What to do when parents abduct the kids

Family Law Conference, March 6-7, 2014 Administrative Office of the Court and Legal Aid Association of California

Presented by: Lieutenant Van Jackson, San Francisco District Attorney’s Office Investigator Molly Braun, San Francisco District Attorney’s Office Minty Siu-Kootnikoff, Esq., Legal Aid Foundation of Los Angeles

Rheeah Yoo, Esq., Imperial County Superior Court 1

Is there a case or custody order

Where is the child now, where was child last

Where is the Custodial parent (taking parent) and where is the Non Custodial Parent (left behind parent)

How long has it been

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What is Amber Alert Section 8594 of the Government Code effective 1/2014

allows emergency alert system activation if Child is under 17, or disabled person Is in imminent physical danger There is clear identification of child and abductor/ vehicle Highway patrol and text alerts go out in 1st 24 hours

Custodial and guardian abduction also qualifies

What is CARD – when a case does not qualify for an AMBER alert, the Child Abduction Rapid Deployment of the FBI may step in.

DA’s office can turn on the GPS tracker

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Does the FBI help? A child does not have to be missing for 24 hours A child does not have to cross state lines There does not have to be a ransom note Many reports are about children who are just

temporarily missing Contact a field office: http://www.fbi.gov/contact-

us/field Remember to make a report to the local police they can

make a Missing Unidentified Persons System entry. Photo handy if person stopped, they are on system.

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National Center for Missing and Exploited Children National Center for Missing & Exploited

ChildrenCalifornia Regional Office 18111 Irvine BoulevardTustin, CA 92780-3403 Phone: 714-508-0150Fax: 714-508-0154

NCMEC/Northern California 510 Waverley Street Palo Alto, CA 94301 Phone: 650-600-8328

1-800-THE-LOST

This is a 24 hour line, linked to Homeland Security

Amazing support for families, ie. transportation

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Who can file, and what type of case should you start? Married parents

Divorce

Nullity

Legal Separation

Petition for Custody and Support of a Minor

Unmarried parents UPA (+VDoP )

DCSS judgment, some counties allow filing custody issues in IV-D child support cases

Petition for Custody and Support of a Minor

Guardians, etc.

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If there is no case where has the child been living Residence of child

UCCJEA

But the DA’s office of left behind parent helps

If there is already a case, file it there.

Where was the child taken – international only If taken out of the country/ state, refer out

If brought into the country

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Can you file an Ex Parte application Is there immediate danger or irreparable harm

Family Code section 3064 and CRC 5.151

What can you file: Request for Order

Ex Parte Family Code Section 3130 et seq.

Red flags – complete abandonment, if the taking parent does not have custody or limited visits, past history.

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If there is already an order, why wouldn’t a parent just try to enforce it?

Registration of Order needed

Different DA jurisdictions may have different 3130 requirements before taking action. They have the power to activate a cell phone’s GPS tracker.

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FC 3130

If a petition to determine custody of a child has been filed in a court of competent jurisdiction, or if a temporary order pending determination of custody … the district attorney shall take all actions necessary to locate the party and the child and to procure compliance with the order to appear with the child for purposes of adjudication of custody. The petition to determine custody may be filed by the district attorney.

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FC 3131

…the district attorney shall take all actions necessary to locate and return the child and the person who violated the order and to assist in the enforcement of the custody or visitation order or other order of the court by use of an appropriate civil or criminal proceeding.

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FC 3132

In performing the functions described in Sections 3130 and 3131, the district attorney shall act on behalf of the court and shall not represent any party to the custody proceedings.

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FC 3133 involves a back and forth, anticipate it an build it into the ex parte request

If the district attorney represents to the court, by a written declaration under penalty of perjury, that a temporary custody order is needed to recover a child who is being detained or concealed in violation of a court order or a parent’s right to custody, the court may issue an order, placing temporary sole physical custody in the parent or person recommended by the district attorney to facilitate the return of the child to the jurisdiction of the court, pending further hearings. If the court determines that it is not in the best interest of the child to place temporary sole physical custody in the parent or person recommended by the district attorney, the court shall appoint a person to take charge of the child and return the child to the jurisdiction of the court.

The Investigator needs to assess the parent and may need to get a protective custody order for picking up the child, also if the left behind parent cannot afford to or has no documents for travel. Also useful for Hague cases where need to cross borders to get back, with as many authorized custodial travel persons possible.

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If FC #3130 orders are issued, how far can the DA’s office go to recover a child?

How much evidence need before going there?

Has a FC 3133 situation ever arisen, where the DA’s office finds that the custodial parent needs to be changed?

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Some parents know where the children have been taken

if there is an order, try to enforce it, get a incident report.

If there is no order, file a case and request temporary orders

If the parent does not know the location of the child, they may file an ex parte Family Code section 3130 et seq.

Parents will be interviewed by the DA

If they do not provide information, what does the DA do?

Parents must take some responsibility

Dads who pay child support, but never saw the child. DCSS may be cooperative

Parent needs to show interest in this case

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How long has the child been missing

If it’s been a while, what have they done in that time

It’s difficult to ask for an ex parte if its been years, but if it’s been months, was there a good reason its taken so long?

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If children abducted to CA and there is a current custody order, register the order, then file ex parte request.

File a Family Code section 3130 request Template included in appendix A.

If child abducted outside of US and country is member of Hague Abduction Convention Contact US Central Authority to file Petition for Restitution

in destination country.

