Custody Across Borders

A parent kidnapping their child and taking them to another country seems villainous—but it’s sometimes an emotional decision that wasn’t premeditated, says family law attorney Raymond Rafool, at Rafool LLC in Miami. “It’s more: They go and then they decide not to come back,” he says.

“Let’s say somebody met someone abroad, married them, and brought them to Miami,” says Dolly Hernandez, a family law attorney at Miami’s Boyd Richards Parker & Colonnelli. “That person is disconnected from their family back home. That could be the impetus for abducting a child in the event of a divorce, because they want to return to their roots and support system.” 

Rafool says he has also seen many cases where an abduction was planned. These sometimes involve bringing a child to the U.S.—not going away from it. “They want a better life for themselves and their kids,” he says, “or they’re avoiding the legal system of the [other] country. People may not want to litigate there, depending on the power of the other party, or relative to gender biases that some countries have.”

In situations where venue must be determined, the 1983 Hague Convention comes into play. “Hague doesn’t make a decision,” Rafool says. “It deals with what country will address a case,” and whether a child has been wrongfully removed or wrongfully retained. The custody processes are dictated by individual countries, and they are often both complex and expensive.

“The expense could be a couple of hundred thousand dollars,” says Miami family law attorney Lawrence Katz, at The Law Offices of Lawrence S. Katz. “I average probably, without exaggeration, way over 150 hours of work on a Hague case.” Besides legal fees, there may be travel, investigators and trial expenses. His preferred path to resolution isn’t through the Hague.

“My first choice is always to use the UCCJEA,” he says, referencing the Uniform Child Custody Jurisdiction and Enforcement Act. In these situations, Katz represents a party seeking to return a child to the U.S. “Through something called an ‘expedited enforcement of a foreign child custody decree,’ it only takes two days to get the kid back. 

“Essentially, you say they’re violating a court order,” he adds. “So you need a court order, let’s say from a divorce case or paternity case, that you can enforce.”

Florida’s UCCJEA requires its courts to enforce custody rulings from other countries that comply with the state law, whether or not they’re Hague convention members. One factor for not enforcing is if the party was not afforded due process; another is if custody laws in the other country—for example, some Middle Eastern countries—violate our concept of human rights. In Florida, Katz says, the failure of a country’s courts to consider the child’s best interest qualifies as a violation of human rights, and a Florida court could decline to enforce a custody order from that country. 

And if child and parent have disappeared? That’s worse, of course.

“Everyone has this misconception that there’s some sort of passport control,” says Hernandez. “Once you leave this country, there isn’t some magic GPS on your child.”

Some foreign governments have little control over parts of the country, and even functioning governments aren’t always helpful. “There are a lot of countries that are corrupt as far as the judicial system,” Katz says. “If the family is wealthy, they could probably pay people off.”

Hernandez says wealthy families can also take a child from country to country trying to evade jurisdiction. “They have the capacity to evade the other parent for a significant amount of time,” she says. “The best thing to do is to try to be alert to when it might happen and take every measure possible to prevent it.”

For example: “If the country that the other parent wants to travel to with the children is a non-signatory to the Hague Convention,” says Hernandez, “[you] could make an objection [in court] to [any] travel outside of the U.S.” 

Katz notes that such a court order can be requested only after filing for divorce. Then, if there is evidence a child may be abducted, the concerned parent can seek preventive measures such as an order barring the other one from boarding flights with the child, and directing that parent to surrender the child’s passport. 

Some courts, Hernandez says, will require the other parent to post a bond or use other preventive measures. “In the event the other parent needs to go and retrieve [a child] and file a Hague action,” she explains, “they can use that money to pay for attorney’s fees.” 

Prevention can begin during a divorce settlement, says Rafool.  

In Miami, he notes, many people have more than one passport. “They may have multiple homes in different places, and they could have family in different places. That’s why, in a lot of the settlement agreements, we put in terms that address the Hague Convention.

“You’re telling someone, ‘You’re not gonna do this, this, this and this.’ The other person has it in their head, ‘OK, this is to stop me from doing this,’ and you hope that it’s created somewhat of a deterrent.”

Keep 2 Sets of These Records (1 Digitally) If You Fear an Abduction 

• Detailed physical description of the child
• Recent photos of the child, the other parent, and his/her relatives and new spouse
• Fingerprint cards 
• Documents for the child and other parent: passport and driver’s license numbers, place of issue
• Details on other parent’s credit cards, bank accounts, Social Security, alien registration, negotiable securities and bonds, IRA and retirements accounts; contact information for brokers
• Contact info for other parent’s family, friends and associates 
• Hospital, doctor and dentist records; psychological reports; reports from police or  Department of Children and Families

Source: Lawrence Katz