel and the Court do follow through.  Attorney Doris Houser Allen from Hamilton County was not only disbarred, but was charged with a felony for helping a client prepare false affidavits.  At her sentencing for the felony charge, Judge Steven Martin called her behavior “reprehensible”.  Her client, Sylvia Huff, however, even after admitting to the set-up and false allegations, just blamed Allen for the predicament.  Other courts around the country are also beginning to react to this pattern of behavior.  Recently a woman in Manchester, New Hampshire, was sentenced to seven to fourteen years in prison for making false claims of domestic violence during her custody case.  At her sentencing before Judge Kenneth McHugh, Assistant County Prosecutor Jerome Blanchard said that her “folly” was that the claims in criminal court had to be backed up, unlike in family court where she made repeated claims against her ex-husband with impunity.  As he put it, “We’re not in family court anymore”.

This is the sad reality:  Family courts historically do not require proof, ignore the evidence and “err on the side of caution” even when the lies and the unethical behavior of the attorneys involved are exposed.  It is encouraging that this pattern is being exposed and both litigants and attorneys are facing the sanctions they deserve.  However, nothing will happen to either litigant or miscreant attorney until and unless someone steps up to the plate and follows through.

If you are an attorney pleased with yourself about your “winning” games, remember that anyone can bring the complaint against you.  Remember also, as is the case in Allen, your client will throw you under the bus by assuming the “victim persona” you helped create.  Keep in mind that when your client testifies about your “recommendations”, people are listening and paying heed to your behavior.  Today, that clock is ticking and you will be brought to task.  If you are a litigant who has had this “game” suggested to you by your attorney, keep in mind that you, too, can be prosecuted, that you can lose that custody you so coveted that you would cheat and lie to get. My suggestion would be to reject the game and run, don’t walk, to an ethical, skilled Family Law Attorney.  Then, file a complaint against the attorney who gave you the unethical advice.

I am very aware that many people have difficulty in selecting an attorney and understanding the best mechanism for finding one. I will be helping to explain how to navigate through that mechanism in a follow-up article.

Here is an update about our client, Kent Swaim, whose two sons were abducted to Japan by their mother, published in the DDN on September 8, 2010.

Abducted Clayton boys registered on national criminal justice list

Authorities can use designation to urge Japanese to send sons back to father.

By Mary McCarty, Staff Writer Updated 1:27 AM Wednesday, September 8, 2010

Clayton father Kent Swaim has won an important victory in his quest to be reunited with the two young sons he hasn’t seen since his former wife fled with them to her native Japan two years ago.

The boys finally have been registered with The FBI’s National Crime Information Center (NCIC), a computerized index of criminal justice information, including missing children.

Swaim’s plight was featured in an Aug. 15 Dayton Daily News story. The Wright-Patterson Air Force Base master sergeant had long been frustrated by his inability to convince authorities to enter the children in the database.

“This gives the U.S. State Department and the National Center for Missing and Exploited Children the tools they need to help me and take this next step,” Swaim said. “It gives them the authority to plead with the Japanese authorities to do something.”

Montgomery County Domestic Relations Court Judge Judith King has awarded Swaim full custody of sons William, 10, and James, 5, but his former wife, Miyuki Swaim, hasn’t complied with the court order to return the boys to the United States. Swaim doesn’t know their address or phone number in Okinawa, but was repeatedly told that the boys still didn’t meet the criteria for inclusion in the NCIC database because they were known to be safe.

Lt. Matt Hamlin of the Clayton Police Department credited officers from the Montgomery County Dispatch Center with convincing NCIC officials to grant permission to register the Swaim boys. “It’s what we’ve been waiting for,” Hamlin said. “Now the State Department can work with Interpol and the Japanese government for the return of the boys.”

Swaim’s attorney, Anne Shale, said he has been fighting for the boys for more than two years with little success. “This gives him hope,” she said.

To read Mary McCarty’s article online or for her contact information, click here. For more about Kent’s situation, or to learn steps to prevent these types of situations,click here.

Please click here to see a news story that aired September. 8, 2010, on WKEF-TV in Dayton, Ohio.

