1 Family Abduction: Prevention & Response(Presented at OJAG Training Symposium - LA for Victims of Sexual Offenses and Other Crimes - Aug 15) Preston Findlay Counsel, Missing Children Division
2 Family Abduction Background Prevention International AbductionsResources and Support Example Scenarios
3 National Center for Missing & Exploited ChildrenBackground NCMEC National Center for Missing & Exploited Children Nonprofit organization opened in 1984 Encourage Public and Private partnership for a national response to the problem of missing and sexually exploited children Operate a missing child hotline and function as a national clearinghouse for information Among other services, NCMEC performs 22 specific tasks identified in federal legislation (42 U.S.C. § 5773)
4 Background Statistics & Characteristics (General)Source: U.S. Department of Justice, OJJDP, National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children (NISMART-2), Children Abducted by Family Members: National Estimates and Characteristics, October 2002, pgs. 5-6.
5 Background Statistics & Potential for Harm (General)Source: NISMART-2, Children Abducted by Family Members: National Estimates and Characteristics, page 8, and NCMEC 2013 AMBER Alert Report, page 11 (www.missingkids.org/amber)
6 Background Statistics & Trends (International)Source: Hague Permanent Bureau, A Statistical Analysis of Applications Made in 2008 Under the Hague Convention, Global and National Reports U.S. State Department Office of Children’s Issues 2012 Outgoing and Incoming Case Statistics childabduction.state.gov
7 Background Statistics & Possible Future TrendsU.S. Census Bureau - “Overall, the percentage of all children living in the United States with at least one foreign-born parent rose from 15 percent in 1994 to 24 percent in 2012.” Source: U.S. Census Bureau, Current Population Survey, America's Children: Key National Indicators of Well-Being, 2013 Family and Social Environment -
8 Prevention Overview Identifying Risk Agency AssistancePractical Legal Identifying Risk Agency Assistance Creative Solutions Proving Risk Court Assistance Creative Solutions
9 Practical – Identifying RiskPrevention Practical – Identifying Risk
10 Practical – Agency AssistancePrevention Practical – Agency Assistance
11 Practical – InternationalPrevention Practical – International childabduction.state.gov
12 Practical – “Prevent Departure” ProgramPrevention Practical – “Prevent Departure” Program childabduction.state.gov Department of State Office of Children’s Issues Prevention Branch
13 Practical – “Prevent Departure” Program Requirements for program:Prevention Practical – “Prevent Departure” Program childabduction.state.gov Requirements for program: “may be unable to prevent an abduction without a valid court order clearly prohibiting the child’s travel outside the United States.”
14 Country-Specific RiskPrevention Legal – Proving Risk Person-Specific Risk (Risk related to abduction itself) Country-Specific Risk (Risk related to likelihood of return) Personality Profiles “Red Flag” Indicators Previous Abduction or Threats History of Instability, Violence, or Abuse Planning Activities Citizenship, Immigration, Residency, and Status “The more of these factors that are present, the more likely the chance of an abduction. However, the mere presence of one or more of these factors does not mean that an abduction will occur just as the absence of these factors does not guarantee that no abduction will occur.” -Comment to Section 7, Uniform Child Abduction Prevention Act (UCAPA) Hague Signatory Compliant? Extradition or other Treaty Parental Abduction considered a crime? Legal System Basis for Recognition of U.S. Order? Presumptions or biases that conflict with U.S. standards?
15 Legal – Proving Risk (Evidence)Prevention Legal – Proving Risk (Evidence) Testimony Documentary Fact Witnesses Family Law Enforcement Employer Expert Witnesses Country-Specific Legal/Risk Discoverable Financial Records Phone Travel Plans Reports/Treatises/Translations State Department Hague Compliance Report Solicited Information Passport Requirements Travel, Entry, Exit Requirements Dual Citizenship Recognized?
16 Legal – Proving Risk (Evidence)Prevention Legal – Proving Risk (Evidence) Practical Note regarding Evidentiary and Procedural Rules: In re Sigmar, 270 S.W.3d 289, 302 (Tex.App.–Waco, 2008) “Matters of legislative fact or of other non-adjudicative fact are subject to judicial notice…. As to them, judicial notice instead of record evidence is the rule rather than the exception, and indisputability is not required to justify judicial notice…. Evidence regarding the legal practices and procedures of a foreign country are legislative facts.” “Accordingly, we hold that facts regarding another country's compliance with the Hague Convention on the Civil Aspects of International Child Abduction, or whether that country poses obstacles to the prompt return of a child taken there or poses risks to the child's safety are legislative facts about which a trial or appellate court may take judicial notice without prompting by the parties.”
