What To Do Before and After
From – The St. Louis Bar Journal
By: Leigh Joy Carson
Every family law practitioner faces the possibility of dealing with the abduction of a child by a family member. It is one of the most stressful situations imaginable for the parent left behind, and it is time consuming and emotionally draining for the attorney. Planning, both before and after the abduction, is crucial. This article will address precautions to consider in situations where kidnapping is feared and options when abduction has occurred.
Whenever a client expresses concern about the possible abduction of a child by the other parent, the first order of business is to assess the seriousness of the threat. There are several factors to consider. First, consider any threats that have been made by the other parent to take the child. Get as much detail from the client about the threat as possible. The attorney must be sure to understand the context in which the “threat” was made and the detail given. A shouted statement by a parent just outside of the courtroom that he intends to take the children to live in Los Angeles, California where his best friends live is much different than a hysterical parent wailing that if she loses custody she will go as far away as possible with the children and your client will never see them again, and both of those situations are completely different than a parent who leaves a message for your client calmly stating that she will never see the children again as he is going to Germany, because he is a German citizen. Of course, the last situation should cause the most concern.
If persons other than your client heard the threat to kidnap the child, talk to them without your client present. If there has been litigation concerning custody of the child in which there was a guardian ad litem, talk to that attorney. If there was a social worker or CASA worker, talk to them as well. Remember that there is no privilege between the guardian ad litem and either parent or the guardian ad litem and the child, the parent and the social worker or the parent and the CASA worker.1
Second, examine the suspected parent’s behavior and apparent respect for rules. A history of not paying taxes, of using false names or taking other measures to evade creditors, criminal convictions (or even arrests), an unstable job history or a pattern of disrupted personal relationships are all a cause for concern, as are repeated instances of non-compliance with the provisions of judgments (not limited to the custody judgment). It is also helpful to consider the other parent’s conduct during litigation. Step back and assess whether that litigant was merely difficult or, more importantly, unusually resistant to following the rules and respecting the authority of the court.
Third, explore whether kidnapping the child is financially realistic for the suspected parent. Consider whether the suspected parent has the financial means to support himself or herself and the child or has friends or family that will help to do so. Remember, however, that a parent who believes that a child is being abused may not assess this consideration in a realistic way. Further, a parent who does not value material possessions or lives a Spartan lifestyle may be willing to flee with the child even under the most dire of financial circumstances.
Finally, consider the allegations made by the other parent about your client. A parent who suspects abuse, particularly sexual abuse, may be prepared to make almost unimaginable sacrifices for the child to prevent what is perceived as a mortal threat from your client. Many parents who believe that a child has been or is being abused see no alternative. Be particularly suspicious of a parent who accepts the report of an evaluating professional only under great pressure from the court, the guardian ad litem or his or her own attorney. Contrast this with a parent who greets a diagnosis of no abuse with relief.
Whether you agree that a client’s fear of kidnapping by the other parent is well founded, the same advice should be given. There will be no harm from following your recommendations to the client whose child is not snatched, and taking these precautions may give the client whose child is kidnapped an advantage in the effort to secure the return of the child.
It is essential that the client have a clear, recent photograph of the child. With a young child, a school picture taken in the fall will not be sufficient in the spring or summer. With older children, dramatic changes in hair color or style may nullify the utility of a school portrait. Likewise, a list of distinguishing marks such as visible moles or other skin discolorations, scars, birthmarks or tattoos is essential. Any physical differences that the child exhibits (e.g ., a limp, a twitch, a stutter or other speech impediment) must be carefully noted. The client should have an up-to-date notation of height and weight of the child and ideally will also have a full body photograph.
Many police departments offer fingerprinting of children and all clients should take advantage of that opportunity. For many children, a tour of the police station and being fingerprinted will be a fun experience. Of course, the child should not be told that the reason for the fingerprinting is a fear of abduction.
