Often fueled by intense parental sentiments, custody disputes
rank high among the fiercest of legal battles known to jurisprudence.
Corollary issues concerning parenting time and post-divorce travel
abroad with a child have gained increasing judicial scrutiny in
an ever-changing complex and divisive world.
For matrimonial practitioners the first question concerning a parent’s prospect to travel with a child abroad is whether the country of destination is a signatory to The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).
To date the Convention has been adopted by more than 100 countries. Its focal purpose is to remedy the jurisdictional nightmares characteristic of international child abductions and custody litigation. The Convention does this in part by declaring that the “habitual residence” of the child is the only proper jurisdiction to adjudicate the custody dispute on its merits. The Convention then directs the expeditious return of the child to the proper “habitual residence”. The return of the child is secured through the “central authorities” established pursuant to the Convention in each of the signatory countries. In the event of a dispute, the Convention controls for purposes of jurisdiction. Thus, if the child is located in a signatory country, the signatory country is obligated to return the child to his/her habitual residence. On the other hand, if the country in which the child is located is not a signatory to the Convention, in the absence of any other international treaty mandating otherwise, that country is not obligated to return the child. In such case, the left behind parent must petition the foreign courts for the return of the child and, more often than not, is obligated to litigate custody on the merits abroad, thus embarking on a journey inherently plagued by great difficulty and uncertainty.
Notwithstanding the inherent difficulties encountered in a case of abduction of a child in a non-Convention country, the authors of this article believe that courts should not adopt a blanket prohibition against travel with a child to such a country. Bright line rules in fact sensitive cases, as most custody determinations are, tend to be harsh and arbitrary. They are likely to circumvent the paramount best interests analysis mandated by our well established custody jurisprudence.
The balance of this article is divided into three sections. Section I discusses several out of state decisions from jurisdictions faced with allegations of “likely abductions” to non-signatory countries. Section II examines a recent New Jersey appellate decision declining to adopt a bright line rule prohibiting such travel abroad. Section III sets forth the common principles emanating from the case law and presents the authors’ recommendations and suggestions to institute a more uniform and coherent approach to these types of cases.
Section I.
Several states have addressed the propriety of permitting travel abroad with a child over the other parent’s objection.
Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10 (Minn.App. 1992), focused primarily on whether the court should impose supervised visitation. Significantly, in Al-Zouhayli the father never sought to travel abroad with the child. To the contrary, he testified that he did not intend to do so.
The Minnesota Appellate Court held that mother had to show a strong probability of abduction, not merely that an abduction was likely, to require the Court to order supervised visitation.
In Al-Zouhayli, the father was born and brought up in Syria. He left Syria at age 18. The parties married in December 1983, and settled in Minnesota in 1984. The father became a naturalized citizen of the United States but also retained his Syrian citizenship. The parties' son, born March 22, 1989, had dual United States and Syrian citizenship.
At trial, the mother sought a permanent order of supervised visitation because she feared the father would abduct the child to Syria or Saudi Arabia.
The trial court found that prior to the separation the father had expressed his intent to return to Syria or to emigrate to Saudi Arabia and that the father made a statement in the past that his child would never be raised by another man and that he would have his child regardless of what the court ordered. The trial court also found that the father was dishonest.
Despite such factual findings, the trial court found that mother failed to carry her burden to prove by a preponderance of the evidence that the danger of abduction was so high that supervised visitation should continue. As such, the trial court awarded unsupervised visitation to the father but prohibited him from taking the child out of state. The Court of Appeals affirmed and held the likely unwillingness of the non-custodial parent's native country to enforce the trial court's custody order is not controlling.
In Long v. Ardenstani, 624 N.W.2d 405 (Wisconsin Court of Appeals 2001), the Court held that the parent objecting to the child’s travel outside the United States to a non-Hague country, bears the burden to prove a likelihood that the child would not be returned home.
In Long, the mother filed a motion to prohibit the father from traveling to Iran with their minor children. The father was born in Iran and moved to the United States in 1978 when he was twenty-eight years old. The parties were married in 1980 and had four children. The stipulated judgment of divorce provided that the parties would have joint legal custody of the four children. The mother had primary physical custody. The father had liberal visitation.
