As a parent, feeling helpless is the last thing that you want to experience. However, if your ex-spouse were to kidnap your child from your home, your child’s school, or anywhere else that is exactly how you would be made to feel. Suddenly, all the control that you were able to exert over your child would be taken away from you. On top of that, you have no idea what the laws of the state or country where your child was taken say about getting him returned to Texas. All you know is that you are worried beyond belief and have no idea when you are going to see your son again.
Unfortunately, this is not a far-fetched idea for many Texas parents. Children are kidnapped by their parents every day in our state. Where they are taken can depend on several factors and considerations specific to their family. If you are a parent who has a concern about kidnapping or has an ex-spouse with significant family or other connections to another state or country, then today’s blog post from the Law Office of Bryan Fagan is for you.
What is the Uniform Child Custody Jurisdiction and Enforcement Act?
Otherwise known as the UCCJEA, the Uniform Child Custody Jurisdiction and Enforcement Act is a critical series of laws that will help guide you during a time when your child is kidnapped. These are uniform laws that apply to the different states in our country as far as whose child custody orders and laws will be followed in the event of an interstate custody issue. These laws, which should not be a surprise, were developed to help protect children from kidnapping and women from violence. Coordination of the states on these topics is a central feature of the UCCJEA.
The key term here is jurisdiction. Jurisdiction refers to a court’s ability to hear legal arguments and issue orders regarding your legal matter. In this case, you need to be able to know if an out-of-state court can enforce a Texas child custody order. Or, if you have no child custody orders, what state will have jurisdiction to issue those orders if you file a lawsuit? These laws do not dictate to a court how to make rulings in your case. Rather, the UCCJEA has to do with which court will decide these custody issues.
What if domestic violence is related to the kidnapping?
If you or a child has been made a victim because of your ex-spouse’s abuse, then the UCCJEA can apply to your situation. There are four ways under the UCCJEA that a court can acquire jurisdiction over your case: home state, significant connection, more appropriate forum, and no other state jurisdiction. Home state jurisdiction is the method of applying jurisdiction that the UCCJEA prefers to utilize. For example, if Texas is your child’s home state and you file a child custody lawsuit here asking for assistance in having your child returned home to Texas then the UCCJEA would likely assist in determining Texas to have jurisdiction over your case.
In emergencies, all bets are off. Having your child kidnapped from Texas would not be an issue even if Texas were not your home State. For example, if you and the kids just moved here from Ohio even though you still had a pending child custody case in that state, Texas could still exercise jurisdiction even though there is a matter ongoing in another state which relates to your kids. The emergency would supersede the home state jurisdiction which would apply in most situations involving interstate custody.
A child’s home state, under the UCCJEA, is the state where your child has lived with you, your co-parent, or another person acting as a parent for at least the six months immediately preceding the filing of the custody case. A child’s home state could be the current state where he or she resides as well as a state which would have qualified as a home state within six months of the filing of the custody case. For example, following the hypothetical situation laid out previously, Ohio would be the home state jurisdiction for your child since he lived there for at least six months consecutively and did so within six months of the custody case being filed.
Significant connection is another critical factor for a family court to examine when considering proper jurisdiction. A state like Texas would have a significant connection with a child if the child at least one of their parents had a significant connection with Texas. The significant connection would need to relate to the care of your child, protection, personal relationships, and things of this nature.
In rare instances, a state with jurisdiction under the home state or significant connection theories would decline to exercise jurisdiction. In those situations, a court that is deemed a more appropriate forum would come forward and exercise jurisdiction. The other way a court could find jurisdiction in a child custody case involving interstate jurisdiction and child custody issues is when a court exercises jurisdiction because no other venue is appropriate or has chosen to do so.
Emergency jurisdiction in a UCCJEA/child custody case
Let’s say that your child was taken by your ex-husband from Texas to Alabama. He has family there and thinks that he can pull a fast one on you and the courts in both states. However, your ex-husband’s sister (who lives in Alabama) finds out what he has done and decides to call you to tell you where the kids are. Now that you know the kids are safe for the time being and where they are you naturally start to wonder what kind of jurisdiction can a court exercise over your children on an emergency basis.
A family court in Alabama can exercise emergency jurisdiction over your child if he has been abandoned there or if it is necessary based on an emergency circumstance involving the threat of harm to him. It would be possible in your situation for a court in Alabama to exercise emergency jurisdiction if you have been abused by your ex-husband even if your child has not been abused.
What is the “clean hands doctrine?”
A family court that would otherwise be able to exercise jurisdiction over your case can decline to do so if the evidence shows your ex-spouse has engaged in unjustifiable conduct. This is known as the “clean hands doctrine” and would certainly apply in a situation where your ex-spouse has kidnapped your children and taken them to a place where you did not know where they were. The clean hands doctrine prevents your spouse from gaining a jurisdictional advantage from their objectionable conduct.
How will courts in different states communicate with one another when it comes to a case?