As basic as it seems, the client should know the social security number of the child and the other parent. Of course, the client should always have a certified copy of the judgment containing the terms of custody available, and the social security numbers of the parents and the child should be noted in that document.2
If possible, the client should keep a list of the names and last known telephone numbers and addresses of family members and friends of the other parent who might provide assistance to the abducting parent in secreting, transporting or supporting the child. Some of the people on that list may not approve of the kidnapping and therefore may provide assistance to your client.
The client should be aware of third parties who show an increased or unusual interest in the child, whether at school, at daycare, at sporting events or in the neighborhood. The client should keep note of that person’s identifying information (name, address, appearance). As the attorney, you should offer to have a criminal record check performed on any person about whom your client has concerns.
In every case in which the client has a concern about kidnapping, he or she should contact the United States State Department to “flag” the child’s passport. If such action is taken by the custodial parent and the child does not have a passport, a request for a passport will be denied absent a notarized consent from the client. If the child does have a passport and it is flagged by the custodial parent, the child will not be allowed to leave the United States without signed documentation from the client. This is not foolproof, however, as the checking that is done at the United States-Mexico border is sporadic and although the Canadian authorities have grown much more conscientious, there is no assurance that a child whose passport has been flagged will be stopped by Canadian authorities.
A practice pointer: remember that the state courts have no authority to order the federal government not to issue a passport to a child. Rather, the proper remedy to request is an order directing the other parent to request a passport (or, if your client wishes to take the child out of the country and needs a passport that has been flagged, you need a court order compelling the other party to release the passport). The trial court in the City of St. Louis has held that even a parent with sole legal custody cannot refuse to cooperate in the child obtaining a passport without a showing of a ” clear and present danger” to the child by the issuance and use of a passport.3
Kidnapping is a crime. Suspected kidnapping must be reported to the authorities immediately. Both the local police where the client lives, where the other parent lives and where the child may be and the Federal Bureau of Investigation must be notified. Even if the police tell you or the client that they will contact the FBI when it is deemed by them to be appropriate, the FBI should be called. The involvement of the FBI is too important to risk the note to call being lost on someone’s desk. You and your client will be sure to make the call.
The client should specifically request the police to put out a “Be On the Look Out” or “BOLO” bulletin. The client should also ask that the child be entered into the National Crime Information Center Missing Persons File. There is no waiting period for children under the age of 18 to be included on this list. The client should ask the police to contact the National Center for Missing and Exploited Children to issue a “broadcast fax” to law enforcement agencies all over the country notifying those authorities of a kidnapped child.
Finally, the police, prosecutor or a judge may request that the Office of Child Support Enforcement, Federal Parent Locator Service be utilized to find the abducting parent. Neither you nor your client can ask for this help: the request to use this service must be made by a specifically authorized person such as a prosecutor, police officer or judge.
The client should immediately contact the National Center for Missing and Exploited Children. This is an extraordinarily helpful clearinghouse of information and support, and they can assist with distribution of a photograph of the child (including on their website).4 They can also make referrals to local agencies that can help.
The client should talk to local law enforcement about enlisting the assistance of the media. If the police are not helpful in that regard, call the media yourself or have the client call. Do not limit your appeal: call the television stations, the radio stations and the newspapers. There is no guarantee that the media will be interested in your client’s story but if you do not try, you will not know. Speak to the assignment desk unless there is a reporter you have seen who appears to have an interest in children’s issues. In that case, speak to that reporter. Simply call the station or the paper and ask to speak to that person. Very few reporters screen their calls, and many answer their own phone.
The simplest kidnapping is a refusal to return the child after scheduled visitation or temporary visitation. The client knows where the child is, but the other parent refuses to return the child. If it is during the school year and the child goes to school, the client should pick up the child with or without the police and proceed to court to obtain injunctive relief. Of course, this also constitutes contempt, and remember that the court has the power to affect the custody provisions of a judgment in a contempt proceeding.