The agreement provided that in the event the father desired to take the children outside of the United States, he had to give the mother sixty days notice of his intention, so as to permit the mother to make a post judgment application to prohibit the travel. In November 1999, the father notified the mother that he intended to take the children for vacation to Iran. The mother filed a motion with the court to prohibit his taking the children abroad. She alleged that the father had threatened to keep the children in Iran, a country which did not accede to the Hague Convention and which did not have diplomatic relations with the United States. The mother also argued that under Iranian law, custody is determined through a gender and age specific criteria, not according to the child’s best interests. The mother further argued that because she was not Muslim, it was more than likely that the father would obtain custody and the children would never be returned to the United States.
In response to the mother’s concerns, the father testified that he would do whatever is necessary to guarantee the return of his children to the United States, including signing over his pension as security.
The Court held, as a matter of law, that the mother had to show more than a genuine fear that the father would keep the children abroad. The mere possibility of retention of the children in Iran was not sufficient to prohibit the travel abroad. The Court noted whether the country of destination is a signatory to the Hague Convention is only one of the factors to be considered as part of the general best interests standard: The virtue of the best interests standard is that it permits the trial court to take into account all facts and circumstances bearing on the best interests of the particular child, and we view an attempt to define what those might be in a general category of cases as neither necessary nor fruitful.
The Court permitted the travel abroad. Interestingly however, as a measure of protection, the Court gave the mother the opportunity to secure the father’s execution of all documents necessary to grant the mother a security interest in the father’s pension rights pending the return of the children.
In Re Marriage of Jawad and Whalen, 759 N.E.2d 1002 (Illinois Appellate Court, 2001), the Court held that the evidence presented was insufficient as a matter of law to establish that the father was at risk to abduct the parties' children and flee to a non-Hague country.
In Jawad and Whalen, the father was born in Iraq and came to the United States in 1980. He subsequently became a citizen of the United States. The parties were married in August 1993. Three children were born during the marriage.
During the divorce litigation, the trial court awarded the father parenting time alternate weekends. The court specified that parenting time was to be exercised within the state. In 2001, the mother filed an emergent application seeking a temporary restraining order and a preliminary injunction based on the allegation that there was a substantial risk that the father would abduct the parties' children and take them out of the United States. The mother further alleged that the father threatened to remove the children from this country and that he purchased a home in Iraq. The trial court denied the mother’s application for supervised visitation but restrained the father from removing the children outside of Illinois.
After hearing testimony, the trial court found that the mother did not demonstrate a risk that the father would abduct the children. To the contrary, the court found that several factors militated against the possibility that the father might abduct the children: the father, a United States citizen, had been in the United States for over 18 years; the father would have difficulty applying for an Iraqi passport because the United States does not have diplomatic relations with Iraq; the father would be would be in danger if he returned to Iraq because he did not serve in the Iraqi armed forces; finally, the father had actively participated in the court proceedings and had complied with the visitation order for 18 months.
The Court of Appeals affirmed and concluded:None of the evidence appearing in the record directly supports a finding that the children are at risk of abduction. Lacking such a showing, we do not believe that the trial court abused its discretion in denying the request for supervised visitation. We note that, notwithstanding the denial of supervised visitation, the trial court nonetheless prohibited the parties from taking the children out of the state. On the basis of the evidence before us, we believe that such an order will sufficiently preserve the status quo pending a resolution of the remaining issues in this dissolution proceeding.
Section II.
In Abou-Zahr v. Abou-Zahr, 361 N.J.Super. 135 (App.Div. 2003), the New Jersey appellate court declined to adopt a bright line prohibition against visitation abroad by a parent to a country which is not a signatory to the Hague convention. Significantly, the Court enunciated a list of factors to be considered in similar cases.
In Abou-Zahr, the parties were married in 1986 in Missouri. The father was a citizen of Lebanon. He came to the United States in 1984 to complete his medical studies. During his studies in the United States, he met the mother, a United States citizen. After their marriage, they both became dual citizens of the United States and Lebanon. Their daughter was born in the United States on March 18, 1992, and she also gained dual citizenship. Both parties were medical doctors: the mother a gynecologist and the father a plastic surgeon. They practiced in New York and lived in New Jersey. The father was on the medical faculty at Columbia University and New York University. During the marriage, the parties traveled to Lebanon twice, once with their daughter and once without her.
