Flight Risks in a Divorce

Flight Risks in a DivorceMost parents who are in a co-parenting situation because they are unmarried, separated, divorced or going through the process are able to arrive at suitable custodial and visitation arrangements, but there are cases where there is considerable animus and conflict between the parties. In some of these situations, a parent will resort to abducting the child and hiding out in another state or country. According to the U.S. Department of State, there are an average of over 200 child abductions in this country every day.

There are also divorce matters where the issue is one of substantial assets that one party is extremely reluctant to part with, even where there is a court order giving possession to the other spouse. A party who fears or has been ordered to relinquish a portion of those assets may instead flee to another country with assets in hand.

Protective Orders

If a divorce action has just been initiated, then it will issue temporary orders regarding custody and visitation. You can also ask for a temporary order specifying your custody rights that can include travel restrictions. If violated, there are federal laws that apply to interstate custody issues. If the parent has snatched the child and left without permission and crosses state lines, that parent is subject to the Federal Fugitive Felon Act and a warrant will be issued.

Parties who flee a divorce action will usually end up with a default judgment against them. If they fled overseas and certain assets are now in a foreign country, you will need experienced international lawyers if you want your interest in those assets returned. This can be a long, complicated and expensive process, unfortunately. Of course, if the spouse ever tries to reenter the U.S, he or she faces possible criminal sanctions.

Who Presents a Flight Risk?

Courts have looked to certain factors in determining whether a parent or spouse poses a flight risk that may necessitate restrictions or a type of protective order:

  • Age of the children–most abductions involve children who are 6-years of age or younger
  • A parent with mental health issues
  • The parents were never married to one another
  • Previous threats of abduction
  • A parent or spouse is a foreign national with substantial connections to a country other than the U.S.
  • The parent or spouse has dual citizenship
  • Anger towards the other parent regarding unsubstantiated allegations of abuse
  • A parent or spouse has limited financial or emotional connections to the community where the child has primary placement
  • A party has shown defiance or indifference to the law or the court’s authority
  • A parent is concerned about violence or child neglect by the other parent

If there is a remote possibility of abduction or flight, the court might consider restrictions on travel.

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

There have been conflicting interpretations and enforcement actions taken by states in cases where one parent has abducted or kidnapped a child and taken him or her across state lines or to another country. In some cases, that parent will try to get a custody order in the new state. The UCCJEA was enacted to make it easier for states to enforce its existing custody orders in other states if that state had jurisdiction to issue the original order. The Act also protects victims of domestic violence who moved out of the state because of safety concerns.

Another act is the Parental Kidnapping Prevention Act that also addresses and governs the wrongful taking of a child across state or international borders and which makes it a federal offense to wrongfully remove a child from the U.S. But only those countries who are signatories to the “Hague Convention on the Civil Aspects of International Child Abduction” have some obligation to respect orders issued by American courts, However, even those countries may have their own compliance issues, especially if one party is a citizen of that country.

There are also some restrictions regarding the Hague Act:

  • It only applies to children under age 16
  • It is only applicable for one year following the wrongful removal of the child
  • It is inapplicable if the party or parent has fled because of domestic violence or an abusive situation

Traveling With Your Child

For travel or trips in-state, to another state or overseas, the parent needs to give reasonable notice to the other parent. Hopefully, the parties will have anticipated such trips in its custody or settlement agreement and detailed how such trips will be conducted including maintaining contact with the other parent.

For overseas traveling, passports are required for all travelers leaving the US and if the child is under 16, the child needs to appear in person and have the permission of both parents. A birth certificate or document of adoption is required showing that the parties are the parents of the child seeking the passport.

Should a parent object to the child obtaining a passport or traveling abroad, then the other parent can request an order from the court. If the refusal to consent is unreasonable, the court will grant the order allowing the child to obtain a passport and require the parent to sign a Statement of Consent.

If the child has a passport but the objecting parent raises concerns about abduction, the court can order that the child’s passport be kept in escrow or in the possession of the objecting parent. If the objecting parent has the passport and his or her objection is not deemed reasonable, then that parent may be ordered to turn over the passport.

In situations where a parent is aware that the other parent may want to travel abroad with the child, then the parent may wish to ask the court to either deny the travel, if there are reasonable concerns regarding abduction, or at least impose restrictions such as the places the traveling parent and child may go and for how long they may be gone. The parent may be required to provide a detailed travel itinerary and contact information for the other parent. These restrictions may also apply for trips in-state or to another state if there is no prior agreement on travel or if a parent has concerns about possible abduction.

If no order has been been made regarding the passport or travel issue, the objecting parent can contact an agency in the U.S. State Department called the Children’s Passport Issuance Alert Program. In the event the parent attempts to obtain a passport for the child, the State Department will deny the application and alert the objecting parent.

However, if a parent has sole legal custody, then the other parent’s consent to obtain a passport for the child is not required once the parent presents a court order confirming that he or she may obtain the passport without the other parent’s consent.

Of course, one way to handle these issues is to have a provision in your custody or divorce settlement where the parties agree to waive any objection to overseas travel or to obtaining a passport. But again, if abduction becomes a legitimate concern, then a court order may be considered.

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