If child abducted into US File a Petition for Restitution in state or federal court, sample

Petition and Letter in Defense are in appendices B and C respectively.

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Reasons why you want to file a FC 3130 request for DA search service and recovery so a court can decide custody in the best interest of the child.

Note Progress is not always shared with the left behind parent

because unknown what they will do with the information The left behind parent does not follow DA’s instruction (ie.

told not to go to Russia, and he did.) Don’t alert the abducting parent (International abduction cases) You don’t want to litigate best

interest of child and only want to determine the forum where that decision should be made Judges may still decide otherwise

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A Petition for Relief under the Hague Convention is appropriate: If the child has been abducted outside of the US

Contact the US Authority: http://www.hcch.net/index_en.php?act=authorities.details&aid=133

There are special U.S. contacts for abductions involving Mexico on the list above

The DA’s office will assist with the preparation. State Department can communicate better with law enforcement than with the civilian population.

File ASAP, get INTERPOL involved, a year goes fast. 19

If the child has been abducted to the US Filing a Petition for Relief under the Hague Convention

may be appropriate

There does not need to be an existing case in the home county

Prepare a UCCJEA & Family Law Summons

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A Petition for Relief under the Hague Convention may be filed in federal or state court.

Federal or state codes of civil procedure will apply respectively

In addition to the petition or verified complaint, a request for emergency relief may be filed.

Attach copy of the Convention, ICARA, birth or marriage certificates, proof of custody proceedings, records, or photographs to support claim of habitual residence, certified custodial orders for sole legal and physical custody and proposing an interim custodial person (parent or parent’s representative, any and all law enforcement agencies).

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The trial court may order injunctive relief before service

Reasons not to file a Petition for Relief Under the Hague Convention Child is over 16 It is within one year of “wrongful” removal Parent has not been exercising custody rights

Visitations have been considered exercise of custody Ne-exeat orders protecting non-custodial parent are custody rights,

Abbott v. Abbott (2010) 130 S. Ct 1983

Your case will be weaker if you have waited over a year to file the petition

Wrongful removal might be established, but there may be reasons why return may not be appropriate.

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Mexican divorce decree orders joint custody and anticipates parties moving to Imperial county and children enrolling in school there.

Parties live in Imperial county until Mother takes children to Riverside county. Father permitted visits.

Father registers foreign custody order and requests ex parte orders for temporary sole custody until modification in Mexico.

Parties ordered to continue sharing joint custody, no removal from Imperial and to re-enroll.

All parties are here in CA

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Mexican divorce issued with custody and child support orders. Mom has primary custody, visits to dad; any change of residence must be with order of the court.

Mom moved to Imperial county 6 months ago; requested DCSS to open new child support case.

Dad contacted Mexican Central Authority which just contacted the US Central Authority in DC.

Dad came for help with child support case. Registered custody and support orders and filed Petition for Relief under Hague with ex parte request for temporary custody.

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Children in Mexico Unmarried mother and father Father in US has a DCSS case; says mother keeps children

in substandard conditions in Mexico Father gets children and files UPA ex parte emergency

jurisdiction because children are endangered Mother served in court. Mother files Petition for Relief under Hague plus ex parte Father responds, cannot establish that children were not

taken from habitual residence. Father’s UPA ex parte denied, mother granted custody to

return and file case in Mexico.

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Husband filed in CA, wife needed to go to Canada for medical reasons.

H got her served, wife took kids with permission

Wife filed inconvenient forum instead of response

Denied – but CA court granted custody of kids to mom in Canada.

Husband then filed Hague Abduction Petition in Canada

Hague Petition successfully defended, through communications with Canada’s Central Authority.

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Feedback from audience

Ratios

SF DA OFFICE EXPERIENCE OR CONSIDERATIONS IN INTERNATIONAL ABDUCTION CASES?

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A – Sample 3130 order from LA DA office

B – Alternate sample 3130 et seq. order

C – Sample Hague Petition removal to the US

D - Sample Blank Response to Petition

E – Sample Defense to Hague Petition removal to Canada

F – Sample Points and Authorities for inconvenient forum divorce case in CA

G – Amber Alert criteria card.

H – San Francisco District Attorney’s office Child Abductin Recovery Unit Brochure

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National Center for Missing and Exploited Children http://www.missingkids.com/home, 1-800-THE-LOST

FBI Resources for Parents http://www.fbi.gov/stats-services/parents/ State Department Bureau of Consular Affairs http://travel.state.gov/content/childabduction/english/from/ho

w-state-can-help.html Public Notice 957 for text and legal analysis of Hague

International Child Abduction Convention: http://www.missingkids.com/en_US/archive/documents/FederalRegisterDoS.pdf

Practice guide for preparation of Hague Petition for Relief: http://www.missingkids.com/en_US/HagueLitigationGuide/hag

ue-litigation-guide.pdf

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Lieutenant Van Jackson

San Francisco District Attorney’s Office

Investigator Molly Braun

San Francisco District Attorney’s Office, 850 Bryant Street #301 San Francisco, CA 94103, Molly.Braun@sfgov.org , 415-553-1881

Minty Siu-Kootnikoff, Esq.

Legal Aid Foundation of Los Angeles, 16405th Street, #124, Santa Monica, CA 90401, M-Siu-Kootnikoff@lafla.org, 310-899-6200

Rheeah Yoo, Esq.

Imperial County Superior Court, 939 W. Main Street, El Centro, CA 92243, rheeah.yoo@imperial.courts.ca.gov, 760-482-2230

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