The parties divorced in 1998. They incorporated a negotiated property settlement agreement into their judgment of divorce. The parties agreed to joint legal custody of their daughter, then age seven. The mother was designated as primary physical residential custodian of the child. The father was to have liberal visitation, which included spending one month each summer with the child. The agreement specifically provided that the child could travel to Lebanon with the father during the one month summer period.
After the divorce the parties argued about the religious upbringing of their daughter. The mother retained a New York attorney to find out more about Islamic law and about the Lebanese judicial system. The information she obtained about Lebanese custody laws disturbed her and raised the concern that if her daughter was abducted in Lebanon it would be extremely difficult to secure her return to New Jersey. The father had already scheduled his visitation with Alessandra in Lebanon for the month of August 2000. The father traveled to New Jersey to pick up his daughter for the summer vacation. Upon arriving at his former marital residence, he was served with an order to show cause and temporary restraint against his removing the child from the State of New Jersey.
After the plenary hearing, the trial judge denied the mother's application to restrict visitation. The judge found that before the mother signed the Property Settlement Agreement, she was aware of potential difficulties in securing the return of the child from Lebanon. The trial judge further found that the mother agreed to parenting time in Lebanon because she trusted the father and only subsequently changed her mind because of concerns that their daughter may not be returned.
After determining the parties had already agreed to parenting time abroad, the trial court reviewed the evidence to determine if there had been a change in circumstances justifying modification of the parenting time provision of the Property Settlement Agreement. The court decided that nothing happened to legitimately warrant modification. Significantly, the trial judge observed that the parties had already stipulated in their agreement that it was in the best interest of their daughter to spend time with her father in Lebanon and to have contact with her extended family in that country.
Noting the extreme consequences of a wrongful detention of the child in Lebanon, the trial judge stated:
If Dr. Abouzahr were to take Alessandra to Lebanon, according to the experts, ... he would not ever be able to return to the United States. Nor would he be able to return to any country which is a signatory of the Hague Convention. Dr. Abouzahr testified, and it was uncontroverted and I believe him, that he, even without his daughter being in the United States, he would come to the United States once a year for a conference. He has many contacts in the United States. He worked here. He receives patients through his contacts in the United States. He also goes to conferences in the European countries.
Plastic surgery is his specialty where, apparently, his expertise needs to be updated, honed. His contacts need to be encouraged. He is someone who travels for his profession and to be successful, and it would certainly significantly impinge on that if he were not able to go into any country that is a signatory to the Hague Convention without being arrested. And that could be accomplished, according to the experts....For him to go into any European country would be impossible if he were to take Alessandra and not to return her.
So, first of all, I find that he genuinely and sincerely believes it's in Alessandra's best interest to be raised in the United States for the reasons I mentioned before. Secondly, for his own self interest and his desire to further his career and be a successful doctor and travel, he will not take Alessandra and keep her in Lebanon.
On appeal, the mother argued that the trial court erred in not finding sufficient proof of a change of circumstances to modify the PSA to prohibit out-of-country visitation. Moreover, the mother argued that such visitation would no longer be in the best interests of the child. The Appellate Division affirmed the trial court’s determination and asserted:
We do not doubt that the mother's fear is genuine, but fear alone is not enough to deprive a non-custodial parent of previously agreed upon visitation. Such a rule would unnecessarily penalize a law-abiding parent and could conflict with a child's best interest by depriving the child of an opportunity to share his or her family heritage with a parent. Moreover, it would mistakenly change the focus from the parent to whether his or her native country's laws, policies, religion or values conflict with our own. Such an inflexible rule would border on xenophobia, a long word with a long and sinister past.
The Appellate Division then proceeded to set forth guidelines to address similar concerns regarding parenting time in non-Hague countries:
The danger of retention of a child in a country where prospects of retrieving the child and extraditing the wrongful parent are difficult, if not impossible, is a major factor for a court to weigh in ruling upon an application to permit or to restrain out-of-country visitation. But it is not the only factor. In addition to the laws, practices and policies of the foreign nation, a court may consider, among other things, the domicile and roots of the parent seeking such visitation, the reason for the visit, the safety and security of the child, the age and attitude of the child to the visit, the relationship between the parents, the propriety and practicality of a bond or other security and the character and integrity of the parent seeking out-of- country visitation as gleaned from past comments and conduct.