On October 24, 2009, our Ohio Family Law Blog published an article entitled, “U.S. Father Arrested In Japan For Picking Up Children ‘Abducted’ By Ex-Wife…The Rest Of The Story”!  On Sunday, August 15, 2010, the Dayton Daily News published a human interest news story entitled, “Dad With Custody Can’t Get Kids From Ex-Wife In Japan”.  The 2009 article involved a Father from the State of Tennessee having a former Wife secret his two children away to the Country of Japan without his knowledge or consent. The most recent incident reported in the Dayton Daily News involves a Father residing in the State of Ohio whose Wife secreted his two children to the Country of Japan without his knowledge or consent before the termination of the parties’ marriage.  The subject Father, Kent Swaim, is a client of our firm.  He has given us permission to share his story!

Facts of the Kent Swaim Case:

1. Kent Swaim (“Husband/Father”) is an active duty member of the United States Air Force.  While serving his country in Okinawa, Japan, the parties met at an ice cream parlor on the island.  They dated one another and he later married Miyuki on May 21, 1999.  Their first child, William, was born on December 17, 1999, while Kent was still stationed at Kadena Air Force Base, Okinawa.
2. Husband was later reassigned to Lakenheath Air Force Base (“AFB”), England.  A second son, James, was born in England on December 5, 2004.  Both of the Swaim children are citizens of the United States by virtue of their Father being a citizen of the United States.
3. While Husband was stationed at Lakenheath AFB, Wife experienced symptoms of clinical depression and had two suicide attempts.  Husband actively encouraged Wife to participate in counseling and to take prescribed anti-depressant medications.  According to Husband, Wife would take the medications until she felt better and then stop taking them as directed.  Time and time again, she would experience a downward decline in her mental health and stability when she discontinued the anti-depressant medications.
4. In 2006, Husband was reassigned to Wright-Patterson AFB in Fairborn, Ohio. Wife again experienced symptoms of depression;sometimes sleeping for up to fourteen (14) hours per day.  She was unable to take care of herself, her children, or the house. Repeatedly, Husband urged and encouraged Wife to obtain mental health treatment for her depression and for her to take the prescribed anti-depressant medications.  Wife refused to follow-through with counseling, therapy, and medications.
5. In June 2008, Husband did advise Miyuki that if she would not commit to obtaining treatment for her clinical depression that he would seek a divorce from her.  For Wife, that may have been the “factor” that “triggered” her “flight response” to leave Husband with the parties’ two minor children.

   On July 7, 2008, Husband read a book to William and James as part of their bedtime routine.  That was the last time that he saw and held his two sons (hugging them and giving to them a “good night” kiss)!

6. On July 8, 2008, Miyuki had asked if she could have the car as she had shopping to do and errands to run.  When Husband returned home from work that day, he was extremely distraught to find that no one was at home, the family car was gone, pictures had been removed from the walls of the home, the clothing belonging to Wife and the children was gone, and more important, the children’s birth certificates and passports were missing!
7. Husband immediately tried to file a Missing Persons Report with the Clayton Police Department. Officers from the City of Clayton Police Department came to the home but did not seem to take any positive action to ascertain where his wife and the two children were. Approximately four weeks passed before Kent actually “knew” where his wife and children were. He finally confirmed that Miyuki had indeed taken their children back to her home in Okinawa, Japan, when he dialed numbers on a recent telephone bill and Miyuki answered the phone. She then advised him that he could have the house, car, and everything else but that she was keeping the children!
8. On September 3, 2008, Husband filed his Complaint for Divorce in Montgomery County, Ohio, with alleged grounds of gross neglect of duty in failing to act as a Wife to Husband and extreme cruelty in fleeing the country with the two minor children, thereby depriving him of companionship and meaningful contact with the children.  He also alleged the parties had become incompatible in their marital relationship.
9. Because Wife was living in a country (Japan) which is not a member of the Hague Convention, it was necessary to serve her with Husband’s Divorce Complaint via Letters Rogatory.  This was a lengthy and expensive process as all pleadings had to be translated into Wife’s native language and an international process serving firm had to be hired to accomplish personal service upon her.
10. Wife finally filed her Answer to Husband’s Complaint and an Amended Answer to the Complaint on January 12, 2009.    A “contested” divorce proceeding took place on November 30, 2010, before the Honorable Judith A. King.  Her written Decision was rendered on March 19, 2010.  The Court awarded sole custody, care, and control of the parties’ two minor children, William and James, to Husband/Father.
11. The parties’ Final Judgment and Decree of Divorce was filed on May 21, 2010. Neither party filed objections or appeals to the Court’s Decision or to the Final Judgment and Decree of Divorce.

