Texas Divorce Attorney Blog
Sometimes when one parent has international ties, the other parent may have concerns about international abduction. There is a two-step statutory process to assess and mitigate risk of parental international abduction. The court must consider certain factors to determine if there is credible evidence of a potential risk. If the court finds there is a credible risk based on the factors, it must determine whether preventive measures should be taken.
In determining if there is a credible risk of international abduction, pursuant to Tex. Fam. Code § 153.502, the court must consider if there is evidence the parent took, withheld, or concealed a child in violation of someone else’s right of possession of or access to the child or threatened to do so. The court must also consider whether there is a lack of financial reasons for the parent to remain in the country. The court must also consider if the parent has recently engaged in planning activities that could facilitate taking the child from the U.S. Furthermore, the court must consider whether the parent has a history of domestic violence, criminal activity, or violating court orders. The court only has to find credible evidence supporting one of the factors.
In a recent case, a mother appealed a divorce decree that imposed prevention measures without a finding there was a credible risk of international abduction.
Divorce Proceedings
The mother was originally from Russia, but moved to the U.S. in 2012. The parties got married and had one child together.
They filed for divorce after being married for ten years.
The father asked the trial court to determine if there was a risk of international abduction by the mother and to take any measures necessary to protect the child. The court did not find there was a risk of internation abduction, but still ordered that the child “not travel to any non-Hague Convention countries.” The court further ordered that any party that took the child to Russia must post a bond.
The trial court did not make findings of fact and conclusions of law beyond those included in its amended decree, despite the mother’s request and notice they were past due.
The Mother’s Appeal
The mother appealed, arguing the court had abused its discretion in imposing restrictions without making a finding of international-abduction risk. She further argued such a finding was not supported by the evidence.
In this case, the court did not make any findings regarding the factors. The appeals court noted that even if findings could be implied if supported by evidence, there was not evidence supporting such findings.
With regard to the first factor, the mother had denied the father possession and access to the child for several months before trial after claiming he returned the child a week late based on the schedule they had worked out. There were no temporary orders in place at the time, however, so neither parent had a superior right to possession and access to the child. Previous case law has held that a parent’s failure to comply with an informal agreement was not a violation of the other parent’s rights. Elshafie v. Elshafie.
The mother testified the father was a good parent and did not ask for supervised visitation or elimination of the father’s access. The mother was employed and had not gone back to Russia since she moved to the U.S. There was no evidence the mother had ever worked in Russia or had any assets there. The child had medical issues that were covered by Medicaid and his health care providers were located in the U.S. There was no evidence of any planning activities. There was also no evidence of a history of domestic violence, criminal activity, or violating court orders.
When asked why he requested controls for international abduction, the father responded that he was afraid for the child’s safety “especially with what’s going on in the world today.” He expressed concerns about the child being “near a war zone” or in Russia. He did not indicate that the mother presented a risk for international abduction.
The appeals court noted that the court must first find there is credible evidence of an abduction risk based on the factors, and then consider whether the country to which the parent has ties is a signatory to or otherwise compliant with the Hague Convention. The court then may consider whether that country is involved in war or military action. Tex. Fam. Code § 153.502. The court should not have reached the consideration of compliance with the Hague Convention or active military action or war because there was not any credible evidence of an abduction risk.
The appeals court determined the trial court abused its discretion in requiring a bond for travel to Russia and prohibiting the child’s travel to any country that was not party to the Hague Convention.
The court reversed the part of the judgment prohibiting taking the child to any non-Hague Convention countries and requiring a bond for any travel to Russia with the child, and rendered judgment deleting those provisions from the judgment.
Contact an Experienced Dallas Child Custody Lawyer
In this case, the appeals court concluded there was not evidence supporting a credible risk of international abduction, but the results could be different in a case in which the parent has expressed desire to return to the other country and has fewer ties to the U.S. or stronger ties to the other country, or where the parent has a high net worth that allows for financial independence. If you are facing an international custody dispute or fear your child’s other parent remove them from the U.S., you should seek the advice of a knowledgeable Texas custody attorney. Call 214.692.8200 for a consultation with McClure Law Group.