Unfortunately, child custody cases can create the risk of parental abduction. Parental abduction is the unlawful removal of a child by a parent from the State of Colorado without the consent of the other parent or a Court order after a child custody case has been initiated either by the filing of Petition for Dissolution of Marriage or a Petition for Allocation of Parental Responsibilities. This prohibition is contained in C.R.S. 14-10-107. Unfortunately, for many going through this legal process they are faced with a former partner or co-parent that may be willing to break the law or believes they will not get caught by doing so. Some parents may believe this is in the best interest of their child based on their beliefs regarding the other parent. Some may have an untreated mental health issue or believe that the court system is biased or unfair. Some are simply very angry. Regardless of the reasons or intentions this action is based on, it is extremely emotionally harmful to the child and can lead to irreparable legal consequences.
The last comprehensive national study was completed by the U.S. Department of Justice in 1999. At that time it was estimated that more than 200,000 children per year are abducted by family members. Within the United States there is a great deal of legal cooperation between the states. If a child is located a writ of habeas corpus may be filed in the proper jurisdiction and the child may be removed with the help of local law enforcement wherever they are located. Almost all, if not all, states have enacted the Uniform Child Custody Jurisdiction and Enforcement Act, UCCJEA, which provides courts guidance regarding jurisdiction during interstate custody disputes. The Uniform Child Abduction and Prevention Act, UCAPA, expands on the foundational principles of the UCCJEA and consistent with the UCCJEA provides more guidance related to the risk factors of abduction and remedies a court may implement to prevent abduction from occurring. As of March of 2015, 14 states have enacted UCAPA.
Even with the legal mechanisms available it can still be very difficult to locate a child abducted and taken over state lines. This becomes a significantly more dire situation should a parent abduct the child and abscond internationally. The United States has very limited investigative powers abroad and it can be very difficult to even locate a child in a country that may not be cooperative or have adequate information resources or local law enforcement. To address this issue many countries are member states of the Hague Convention of the 25th of October, 1980 on International Child Abduction. This is essentially an international treaty, or agreement, between member states that have agreed to follow specific provisions. If a country is a member state an application may be filed for the return of the child. This may be a difficult and expensive legal process, however, there is a legal process available unlike if the country is a non-Hague country and there is very little legal recourse. Currently there are 78 members states and 68 non-member states that have enacted some portion of the agreement. Each country has varying degrees of compliance with the treaty. For example some nations are members but have been classified as non-compliant such as Costa Rica, Guatemala and Honduras, others such as the Bahamas and Brazil have patterns of non-compliances, still others have noted enforcement issues such as Mexico, Romania or the Ukraine. As of December 2013 there were 111 current applications pending that had remained unresolved largely due to obstacles in the legal process or simply locating the child. Even with the help of the Hague Convention provisions the return of a child who has been abducted and taken abroad can present insurmountable hurdles.
The difficulty presented by facilitating the return of an abducted child is the impetus for Courts to enact restrictive prevention orders before an abduction occurs. These measures may range in severity from requiring a party to surrender passports to restricting a party from unsupervised parenting time if they are found to be a flight risk.
WHEN TO BE CONCERNED OF A CHILD ABDUCTION:
•- The other parent has refused access to passports or other legal documents
•- The other parent has restricted access to the child or their whereabouts
•- The other parent is refusing to provide detailed travel information
•- The other parent suddenly terminated employment and/or sold any property within the state
•- The other parent lacks substantial ties to the state and/or may have ties elsewhere, internationally or within the U.S.
•- The other parent has suddenly transferred money to offshore locations
•- The other parent has threatened to abscond with the child
These are just some examples of when to be concerned a or family member may be planning to abduct a minor child. The court will usually examine these factors within the totality of the circumstances and prescribe an appropriate remedy.
If you believe there is a risk your child may be abducted by a parent or family member please seek legal assistance immediately. It is much easier to prevent an abduction before it happens than to attempt to locate a child after it has occurred. If you are considering leaving the state with a minor child against a court order, please seek legal assistance immediately. The consequences of this decision, even with the best of intentions, can be tragic and irreparable. This can include a complete restriction of parenting time or criminal prosecution. Cases involving the abduction of a child can be extremely complicated and the help of counsel to act as a guide is essential.