Discussion of the Case:

Japan, an industrialized and modern nation, is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.  In short, this means that Japan will not “enforce” the Order of Custody that Kent Swaim has for his two children to be returned to him. So, if he chooses to take similar action as that taken by Christopher Savoie in September 2009, to go to Japan and attempt to personally retrieve his children, he risks arrest and imprisonment by the Country of Japan.

What can Kent Swaim do?

His legal avenues to even see his boys are very limited. He can continue to hope that Japan will become a signatory of the Hague Convention and that “negotiations” can and will be made for the safe return of his two children.  In addition, he can continue to hope that the State Department will be of assistance to him.

What preventative steps should other parents take?

If you, as an American citizen, are married to a non-citizen spouse, you should have your children’s birth certificates and passports kept in a secured and locked location.  Without birth certificates and passports, it is likely that Miyuki Swaim and Noriko Savoie would NOT have been able to return to the Country of Japan with their minor children.
After the newspaper coverage, I discussed with Kent his reaction. Interestingly, he stated that he felt the response from the police would have been much more “pro-active” if he had been the party who had removed the children from the home rather than their mother. He believes that there has been a gender bias throughout the entire ordeal, almost ignoring his rights because he is “just” their father and not their mother!

I also submitted a follow-up letter to the DDN editor suggesting other important preventative steps that should be taken by parents to avoid this type of catastrophe. To read that letter published on August 29, 2010, click here.

To read the three articles, including the one on the front page of the Dayton Daily News on August 15, 2010, about Kent Swaim’s situation, please click here.

If you are planning a foreign vacation this summer, you had better plan ahead to determine all the necessary travel documents that you will need.  This can be a much more complex issue than one might think.  A good place to start is the U.S. Department of State International Travel website, which can be accessed here.  Or, you can call them by telephone at (877) 487-2778 if you have questions.

I do not intend to try to outline all the various documents required for each international destination, but rather to alert our readers of a requirement that is more obscure.  In recent years, concerns about international child abductions have increased; and as a result, new travel restrictions have been imposed including border officials becoming much more cautious when they encounter a child traveling without both biological parents.  Just having a child’s birth certificate is not enough.  It is wise to bring a copy of the legal custody orders with you.  But in addition, did you realize that a child departing the U.S. and traveling with only one parent, grandparents, a guardian, or another adult or group, must have a notarized Travel Consent Authorization document from both birth parents or legal guardians?

This is true even if you are planning a quick trip to see Niagara Falls from the Canadian side.  Here is what could be expected as you drive across the border, say about noon, on a Saturday.  In this hypothetical situation, you are traveling with your 12 year old son, Dexter, and your Fiancé, Tiffany, to consider if you want to go there for your upcoming honeymoon. You had gone through a rough divorce with Dex’s mother 5 years ago and were awarded sole custody of him. You have mother’s verbal agreement to go to Canada. So, here is what might happen. After waiting for about 20 minutes in line, you are confronted by a U.S. Immigration agent that will scope you out, look at your documentation, and ask you a series of questions. He will see Dex in the backseat and will say something like: “Hi. What is your name?  How old are you, son?  Where are you going?”  All of this is starting to annoy your son, and then when the agent asks, “Where is your mother?” Dexter responds that she is home in Dayton.  And then, becoming more irritated and hungry, Dex responds to the agent’s follow-up question as to whether his Mom has consented to the Canadian trip with, “No, she was really angry about it and didn’t want me to go with my dad and Tiffany at all!  She was very worried about it!”

If that were to occur, even if you had the verbal consent of your ex-wife, you might well find yourself waiting at the border until Dexter’s mother can be contacted by telephone to approve proceeding with your trip!  Who knows how long that might take, and depending on her whereabouts and mood, what she might tell the agent.  Talk about ruining a trip and stressing your family out – this could do it big time!

