Litigation concerning a parent’s right to take a child out of the United States to visit another country requires courts to balance two competing – and often highly conflicting – interests.
On the one hand, a child has the right – perhaps a fundamental human right – to experience the benefits of international travel, to visit family overseas and to experience the cultural diversity and riches that are inherent in foreign travel. Indeed, perhaps a parent has a fundamental right to take a child to his or her country of origin, as well as to explore the world with a child.
On the other hand, a child has a fundamental right of safety and security and a right not to be abducted to a foreign country.
How the competing interests are reconciled in any particular case depends in major part on the nature of the specific evidence that is adduced and the nature of the information with which the court is supplied.
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In all too many cases a party seeks to rely on the mere fact that a country has or has not signed the Hague Abduction Convention or that a child should necessarily be allowed to visit a grandparent overseas. Such evidence is patently insufficient.
The paramount consideration is always the welfare and best interests of the child, but these are nebulous terms and courts have an extremely broad discretion. The primary purpose of visitation is to promote the best interests of the children, not to fulfill the wishes or desires of the parent. Accordingly, visitation rights are not absolute. They are always subordinate to the welfare of the child.
It is essential to make it as easy as possible for the judge to rule in favor of one’s client by providing the judge with strong evidence in admissible form as to the relevant issues. Those issues are of two fundamental kinds. The first is evidence concerning the risks, or lack thereof, that are presented by the parent (or other person) who is the (alleged) potential abductor. The second is evidence that the legal system in the place to which the child might be taken is (or is not) likely to promptly and effectively return the child if retained there by the abducting person.
In California judges are statutorily required, whenever they become aware of facts which may indicate that there is a risk of abduction of a child, to determine whether measures are needed to prevent the abduction of the child by one parent.
To make that determination, they must consider the risk of abduction of the child, obstacles to location, recovery, and return if the child is abducted, and potential harm to the child if he or she is abducted.
In so determining, the courts in California must consider whether a party has previously taken, enticed away, kept, withheld, or concealed a child in violation of the right of custody or of visitation of a person; whether a party has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of the right of custody or of visitation of a person; whether a party lacks strong ties to California; and whether a party has strong familial, emotional, or cultural ties to another state or country, including foreign citizenship (but only if evidence exists in support of another specified factor).
Other specifically designated factors are whether a party has no financial reason to stay in California, including whether the party is unemployed, is able to work anywhere, or is financially independent; whether a party has engaged in planning activities that would facilitate the removal of a child from California, including such factors as quitting a job, selling a primary residence, terminating a lease, closing a bank account, liquidating other assets, hiding or destroying documents, applying for a passport, applying to obtain a birth certificate or school or medical records, or purchasing airplane or other travel tickets, with consideration given to whether a party is carrying out a safety plan to flee from domestic violence; whether a party has a history of a lack of parental cooperation or child abuse, or there is substantiated evidence that a party has perpetrated domestic violence; and whether a party has a criminal record.