Preventing kidnapping of your children by your Ex | Kate Pratt Law

Preventing kidnapping of your children by your Ex: what to do if your Ex wants to take your children on holiday/vacation to Texas or from Texas to another state/country

In today’s mobile world a child’s parents can often end up living in different states or even countries. Even if this doesn’t happen, more and more, people like to travel/take vacations abroad. Travel and, in particular, being a child of a multi-national (or even multi-state) family, can put children at heightened risk of abduction by one parent. Fortunately, this is a rare occurrence, but nonetheless one to be aware of. The old adage of being forewarned and therefore forearmed is certainly applicable here.

So, what can you do to protect your child from being abducted by his/her other parent across state or even national borders?

1. Even if you were never married to the other parent, consider getting a custody order (known in Texas as an Order in Suit Affecting the Parent Child Relationship – SAPCR). This should clearly set out each parent’s rights to possession of the child and will enable you to seek assistance from the courts and law enforcement far more quickly than if you do not already have an order in place.

However, know that Texas SAPCR Orders are very comprehensive and will generally cover all aspects of both parents’ rights and duties in relation to a child, including child support and medical support, so always consult with an attorney about your own particular situation prior to taking any legal action.
If you divorce with minor children in Texas, your Divorce Decree will contain a SAPCR Order.

2. If your ex lives in another state/country, consider seeking local legal advice to help ensure that your Order will be enforceable in that state/country (more on this below).

3. Consider requesting language in your Order that limits foreign travel only to countries that have ratified the Hague Convention on the Civil Aspects of International Child Abduction HCCH | Child Abduction Section.

4. Consider registering with the US State Department’s Children’s Passport Issuance Alert Program to ensure that your child does not have a passport issued without your knowledge or consent: Children’s Passport Issuance Alert Program (state.gov).

5. Register your custody order in the state or country that your ex is from/lives in so that your custody rights are more easily enforced if, at the end of the visit, your ex refuses to return your child (more on this below).

How can I register my foreign custody order in Texas?

Texas, like every other state of the United States (except for Massachusetts, which has an earlier form of the statute) has enacted the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA). This Act does exactly what the title implies: it ensures a uniform approach to child custody jurisdiction and enforcement matters throughout the United States. This helps both avoid forum shopping (where one parent tries to seek a more favorable ruling from a particular state’s courts over another state’s court) and also child abduction. The UCCJEA permits registration of another state’s, and even another country’s, custody order in another state.

Why should I register my foreign custody order in Texas?

While the UCCJEA does not strictly require registration of a foreign custody order prior to enforcing it, showing that an order has not been registered is a defense to enforcement.

The UCCJEA registration mechanism allows the other parent twenty days from notification of the registration to object to the registration of the order in Texas only on limited grounds related to jurisdiction, notice, and whether the order requested to be registered has been modified or vacated.

How can I help ensure my foreign custody order is enforceable in Texas?

The UCCJEA only provides for the enforcement of orders that substantially meet United States standards of due process, i.e., that the other parent had notice of the proceeding that led to the custody order, and an opportunity to be heard. Default orders, i.e., ones that arose out of proceedings in which the other parent did not participate, are particularly difficult to enforce. It is vital that you consult with a Texas attorney prior to obtaining a foreign order if you anticipate your child traveling to/spending time in Texas without you.

Issues to Consider at Divorce/Separation in Texas when you are in an international family

If you are an international family and you have minor children and are divorcing/separating from the children’s other parent in Texas, you should consider seeking legal advice from a family law attorney in your soon-to-be-ex’s country, prior to obtaining a court order regarding custody of your children to ensure that it will be enforceable in that country’s courts if the need arises. For example, unlike many other countries, including those in the European Union and the United Kingdom, the United States has not ratified the UN Convention on the Rights of the Child (Convention on the Rights of the Child | OHCHR). This Convention allows children to express their opinions in legal matters concerning them. Many countries take this very strictly. For example, Germany requires a judge to meet even toddlers to try to ascertain their wishes in family law matters. If a child is not consulted, as may well be the case in a Texas order, it may not be enforceable in a country that has ratified this Convention. Various measures can be taken in individual cases to increase the enforceability of a Texas custody order in foreign courts. Consult a Texas attorney with experience in international family law matters to determine what action can be taken in your particular case.

What if I don’t have a custody order and don’t want one?

If you do not have a custody order, and do not want one; perhaps because possession and child support arrangements suit you well without one, you may at least want to try to limit your child’s international travel to countries that have enacted the Hague Convention on the Civil Aspects of International Child Abduction, because the Convention does not require a custody order to enforce rights to possession of a child. However, know that it is often better to have an existing, registered, custody order, because it can make enforcement/return of your child quicker and more cost-effective.

What if my country is not a member of the Hague Convention on the Civil Aspects of International Child Abduction?

You can find out if your country has ratified this treaty on the US State Department website: U.S. Hague Convention Treaty Partners (state.gov). If your country has not ratified the Convention, you should strongly consider obtaining a custody order in your home country and registering it in your ex’s country prior to allowing your child to travel to visit your ex.

When to seek Legal Advice?

If you are not in a harmonious relationship with your child’s other parent and the other parent lives somewhere else or wants to travel somewhere else or has ties to another country/state.
If you are getting divorced/separated and are an international family.
If your child has been abducted to another state/country by the other parent, or wrongfully retained in that other state/country.

Top Takeaway: Don’t “wait and see” before seeking legal advice: a consultation with a lawyer with experience in international family law early on could save you a lot of heartache and expense in the long run.

If you are interested in obtaining legal advice, schedule a free thirty-minute initial consultation by clicking here, or calling the office at: 972-763-5758.

Disclaimer: The information in this blog is not legal advice, nor does it constitute the formation of an attorney-client relationship. Legal information is not the same as legal advice. The information in this blog is not a substitute for, and does not replace the advice or representation of, a licensed attorney.