III.
A set of common principles evolves from a careful review of the decisions. These principles serve as an invaluable road map in the analysis of any case involving prospective travel with a child to a non-Convention country.
First, there seems to be uniformity of opinion that whether the country of destination is not a signatory to the Convention is but one, non-dispositive factor for the court’s consideration. Second, the applicable test in such situations continues to focus on the child’s best interests, which should consider the risk of abduction. Third, there is general consensus that the burden of proof in an application to prohibit a parent’s travel with the child to a non-Convention country rests with the objecting parent. Fourth, it is the objector’s burden to prove an actual likelihood of unlawful retention. Mere fear that the child will not be returned, even though reasonable, is insufficient to prohibit the travel. Fifth, the courts often examine the assurances of return offered by the parent who intends to travel abroad. In this regard, courts examine how deeply rooted that parent’s ties are to the United States and what security the parent can provide for the return of the child. The court examines factors such as the citizenship of the parties, the duration and nature of employment in the United States, the nature and extent of the parent’s real and personal possessions here and abroad, any history of abduction of the child, and whether the traveling parent had in the past respected the court’s orders and fully participated in the requisite proceedings. To the extent the parties’ property settlement agreement permitted visitation abroad, to prevent subsequent travel, the objecting parent needs to prove a significant change of circumstances.
Conclusion
In the past decade, ground breaking research and surveys of child abductions has revealed interesting trends and common patterns in these types of cases. The body or research may well serve to prevent future child abductions by identifying red flags militating against travel abroad. See generally L. Girdner and J. Chiancone, Prevention of Parent and Family Abduction Through Early Identification of Risk Factors, Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention (1997) and Parental Kidnapping: Prevention and Remedies, Patricia M. Hoff, Washington, D.C.: ABA Center on Children and the Law (2000). These studies have listed the following “red flags” which suggest travel abroad should not be permitted:
- previous abductions or threatened abductions;
- lack of strong ties to the child’s home state;
- foreign citizenship and strong ties to country of citizenship;
- friend or family living out of state or abroad;
- a strong support network
- no financial reason to stay in the United States;
- engagement in “preparatory” activities (e.g., quit a job, sold a home, terminated a lease, etc.)
- a history of marital instability or a lack of parental cooperation or a history of domestic violence or child abuse;
- a prior criminal record.
Furthermore, the research has uncovered six personality profiles signaling likely abductors:
- Parents who have threatened to abduct or abducted previously;
- Parents who are suspicious and distrustful due to a belief that abuse has occurred;
- Parents who are paranoid-delusional;
- Parents who are sociopathic;
- Parents who have strong ties to another country and are ending a mixed culture marriage;
- Parents who feel disenfranchised from the legal system (e.g. poor, minority, victim of abuse) and have family social support.
When tackling a request for travel with the child to a non-Convention country, it is important to consider the existence of “red flags” suggesting travel abroad should not be permitted, the implementation of appropriate safeguards to ensure the return of the child, and the parties’ burdens of proof applicable should the matter become litigated.
The authors recommend that each application to travel abroad with a child to a non-Hague country should be evaluated on its own merits. The county diagnostic risk analysis should be routinely performed. The psychologist performing the analysis should be trained to evaluate the non-custodial parent’s abduction risk by incorporating the above red flags and risk profiles into a formal report. The authors recommend strongly that courts also consider these red flags and personality profiles within the context of the best interest of the child analysis to adequately and thoroughly determine whether to prohibit the parenting time abroad. While there is no absolute guaranty that a child traveling abroad will not be abducted, addressing these factors constitutes a significant added measure of protection. However, the bench, the bar and all expert panels which had considered the issue are in relative agreement: mere fear of abduction should not deny a parent the right to have meaningful parenting time with a child abroad, even if the country of destination is a non-Hague jurisdiction.
Robert S. Popescu, Esq. and Abed
Awad, Esq.