17 Court Orders – Example ProvisionsPrevention Court Orders – Example Provisions Findings & Conclusions Civil & Criminal Warnings Location and Itinerary Pre-scheduled contact Restricting Travel Documents Notification to Foreign Authorities Prior Permission for Movement Custody Bond Pre-registration or Mirror Order Prohibition of Removal Absolute Geographic Restrictions Supervision Sole Custody Least Restrictive Most Restrictive
18 Court Orders – Legal IssuesPrevention Court Orders – Legal Issues Least Restrictive Most Restrictive Not all provisions are obvious: Hague-specific language Existence (or lack of) domestic violence Directions for law enforcement Criminal or Contempt Warnings Enforceability Evidence of Knowledge or Intent Location information and Contact Likely not appropriate in DV situations Constitutional issues Travel Documents Restrictions on Adult Restricted custody/possession may not be available or trigger appellate rights
19 Legal Authority for Court OrdersPrevention Legal Authority for Court Orders Bonds Beil v. Bridges, 1993 Ohio App. LEXIS (Ohio Ct. App. December 22, 1993) Davis v. Davis, 1992 Ohio App. LEXIS 1074 (Ohio Ct. App. 1992) Carpenter v. Reiboldt 1983 Ohio App. LEXIS (Ohio Ct. App. June 23, 1983) Restricting Visitation Al-Silham v. Al-Silham 1995 Ohio App. LEXIS 5159 (Ohio Ct. App. Nov. 24, 1995) Beil v. Bridges 1993 Ohio App. LEXIS (Ohio Ct. App. December 22, 1993)
20 Examples of Creative Solutions Utilize Criminal/Justice SystemPrevention Examples of Creative Solutions Agreements Utilize Criminal/Justice System General Benefits Specific stipulations Parental Fitness Violence or Abuse (or lack of) Agreement regarding Jurisdiction and Habitual Residence Evidence documenting knowledge of civil and criminal penalties for violation Potential Pitfalls Pending Criminal Charges ? Current Community Supervision ? Existing Orders of Protection ? Consider seeking assistance from Probation Office, Prosecutor, Bondsman, or Court
21 Legal Response to Domestic Abduction (Basics)Pre-Decree Abduction Post-Decree Abduction File for custody in Home State Service on Taking Parent Locate, Register (if necessary), and Enforce Request appropriate modifications, clarifications, or additional orders Locate, Register, and Enforce
22 Legal Response to Domestic AbductionSpecial Circumstances Left-Behind parent is non-custodial or unestablished father Flight Risk or Child Endangerment Expedited/Simultaneous Registration and Enforcement? Warrant to Take Physical Custody? Bypass Registration altogether and contact Law Enforcement? Enforcement will generally require clear, identifiable visitation or custody right Separate or combined action for paternity May affect possibility of criminal charges (if statute requires intent to violate court order), or law enforcement’s willingness to become involved at all
23 Legal Response to Domestic AbductionSpecial Circumstances Left-Behind parent has moved from Home State or waits longer than 6 months to seek assistance Possible Solution: Re-establish residency in home state prior to filing Request jurisdiction based upon likelihood or possibility that abductor or child are still in Home State, or request the court accept default jurisdiction -Purpose of Act includes ensuring a party doesn’t benefit from negative behavior
24 Legal Response to International Abduction (Basics)Hague Convention Country Non-Hague Country Treaty Civil Remedies Criminal Remedies Mediated or Agreed Resolution Treaty Civil Remedies ? Criminal Remedies ? Mediated or Agreed Resolution ?
25 Legal Response to International Abduction (Specifics)Hague Convention Country Actions Treaty Gather materials File Application Chasing Order Potential Issues Rights of Custody Treaty Compliance and Process Cost, Time, Delay
26 Legal Response to International Abduction (Specifics)Hague Convention Country Actions 2) Civil Remedies Chasing Orders Seek Registration/Enforcement Law Enforcement Investigation Potential Issues Cost, Time, Delay Jurisdiction, Service Comity or Enforceability
27 Legal Response to International Abduction (Specifics)Hague Convention Country Actions 3) Criminal Remedies Gather materials Contact State and/or Federal Authorities to file complaint Locate/Arrest/Extradition Potential Issues Proof, Knowledge, Intent, Elements Prosecutorial Discretion Extradition Adult Fugitive v. Child Recovery
28 Legal Response to International Abduction (Specifics)Hague Convention Country Actions 4) Mediated or Agreed Resolution Maintain Contact Formal Negotiation/Mediation Informal Agreement Potential Issues Cost, Legal Representation Leverage Suitability for situation Enforceability of agreement
29 Legal Response to International Abduction (Specifics)Non-Hague Country Potential Additional Issues Treaty Civil Remedies Criminal Remedies Mediated or Agreed Resolution Recognition of Harm Conflicting Domestic Law Religious/Cultural Presumptions Priorities Extradition or Dual-Criminality Leverage
30 Legal Response to International AbductionChild brought into United States Notes Regarding Incoming Cases: U.S. refused a provision of treaty (Article 26) requiring destination country to provide free legal representation for applicants. Legal Aid may still be able to accept cases of foreign nationals based on VAWA or other exceptions. UCCJEA may also be an option for post-decree abductions. Supreme Court Cases: Abbott v. Abbott – Ne exeat rights Chafin v. Chafin – Appellate Jurisdiction Lozano v. Alvarez – Equitable Tolling
31 Military Specific Issues
32 Military Specific IssuesFamily Care Plans & Preparation/Prevention Compliance with Court Orders
33 Additional Resources and Support
34 1-800-THE-LOST ( )