If you are concerned that your child has been kidnapped, you have options in the Orange County legal system. Assuming the police cannot locate your child, you will need to take alternative action immediately. This article will focus on the options available to you and how your Wilkinson & Finkbeiner child custody attorneys can help you reunify with your child.
Let’s start with this scenario: You have custody and visitation orders providing that you are to have visitation this weekend beginning when you pick up your child at school. You arrive at the school and your child does not come to meet you. You talk to school personnel, who advise that your child did not attend school today. You contact the other parent multiple times, and the calls go to voicemail. You go to the other parent’s apartment, knock on the door with no answer. You look through the window. All of the furniture is gone. The room is completely empty. You call the police, but they are unable to locate the child or will not assist you. What is your next step?
You Believe the Child Has Been Concealed in a Location Within the United States
Family Code §3130 allows the District Attorney (DA) in California to get involved if you do not know where your child is. Under Family Code §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 has been entered in accordance with Chapter 3 (commencing with Section 3060), and the whereabouts of a party in possession of the child are not known, or there is reason to believe that the party may not appear in the proceedings although ordered to appear personally with the child pursuant to Section 3430, 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.
According to the statute, for the DA to help the child must be “concealed”. In other words, the DA will not get involved if the other parent text messaged you that instead of following the orders, he or she has taken the child to visit an ailing grandmother in Cerritos. If you drive to the grandmother’s house, and the child is there, the DA will not consider the child concealed. Because the other parent violated the custody order, you can file a contempt in family court and ask that the judge imprison the other parent for willfully violating the order. However, the DA will not assist you.
Second, a paternity, dissolution, petition to determine custody/support must be on file in the court with jurisdiction over the children. If you live in Orange County, and you do not have an open case, you must file one in the Orange County Superior Court. Wilkinson & Finkbeiner child custody attorneys will go to court to seek an ex parte order directing the DA to locate and return the child at once. A signed order will allow the DA to serve the order and recover the child if located.
Once a case has been opened up with the DA, the DA will run a rap sheet on both parents. The DA may find that one of the parents has convictions for domestic violence or child molestation or has a roommate with the same. The DA will conduct a nationwide investigation to locate the taking parent. However, if successful, the DA may not provide the address of that parent. Usually this situation will involve cases where the parent and child are fleeing from domestic violence.
If the child is located outside of California, then the DA will domesticate the California orders in the state of the taking parent and ask for an expedited recovery of the child. A hearing will be held in the family court of the county in which the taking parent lives. Most of the time the child is sent back to California after the hearing. However, if the DA finds evidence that the child has been recently beaten or molested, the DA will not deliver the child to the left-behind parent. Moreover, if the DA believes that both parents present safety concerns, the child could be turned over to Child Protective Services.
Keep in mind that the DA is very busy. They will do everything they can to find your child, but it will not happen overnight. Try to be patient.
If the Child Has Been Wrongfully Removed to a Foreign Country
If you believe that your child has been taken out of the country, you need to determine whether the country belongs to the Hague Convention. The U.S. Department of State’s website has a link for Hague signatories (link here: https://travel.state.gov/content/childabduction/en/country/hague-party-countries.html. The Hague Convention is a treaty between those countries who have agreed to return children to their country of habitual residence if they have been wrongfully removed. The US Secretary of State will help return children who have been wrongfully removed to the United States from another Hague Country. The same cooperation is expected from other countries where the children have been removed from the USA. Once the child is returned to the left-behind parent’s residence, the court will have a hearing about which country has jurisdiction over custody. Note than in Hague situations, Family Code Section 3130 does not apply.
In order for the Hague to apply, the following must be proven:
*The child must be a habitual resident of the left-behind parent’s country.
*The child was wrongfully removed from the left-behind country in violation of the other parent’s right of custody.
*The child is under the age of 16.
Habitual Residency
Habitual residency is a fact-intensive inquiry focused on where the child has spent most of his time. The Court will also determine why the child is in the country. For example, if the child is going to school for a year in a country, but the expectation was that he or she would return after that year, habitual residence will be found to be the left-behind parent’s country. The key in determining habitual residence is the parents’ intent. There may be a temporary work assignment for a parent in a foreign country. The Court will find that the child is not a habitual resident of that country. Most Hague disputes come down to the question of the child’s habitual residence.
Wrongful Removal
Wrongful removal has been construed as a taking of the child in violation of the custody order or taking a child in violation of the law of the country of the child’s habitual residency.
No Defenses Apply
If the left-behind parent can prove habitual residence and wrongful removal, the taking parent may have valid defenses to prevail on a Hague application. Defenses recognized by the Hague:
*A year has passed since filing of the Hague Petition, and child is well-settled: This defense is normally seen with much older children who have been in the foreign country for a long time. A successful case will have shown that the child is so well-settled that it would not serve the child’s best interest for him or her to return to county where the child is habitual resident. Courts will also look at the reasons for any delay in filing the Hague application. If the child was concealed, it is a factor against the child being well-settled. The Court will look at the individual facts of the case and consider whether there have been lots of moves and whether a community has been established.
*Grave Risk of Harm to Child if Returned: This defense requires proof by clear and convincing evidence. These cases normally involve domestic violence or the child being taken to a warzone. If there is a risk to the minor child, the question becomes whether the court can impose conditions to protect the child’s safety?
*Consent: The other parent consents to removal.
*Child Objects: Often children will testify if they have the age and maturity to assert a custodial preference.
Child Removed from Foreign Country to Orange County, California
If a child has been taken to Orange County from the country of a treaty partner, the foreign central authority will send an application to the US State Department. If the child is in California, the application will be sent to the Orange County DA. The DA will review the application and monitor the case. If the application is filled out correctly, the DA will locate the child, serve the parents, refer the parents to counsel and explore the possibility of the parents agreeing to a voluntary return of the child. Often applicants from other countries need a VISA to make a court appearance on their Hague Petition. The DA can reach out to the State Department and obtain an expedited VISA for that parent.
The Hague proceeding is conducted within six weeks of filing the application. When the Hague proceeding goes to court, normally the child will be brought in under a warrant. Often the DA will pick up the child at school and bring him or her to the hearing. The DA typically serves the taking parent with the Hague Petition on the morning of the hearing. The Court will conduct a hearing explaining nature of proceeding. It is best for both parties to be represented because the Rules of Evidence are applicable. If the Court grants the application and orders the return of the minor child, the DA will assist in arranging the departure.
Child Removed from Orange County to Foreign Country
If you believe that your child has been removed to a foreign country, then you will need to file a Hague application at the Orange County DA’s office. Wilkinson & Finkbeiner child custody attorneys can assist you in completing the application so that the necessary information will be submitted. Upon its completion, the DA will send the application to the State Department. Then the Court in the foreign country will have a hearing on your Hague Petition.
Counsel for Orange County Hague proceedings is strongly recommended. Our attorneys have experience in litigating child abduction issues involving the following countries: Brazil, Costa Rica, Ecuador, Egypt, Germany, Mexico, Russia and Turkey. Call or contact our office today for a consultation with our experienced Wilkinson & Finkbeiner child abduction attorneys.