Our guest contributor this week is Judianne Cochran a nationally recognized expert/consultant in the following disciplines: sex offender profiling; 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.
Recently, there has been a flurry of news reports and discussions regarding cases where an abduction has already occurred and a child has been taken and retained in a foreign jurisdiction. The most recent is a case where a father attempted a “snatch-back” in Japan. As is usually the case, this self-help method does not result in the recovery of a child. Unfortunately, in both that case and in the Goldman case where the child is in Brazil, it appears that nothing was done in the way of prevention before the loss of the child.
There are many measures which can be put into place to aid in the prevention of an international abduction. To begin with, any parent who chooses to have a child with a foreign national should always anticipate the possibility that the foreign parent will eventually elect to take the child and return “home”. Since this is an obvious predictable event, the American parent must be pro-active in availing himself of all of the remedies available. There are certain absolutes even before a divorce or custody action. First and foremost is preventing access to the child’s passport, if one exists, to the foreign parent. Second, steps can be taken to delay or prevent the foreign jurisdiction from issuing a passport for the child based on the parent’s citizenship status. Too often a parent is not aware that a foreign country can and will issue the passport if the parent is a national of their country.
Too often the left-behind parent has allowed the child to be taken on “vacation” to the other parent’s country, only to never see the child again, or at the most be able to have rigidly controlled contact when the child is found. This, in essence, is giving permission to abduct and conceal. There are creative mechanisms available, each dependent on the specific situation. I have made various recommendations tailored to the individual cases I’ve dealt with. Among them, if the mother chooses to visit her home of origin, then the father should travel there with the child, retaining the passport; offering to provide round-trip transportation to the foreign grandparents to come to the U.S. for a visit; refusing to co-sign a passport application, thus barring the child from international travel until after the age of 16 years. Too often, a parent will “allow” a trip actually believing that the child will be returned. Even in cases such as the current one in the news, a parent will allow a visit and the child will be returned, but the foreign national parent will retain the passport opening the door to the actual abduction. The first trip is always a test run.
During custody litigation where one parent is a foreign national, even if a U.S. passport has not been issued for the child, the U.S. parent’s attorney should ask that the other parent turn over ALL passports, including any obtained by the foreign parent from his/her country of origin. In a recent case in California, the mother actually had six passports for the child: One current and two expired U.S. passports plus a “pair and a spare” from her country. Considering the risk in all of the scenarios involving a U.S./foreign national custody issue, the next step is to request a bond be ordered by the court, revocable even if the parent crosses a state line without permission of the court. The attorney must be well prepared for arguing this issue since many judges will simply call it “anticipation of a crime” and act accordingly, thus essentially aiding the foreign parent’s plan.
The custody order itself must not provide for shared parenting, but rather sole legal custody to the U.S. parent. “Shared or Joint” can be loosely interpreted and many foreign consulates consider it to mean that their own citizen has an equal right to remove the child. This does not interfere with any particular parenting time plan, just firmly vests the legal status in the U.S. parent. If the foreign national parent chooses to move to another jurisdiction, then all parenting time with that parent should be required to occur in the home jurisdiction. While many may consider this harsh, it is far less harsh than losing a child to a foreign country, with no hope or at least very little hope of recovery.
In all cases, both pre- and post-decree, it is imperative that if the child is taken that the left-behind parent must immediately file a missing child report with the local police and immediately get an attorney to file for an ex-parte emergency custody order and for a writ to take the child into custody when found. The wording of the writ, or pick up order, is very crucial because it must be directed to all law enforcement and not just the local jurisdiction. The instructions in the writ must be concise and clear and not subject to interpretation. The writ should be separate, not just wording in the temporary emergency order. I have, at one time or another, assisted counsel in preparation of this document for cases in almost every jurisdiction in the U.S. Our suggested writ language has uniformly been adopted. However, while it strengthens a case technically, it is of little use if the foreign parent is able to have time to actually flee the country.
In all jurisdictions, custodial interference is a felony; and the parent is able to obtain a warrant almost immediately. There should be no delay in following these steps the minute a parent discovers that the other parent has fled or is concealing the child. Contact should be made immediately with the foreign consulate and all documents should be provided, along with a request that a foreign passport not be issued for the child. I advise parents not to attempt these consulate contacts on their own but rather avail themselves of a professional’s intervention. Self-help by the parents is absolutely not a good approach and only leads to delay.
The next step would be considering using the “do-not-fly” list, flagging the child with Interpol, seeking a federal warrant and appropriately using media releases. It is a good idea to be armed with these remedies or at least the knowledge that they exist. Time is of the essence. Except for contacting the foreign consulate, the rest of these steps should be taken immediately even if the abduction is within the U.S. or one of its territories. However, even in interstate abductions the state department flags should be put in place just in case a parent manages to flee the continental U.S. The most frequent “stop over” today for fleeing parents is American Samoa, so having the paperwork already available is, once again, imperative. Prevention is the key word and should be pursued aggressively by legal counsel.
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