If the client is unable to secure the child, an application should be made for a writ of habeas corpus and/ or a warrant in lieu of writ of habeas corpus. Remember that a writ of habeas corpus is an order to “produce the body” and the proceeding is one in which the person with custody of the child is ordered to appear, with the child, and show cause why the child should not be returned. Such cause may be that the child will be abused or kidnapped if returned, and if your client is the one withholding the child, he or she should have as much evidence as possible to sup- port his or her position, including a call to the child abuse hotline and medical or psychological evaluation and/ or treatment of the child.
If the client is concerned that the parent who has the child will disappear after being served with a writ of habeas corpus, a request may be made for a warrant in lieu of writ of habeas corpus. Such an order requires the immediate pick-up of the child by law enforcement authorities. If such an order is sought, be certain to coordinate with law enforcement and child welfare officials in the jurisdiction where the warrant is to be executed. It is likely that the police will not take custody of the child, so the juvenile court and the local Division of Family Services should be part of the planning process for service and execution of the warrant.
The failure or refusal to return a child at the end of court-ordered visitation or temporary custody constitutes the crime of interference with custody of there is a court order regarding custody in place5 and you should talk with the warrant officer in the county where the incident occurred about whether charges will be filed. In many jurisdictions, such charges are unlikely to be filed. You should know the general guidelines followed in the counties where you practice so the client does not develop unrealistic expectations about criminal prosecution. The warrant officer in the county where your client lives will be able to answer your questions or direct you to the person who can.
The refusal to return a child at the end of temporary custody or visitation can be the basis for an order that the non-custodial parent’s rights be supervised and the refusal to produce the child for temporary custody and visitation can be a basis for a transfer of primary custody. Advise the client to keep detailed notes of such events, irrespective of whether the parent is seeking time with the child or withholding it. Of course, the preferred reaction to concerns about the other parent having time with the child is to proceed to court and seek appropriate relief. A client who attempts to obtain legal relief for his or her concerns about the child spending time with the other parent and loses should be advised in detail of the ramifications of kidnapping or withholding the child, including possible criminal charges, contempt and/ or modification of the custody order.
Perhaps the most challenging kidnapping cases are those that involve the taking of the child to a foreign country. The Convention on the Civil Aspects of International Child Abduction, Done at The Hague on 25 October 1980 and the International Child Abduction Remedies Act (commonly known as the “Hague Convention” and so referenced here)6 provide detailed rules for the filing and pursuit of a request for return of a child who has been taken to a country that is a signatory to the Hague Convention.7
This treaty, to which the United States and a number of other countries are signatories, covers situations where a child has been removed from one member country to another. Once the child has been located, a determination must be made if the country where the child is located is a signatory to the Hague Convention. If the child has been taken to a country that is not a signatory, the State Department can make a referral to an attorney in that country who may be able to help. If the United States has any sort of diplomatic relations with the country where the child is believed to be, the embassy or other officials in that country may be able to help with such a referral.
If the precise location of the child is not known but it is believed that the child has been taken beyond our borders, the difficult first step is locating the child. Local law enforcement can report the child as missing to INTERPOL and request a search. The United States Passport Control8should be contacted to determine whether a passport has been issued for the child and the wrongful taking of the child reported. The local prosecutor has the authority to request the United States Postal Service to trace the source of mail sent by the abducting parent to addresses in the United States.
Assistance in international kidnapping cases is readily available through the State Department.9 The beginning of the request for return of the child under the Hague Convention is a contact by the State Department to the “Central Authority” in the country where the child is believed to be located. The identity of the “Central Authority” varies from country to country. This is a formal procedure that must be initiated and then followed through on by the United States government.
The United States State Department has an Office of Children’s Issues that can perform a “welfare and whereabouts” visit once the child is located to assess the well being of the child. While this does not directly relate to the return of the child, if conditions warrant, local child welfare authorities may take custody. Such an action may facilitate the return of the child and certainly prevents further movement of the child. Finally, this offers some reassurance to the client.