The written authorization does not have to be complicated or necessarily on a prescribed form.  It can even be handwritten, but it needs to contain all the required information.  As a convenience to readers of the Ohio Family Law Blog, I have attached an Authorization to Travel with Minor(s) Affidavit.  Click here to access it.  Plan ahead.  If your child’s other parent is uncooperative, you may need to contact a family law attorney to file a motion to get a Court Order to allow the travel abroad.

For reference, we have previously posted many related articles on our blog about Hague Convention litigation, international child abduction matters and passport blocks. This area of law is of significant concern in today’s society!  Some of those articles are linked below this post. Others may be found by checking the index on the left margin or by entering your specific topic of interest in our website search engine.

I hope that reading this post may help you to avoid a possible “border nightmare.”  By the way, if you do find yourselves at Niagara Falls, one of my favorite childhood memories was sailing near the falls on the “Maid of the Mist” ship!  A damp experience, but very cool nonetheless!  As an adult, I was recently able to once again don the blue rain slickers and enjoy the same boat ride with my own children. I really recommend it!  In any event, enjoy your travels abroad and make your own great family memories!

For those of you that read our Ohio Family Law Blog regularly, you are familiar with problems that may arise when your children travel internationally.  Specifically, one parent may abduct your child to his or her home country.  Another issue may be that you send your child to visit his or her parent in another country and that parent refuses to allow the child to return.  If the country that the child is in is a signatory to the Hague Convention, there are mechanisms that may assist the parent in obtaining the child’s return.  This process, however, can be costly, time consuming, and produce uncertain results.  So you ask, what steps can you take to protect your child from ever being placed in that position?

The United States Department of State has anticipated that very problem and has instituted a program that may alleviate some of those fears.  The Children’s Passport Issuance Alert Program (“CPIAP”) was established to fight child abduction of any kind.  Essentially, the program creates a protocol where a parent or both parents is contacted if there is a passport application made on behalf of a child who is registered.  The parent who is notified then has an opportunity to register an objection if the child is not supposed to be leaving the country, or travelling to another country if he or she is already overseas.  If there is an objection filed, the State Department issues an alert to all U.S. passport agencies as well as to all foreign embassies and consulates.  The theory is to give the parent advance notification of the possibility of international travel with a child so that the parent may take steps to prevent it.

Obviously, this is a good step to take in situations described above.  But it is hardly fool-proof. It is also a good prevention method to take in other situations as well.  Even if both parents reside together and the Hague issues are not present, this step of registering your child can prevent a stranger, friend, or other family member from being able to successfully obtain a passport for your child, who may be planning to abduct him or her at a later date.

The CPIAP is administered through the Charleston Passport Center, a part of the United States Department of State.  Any parent who has not had their rights terminated may register their child, even if they are not the custodial parent.  There are a few requirements, however, to be eligible.  First, your child must be a United States citizen.  Second, your child must be under the age of eighteen.  Finally, you must complete the registration process.  The process of registering is fairly simple.  All you need to do is to fill out the Entry Request Form, provide identification and a copy of your child’s birth certificate.  You can mail, fax or even email the documents to the Charleston Passport Center to get registered.

For more information please click the following link:

http://travel.state.gov/family/abduction/resources/resources_554.html

For a copy of the Form click
here.

What is an in camera interview? The phrase “in camera” is a Latin term defined in Black’s Law Dictionary as: “In chambers; in private.”  The interview does not involve a camera or a videotape at all!  If a party is asking for the Court to have an in camera interview of a minor child, the request is for the Judge or Magistrate to interview the minor child privately with neither parent or his/her attorney being present.  An Appellate Court in Michigan said it very well years ago . . .

“A child custody determination is much more difficult and subtle than an arithmetical computation of factors.  It is one of the most demanding undertakings of a trial judge, one in which he must not only listen to what is said to him and observe all that happens before him, but a task requiring him to discern and feel the climate and chemistry of the relationships between children and parents.  This is an inquiry in which the court hopes to hear not only the words but the music of the various relationships.”  Dempsey v. Dempsey, 96 Mich. App. 276, 289 (1980).

