The Lawletter Vol 38 No 5
Yet another ground for conflict in U.S. state court custody disputes arises from the fact that a number of foreign countries have not signed the Hague Convention on the Civil Aspects of International Child Abduction. That treaty provides a civil remedy if a parent, in violation of the
custody rights of the other parent, absconds with a child to a foreign country. Under the Hague Convention, courts are required to return the child to the United States if he or she has been wrongfully removed from the United States or wrongfully retained in the foreign country. The courts of countries that have not signed the treaty are not bound by it and are not obligated to
return a child who was wrongfully removed or retained and not allowed to return to the United States. (Information about the status of particular countries is available at http://travel.state.gov/abduction/country/country_3781.html.)
This state of affairs has led some parents in U.S. custody disputes to ask for an order prohibiting the other parent from traveling outside the United States with the children or to ask that the children's passports be held by the domestic parent or by a third party.
A clear example of the challenges of evaluating these cases is found in Katare v. Katare, 283 P.3d 546 (Wash. 2012), cert. denied, 133 S. Ct. 889 (2013). In that case, the father had been born and raised in India and moved to Florida in 1989, where he met and married the mother. They moved to Washington state in 1999, when the father was hired by Microsoft. They had two children, one in May 2000 and the second in September 2001. In May 2002, the husband was offered work in India for two years. The wife strenuously objected to the move, fearing isolation for herself and harmful effects on the children's health. The mother claimed that the father then threatened to take the children to India without her, but he denied that.
At trial, the mother presented witnesses who had heard the father threaten to take the children to India, a parenting evaluator who found the mother's fears "justified," and an expert witness, an attorney with 17 years of experience with child abduction cases. Through testimony of the expert, the mother introduced literature citing "risk factors" for child abduction. At the end of the trial, the court found that the father posed a risk for abduction of the children, and it maintained the travel restrictions that had previously been imposed.
The Washington Supreme Court affirmed, holding that the trial court's findings had been supported by the evidence, that there was no error by the trial court in admitting the testimony of the expert witness, and that there were no constitutional violations by the trial court and no racial profiling involved in the consideration of the risk factors for child abduction presented by the expert witness. These factors included (1) whether the parent has threatened to abduct or has abducted previously; (2) whether the parent has engaged in planning activities that could facilitate removal of the child from the jurisdiction; (3) whether the parent has engaged in domestic violence or abuse; (4) whether the parent has refused to cooperate with the other parent or the court; (5) whether the parent has strong familial, financial, or cultural ties to another country that is not a party to, or compliant with, the Hague Convention; (6) whether the parent lacks strong ties to the United States; (7) whether the parent is paranoid delusional or sociopathic; (8) whether the parent believes abuse has occurred; and (9) whether the parent feels alienated from the legal system. Id. at 551 n.4 (¶ 17).