Not With My Child

• Jurisdiction: California,United States,Federal
• Author: B J Fadem, Esq.
• Publication year: 2017
• Citation: Vol. 39 No. 1

Not with my Child

B J Fadem, Esq.

B J Fadem has been practicing law since 1985. He was certified by the State Bar of California as a specialist in family law in 1999. He has been the senior attorney of The Law Offices of B J Fadem & Associates, APC since 1991. He currently sits on the State Bar Family Law Executive Committee and is the former chair of the Family Law Section of the Santa Clara County Bar Association. He is one of the few attorneys who practice in the area of international family law jurisdiction, including Hague proceedings. He has presented numerous classes and seminars in all areas of family law, including international jurisdiction and The Hague Treaty. His passions are his international practice and serving as minors' counsel in high conflict family law matters.

Over the last decade, international fluidity has increased within our country. Corporations have hired individuals from India, China, Japan, and Pakistan, among others. Other companies have contracted their employees internationally to India, China, etc. Many of these employees have families with children. As a result, there is an increased awareness of international child abduction issues; i.e. one parent chooses to either return to their country, or return to the United States with the children and without the other parent's consent. Often, the scenario is that one parent takes the children on "vacation" and thereafter decides not to return.

As attorneys, it is our job to find the "remedy" or the "solution." The first step is to determine whether the country the child(ren) have been taken to or withheld from is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction ["The Hague"]. California attorneys can assist parents with Hague proceedings when children are wrongfully abducted or withheld in the United States [California]—as well as assist in obtaining the return of children wrongfully removed from the United States to a "Hague" country. However, many attorneys still believe "The Hague" process is a great mystery—how does it work? What do you do?

The Hague was enacted to prevent international parental abduction between signatory countries and to create a swift, summary proceeding to determine the proper "jurisdiction" to determine custody and visitation and the expedient return of the child to their country of habitual residence. The objectives of the Convention are as stated in Article 1:

1. to secure the prompt [emphasis added] return of children wrongfully removed to or retained in any Contracting State; and
2. to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."

The Hague has been codified by the United States in 22 U.S.C. §§ 9001, et seq.

FIRST SCENARIO: Your client contacts you from Cyprus, which is a signatory country to The Hague. They have been living in Cyprus for the past three years due to Husband's company relocating them. They were married in Cyprus after arriving and she gave birth to their child there. Husband told her that he was going to take the child to the playground by their home; he then advised her that he was going to a friend's home with their child and would return later. Several days later and reports to Cypriot police, Wife discovered that Husband executed a well-thought-out plan to abduct the child back to California. However, Wife is not sure where in California he is. He has family throughout Northern California and he has terminated all communication.

You utilize the resources available through the Office of the District Attorney Child Abduction Unit in the counties you believe the Father may be staying with the child. Your client can assist with advising where various relatives and/or friends may be residing. Once Husband has been located, the District Attorney's office for that county can assist.

The Filing: Wife must file a Hague Petition for Return of the Child with the Central Authority of the country. It is usually best to advise the client to report the abduction to their local law enforcement agency as well as immediately contacting their "Central Authority" to initiate the petition as soon as possible. The District Attorney can...