Child Abduction

There are particular cases in which one parent may be concerned that the other parent will abduct their child and take the child to a different country. This is particularly prevalent when the United States is not the parent’s home country and there is a threat that the parent might move back to their home country or take the child there while the case is pending. Due to the most recent cases in the media, it is understandable why one would be concerned that if this happened, then they would not see their child again.

If the child is ever wrongfully removed by the risk-parent, the Hague Convention of 1980 can be used as a tool for the parent trying to recover the child. That is, as of date there are approximately 70 foreign countries involved in the Hague Convention and have agreed to cooperate for the return of a child who is wrongfully removed from the United States and is under the age of 16. The problem with this is that it is quite time consuming and costly. It would be much better to work at this on the back-end to wait to get to this point. Fortunately, to protect against this, the Texas legislature created a provision in the Texas Family Code where, if warranted, a court can put particular safeguards in place.

Chapter 153, Subchapter I governs the prevention of international child abduction. This section clearly states that if there is a potential risk present that either of the parents would abduct the child to an international country, then the court shall, either on its own motion or on a party’s motion, determine whether or not the preventative measures listed within Section 153.503 should be put into place. During this initial decision-making process, Section 153.501 states that the court must take into consideration certain factors such as any physical or psychological harm the child would endure if they were abducted, any obstacles that would be presented by the international country in recovering the child, and the potential risks of abduction that are present.

Specifically, the legislature listed out the risk factors that the court must consider along with any supporting evidence in Section 153.502. The tricky part becomes that the court must first find some evidence of one or more of the risk factors in subsection (a) before it can move on to consider other factors in subsection (b). That is, the court must first find some evidence of a risk that the parent has begun to make plans to leave the country such as selling their house, quitting their job, unenrolling the child from school, getting the child’s birth certificate, etc.; if the parent has previously threatened to take the child to the foreign country in violation of the petitioning parent’s possession; if the parent has kept the child away from the petitioning parent before; if the other parent has a history of violence or criminal history; and if the parent does not have a financial reason to stay in the United States such as they can easily obtain a job outside the United States or they are unemployed. If one or more of the factors in subsection (a) are found, then the court can also consider whether the risk-parent has strong familial, emotional or cultural ties to another country and if that parent lacks strong ties to the United States. There are even additional factors in subsection (c) that the court can consider if any of the risk factors in (a) are found.

The problem with these risk factors is (like all family law cases in which if you plead it and you want it, you must prove it) that you must have evidence to support them. If they are purely speculative, then a court might be reluctant to impose anything. However, if you have some evidence of at least some of them, the Texas courts have been pretty forward-thinking in erring on the side of caution. The one that most parents have problems with are that in which the risk-parent threatens to take the child and keep the child away from the other parent. If this is in writing specifically from the risk-parent, as you can imagine, this would be the best and most concrete evidence that you can find. If the court determines that it is necessary to put preventative measures into place, then Section 153.303 lists out the specific safeguards that the court can order. These measures include naming the other spouse the sole managing conservator and or even giving the risk-parent only supervised visitation with the child. The court can even put certain passport controls into place. Normally, the court will put into place all of the safeguards the court feels is appropriate for that particular case.