What is the goal of an in camera interview? The goal is to provide the minor child with the comfort and security to be able to express his/her wishes regarding custody, visitation, and other child-related matters in a safe, non-adversarial environment with neither parent being present to hear what the child is saying.  The Court must determine what is in the child’s best interest, and this is one way to gain insight to the issues in dispute.

Who is present at an in camera interview? The interview is conducted by the Judge or Magistrate assigned to the case.  If a Guardian ad Litem has been appointed to assist with the case, the Guardian ad Litem may also be present for the interview.  That determination is up to the Court.  A court reporter is typically present to transcribe the interview, but the interview transcript is not available to either party/parent or to his/her counsel in order to provide some level of confidentiality to the child’s wishes.

How is the in camera interview conducted? Not surprisingly, every Judge has his or her own style.  Most try hard to put the child at ease and chat in a conversational manner to minimize the child’s discomfort.  Typically, the Judge won’t just blurt out a question such as “Where do you want to live?”  Judges try to get a true sense of where the child is coming from, but also try to detect if a parent has perhaps intentionally or unintentionally placed pressure on the child to express a certain opinion.

How does one obtain an in camera interview? Either party may request an in camera interview of the minor child/children by filing a Motion with the Court in the pending action.  A minor child should not be brought to Court for an in camera interview unless the Motion for the interview has been granted by the Court setting a specific date and time for the interview to take place.  Divorce Court Judges generally do not want children being brought to Court and “caught in the middle” of the litigation between their parents.  While the Judge must ultimately determine what is in the child’s best interest, you need to be sensitive to the pressure this process places on a child.

When does an in camera interview take place? The Court usually wants to conduct the hearing and hear the evidence before the interview of the minor child takes place.  But, each Magistrate or Court handles these interviews differently.  In addition, many Courts have their own rules regarding in camera interviews.  Sometimes the Court will set a separate date for the child to be interviewed, not wanting to conduct it on the same day as the hearing or trial.  Most Judges/Magistrates will, however, ask the attorneys for an overview of the suggested topics to discuss in advance of the actual interview.

How old does a child need to be for the in camera interview? The law says that the child must be a minor and not under a legal disability.  The Judge must first determine if the child is of sufficient age and maturity to express his or her opinions.  If the child is “too young” or immature, his or her wishes may not be considered by the Court.  Obviously, the older the child, the more likely his or her wishes will be considered by the Court.  There is no automatic age of election in Ohio, so no child regardless of his/her age has a “right” to select which parent obtains custody.

Can I block the Judge from conducting the in camera interview because I don’t want my child subjected to it? Probably not, absent some unusual circumstances.  When a Motion for the in camera interview has been filed, you have an opportunity to object or respond with your position.  But, it has been held that the plain language of Ohio Revised Code Section 3109.04(B)(1) absolutely mandates the trial court to interview the child if either party requests the interview.  If the child is in counseling, it would be good to mention it to his/her therapist in advance of the interview so that the therapist can try to de-stress the entire process with the child.

Will the Court conduct an in camera interview if a Guardian ad Litem has been appointed? Yes.  While some might think it would be duplicative with a Guardian ad Litem investigation, if one parent requests an in camera interview, it must be conducted even if a Guardian ad Litem has been appointed.

Will I learn what my child has told the Judge in the in camera interview? Typically, the Judge will bring the attorneys into the courtroom or chambers at some point after the interview and share a sense of the content of the interview.  Most Judges are somewhat guarded and prefer not to divulge too much detail from the interview in order to avoid possible retaliation by an unhappy parent.

Conclusion:

Parents and counsel should be very cautious about requesting in camera interviews.  Realize that even having a “private talk” without the attorneys and parents present may make the child feel like he/she has “testified.”  Keeping the children out of the middle of the divorce or custody litigation should be a high priority.  Try not to put your child in a position to have to “make a choice” as to which parent to live with.  This can be extremely unfair and can create huge pressures on a child.  Ideally, the only time an attorney should consider having a child participate in an in camera interview is when the child has voiced a strong desire to do so, and the child’s wishes are critically important to the determination at hand.