Let’s continue with our hypothetical situation and assume that your child is in Alabama while you live in Texas. The family courts in each state where a case is filed would be required to communicate with one another under the UCCJEA. For example, if an Alabama court can exercise emergency jurisdiction over your children given that the kids are physically in that state, it would need to be able to communicate with a Texas court if you file a case here, as well.
Both you and your ex-spouse would be given an opportunity by each court to have your arguments heard before a decision is made on which of them will exercise jurisdiction over your case. In the meantime, you need to be aware that a court will need to receive information from you about your child’s case to be able to proceed. Your child’s present address, where your child has lived within the past five years and the names or addresses of any person with whom your child has lived during that time are essential to provide.
Steps that you can take to help prevent an abduction
There are steps that you can take to help reduce the likelihood of an abduction happening to you and your family. True enough- there is only so much that you can do even as a parent, but these are steps that you can begin to take now if an abduction has not already occurred.
If you have not done so already, it is a good idea to go to court in your area and try obtaining custody orders that restrict where your child can be moved to, with whom your child can reside and to provide structure to this arrangement. Your spouse or co-parent can take advantage of a lack of court orders and choose to fill that void themselves by creating their makeshift custody arrangement. Do not put him or her in the position to do this. Try to get court orders established with clearly defined boundaries regarding acceptable and unacceptable behavior.
Next, you should think more about what factors are in place in your situation that may increase the likelihood of an abduction occurring within your family. If you are reading this blog post then it is fairly obvious that you think that an abduction is at least a possibility. However, consider factors like whether your co-parent or spouse has threatened to take your children before without your permission, and if there is any evidence around the house or in your co-parent’s messages to family that an abduction attempt may be imminent.
Another series of steps that you can take to reduce the likelihood of abduction is to make everyone who comes into contact with your child regularly aware of what your co-parent may attempt to do. Your child’s daycare and school should, at minimum, have a copy of your child custody orders. You should also contact them and make sure to speak to a person about any issues that are ongoing as well as threats of abduction that are being made. Your child should also know basic information about you, where they live, phone numbers, and other information that can be provided to authorities in the event of an emergency.
What can you do after your child is kidnapped?
As soon as you are sure that your child has been kidnapped you should contact whatever law enforcement agencies are available in your jurisdiction and file a police report. Sometimes these come in the form of Missing Person Reports or similar titles. Making law enforcement aware of what has happened will allow them to communicate more readily with other officers around the country and even around the world when it comes to sharing information. The FBI should also be made aware of your situation so that an entry can be made into their database or lost or abducted children.
The importance of a valid and enforceable custody order
How can an attorney help you prevent child abduction? It starts with having a valid custody order from a family court. What a custody order will do is set forth the basic rights and duties that both you and your co-parent have concerning your children. You can also work to have special language added to custody orders that can help to prevent an abduction from happening in the first place. Working with an experienced family law attorney such as those with the Law Office of Bryan Fagan is a great way to see that this happens.
We have already talked about the role that the UCCJEA plays in a case like this. The court that hears arguments and issues orders will need to first exercise jurisdiction over the case. Enforcing the terms of that custody order is a crucial responsibility that an attorney can help you with. The order that you have is only as good as its ability to help you get your child back home and safe with you.
What can specifically be included in a child custody order to help prevent an abduction?
You should work with an attorney on including language in your child custody orders that can preemptively protect your child against abduction. A modification can be done to the court orders that were initially established if they do not contain strong enough language. If you have a court order on child custody issues, then that is the court that will have exclusive continuing jurisdiction over the matter. This means that this court will have jurisdiction over your case until further notice or until the court declines to exercise jurisdiction.
It could be that the risk of abduction exists even before the child custody orders are even written. In that case, you can seek temporary orders for the time between when final orders are signed off on by the court and when the child custody case is originally filed. Do not let this time of your case be one where your co-parent can take advantage of a lull in the proceedings to abduct your child. A good rule of thumb for you to keep in mind is that any emergency relief provided by a court will be temporary.
It is normal for you as a parent concerned with abduction or kidnapping to want to inundate the court orders with restrictive language as far as the behavior of you and your co-parent. In your mind, the more restrictive you are, the less of a chance that your co-parent will have to abduct your child. However, it may work out that the more restrictive you are the more counterproductive your efforts end up being. If you make visitation opportunities for your co-parent and your children too infrequent or too limited, then your co-parent can become even more frustrated with the situation. This can lead to an increase in the likelihood that an abduction occurs.
Sometimes, judges need to be shown that the abduction prevention measures you are seeking are necessary rather than just desirable. Any language in court orders involving your minor children needs to be determined to be in the best interests of your children. First, you can show that there is a risk of abduction to your child. Either your co-parent has attempted to abduct your child in the past or has been successful in doing so. If your co-parent has no real ties to Texas but has strong family or work ties to another state or country this could also increase the risk of abduction.
You can also show that your co-parent is taking steps to reduce ties to this area by leaving work recently, selling a home, closing their business, or taking other permanent steps to eliminate ties to this area can go a long way towards helping you establish protective yet not overly restrictive language which can protect your child from abduction.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family’s circumstances may be impacted by the filing of a divorce or child custody lawsuit.