There are four defenses to return of a child under the Hague Convention: (1) the wrongful removal of the child took place more than twelve (12) months prior to the commencement of the proceedings seeking return; (2) the parent seeking the return of the child was not actually exercising custody rights (this includes primary custody, temporary custody or visitation) at the time of removal; (3) a ” grave risk” to the child from being returned (this is not interpreted to be danger from the parent seeking return but danger from genocide or war), such risk shown by clear and convincing evidence; or (4) the child is more than sixteen (16) years of age.
When a child is kidnapped, it is frightening and anxiety-producing for both client and attorney. There are tremendous resources available in our community, and both attorney and client should avail themselves of those, without undue concern about the expected efficacy of any one avenue. The resources should be ranked in terms of expected usefulness by the attorney and the client given explicit directions regarding the course of action that you advise. To effectively represent a client whose child is taken by the other parent, the keys are to educate yourself and your client, plan your attack and attack your plan.
1. § 491.060, Mo. Rev. Stat.
2. A practice pointer: be certain to include the social security number of the child in the judgment. While it is required, often attorneys simply write “unknown” and this may cause a waster of valuable time in the event the child is taken.
3. Fondell (f/n/a/Telmet) v. Telmer, MLW no. 26409, opinion by Judge Robert Dierker, Jr. of the Circuit Court for the City of St. Louis dated May 5, 2000
5. § 565.150, Mo. Rev. Stat.
6. 42 U.S.C § 11601, et seq.
7. The signatory countries are presently: Argentina (June 1, 1991), Australia (July 1, 1988), Austria (October 1, 1988), Bahamas (January 1, 1994), Belgium (May 1, 1999), Belize (November 1, 1989), Bosnia & Herzegovina (December 1, 1991), Burkina Faso (November 1, 1992), Canada (July 1, 1988), Chile (July 1, 1994), China (Hong King Special Administrative Region September 1, 1997, Macau March 1, 1999), Columbia (June 1, 1996), Croatia (December 1, 1991), Cyprus (March 1, 1995), Czech Republic (March 1, 1998), Denmark (July 1, 1991), Ecuador (April 1, 1992), Finland (August 1, 1994), France (July 1, 1988), Germany (December 1, 1990), Greece (June 1, 1993), Hungary (July 1, 1988), Iceland (December 1, 1996), Ireland (October 1, 1991), Israel (December 1, 1991), Luxembourg (July 1, 1988), Macedonia (December 1, 1991), Mauritius (October 1, 1993), Mexico (October 1, 1991), Monaco (June 1, 1993), The Netherlands (October 1, 1991), New Zealand (October 1, 1991), Norway (April 1, 1989), Poland (November 1, 1992), Portugal (July 1, 1988), Romania (June 1, 1993), Slovenia (April 1, 1995), Spain (July 1, 1988), Sweden (June 1, 1989), Switzerland (July 1, 1988), The United Kingdom (Bermuda March 1, 1999, Cayman Islands August 1, 1998, Falkland / Malvinas Islands June 1, 1998, Isle of Mann September 1, 1991, Montserrat March 1, 1999), Venezuela (January 1, 1997) and Zimbabwe (August 1, 1995). The Hague Convention does not apply to abductions occurring prior to the effective date in the country where the child is located (in parentheses above).
8. Phone (202) 326-6168; Department of State, Office of Citizenship Appeals and Legal Assistance, Room 300, 1425 D Street NW, Washington, D.C. 20524.
9. The State Department offers an excellent informational pamphlet titled: “International Child Abduction” that is available for no charge by contacting the State Department at the telephone number and address set forth above. The American Bar Association publishes a book titled: “International Child Abduction A Guide to Applying the Hague Convention with Forms” edited by Gloria DeHart that is an excellent resource in handling a Hague case.