Family Law Cases Outside Japan

Now that the inadequacies and racial biases of family law in Japan are becoming well known outside Japan, non-Japanese are using foreign courts to prevent Japanese parents from abducting children to Japan.  This can include restraining orders preventing the Japanese parent from traveling to Japan with their children, requiring supervised visitation by the Japanese parent, denying requests for relocation to Japan by a divorced Japanese parent, imposing large bonds before travel by the Japanese parent, and other such measures. 

The intent is to provide accessible precedents for whatever legal orders are necessary to keep a Japanese parent from taking a child back to Japan.  Any court ruling divorce, custody, or visitation related that base a decision on the risk of abduction to Japan or references Japanese family law in any way, even indirectly.  Examples are sole custody, supervised visitation, refusal of a request to relocate to Japan, etc. (Such as the fact that joint custody in Japan is illegal, so the non-Japanese parent must get sole custody in the US also. A good argument, by the way.)   Of course we want anything based on the fact that Japan has not signed the Hague Convention on the Civil Aspects of International Child Abduction.

PLEASE CONTRIBUTE YOUR CASE !!

We are assembling other information that can be used against a Japanese parent in a foreign court to help A) get custody, B) request travel restraining orders, C) convince a judge that it is not in the best interests of a child for a custodial Japanese parent to be allowed to relocate to Japan, or other legal actions.

• Special foreign laws due to Japan not having signed the Hague Convention on the Civil Aspects of International Child Abduction, non-recognition of foreign court's custody and visitation decisions and other reasons.  (For now only US laws here, but others are welcome.)
• Information on bullying and racial discrimination against children of mixed races in Japanese schools.  This happens by both other students and unbelievably by teachers as well.
• Information testifying to the fact that Japanese courts rarely recognize foreign family court orders, and cannot enforce their own orders much less those of the occasionally recognized foreign court: US State Department evidence about family law problems in Japan
• Descriptions of Japanese society illustrating social customs that may be morally objectionable in other countries, such as vending machines selling used underwear and alcohol on streets, defacto legal prostitution (deri heru, soaplands, flyers advertising sex services delivered to homes, etc.), acceptability of exchanging sex for money (telephone clubs, enjo kosai, etc.), US State Dept watch list for human trafficking pornographic children and adult comics widely available, ineffective child and spouse abuse laws and a rapidly rising child abuse rate.

Non-Japan Case Law

This section contains related but non-Japan specific case law.  It also contains suggestions for requests to a judge who is issuing a custody order concerning a Japanese parent.

Sources: Almost all of the introductory text and and the case law in the following sections are taken from "Parental Kidnapping Prevention and Remedies" an American Bar Association publication by Patricia M. Hoff.  Their website has much more useful information on this subject.

Judges may be wary about ordering protective measures absent a strong showing

• Al-Zouhayli v. Al-Zouhayli.  486 N.W. 2d 10 (Minn. App. 1992) is illustrative. In Al-Zouhayli, the Minnesota Court of Appeals refused to restrict visitation absent a showing by a preponderance of the evidence of a strong probability of abduction. In that case the court found that the plaintiff mother had not met her burden, despite evidence of the father’s dual citizenship (U.S. and Syria), and the trial court’s finding that if the father abducted the child to Syria or Saudi Arabia, where his relatives lived, courts in those countries would not honor Minnesota’s custody order and would award custody of the child to the father. However, these same risk factors were sufficient for the trial court to direct mother to retain the child’s passport and to prohibit father from applying for a replacement passport without the written consent of the mother or the court, and to limit visitation to the city, on the condition that the father remain employed.
• Joseph D., 19 Cal. App.4^th 678 (1993) (Court temporarily suspends mother’s custody rights upon finding that mother presents a risk of flight with the child).

Pre-Custody Injunctions

If the risk of abduction arises before there is a custody order, in many jurisdictions it is possible to seek emergency injunctive relief. As a general rule, any relief granted by a court on an emergency basis is temporary. (See the UCCJEA.) The next step is to get a custody determination that incorporates safeguards on a more permanent basis.

• People v. Beach, 240 Cal. Rptr. 50 (Ct. App. 1987) (threatened abduction presents an emergency sufficient for the exercise of jurisdiction under the UCCJA and the issuance of an interim custody order prohibiting removal of the child from the state).

Restricted Removal from jurisdiction

Include a provision limiting the right of the noncustodial parent to remove the child from the state and the country. The language should expressly restrict removal from the United States. The restriction may be absolute: the noncustodial parent shall not remove the child from the state or country. Or, the noncustodial parent may be prohibited from removing the child from the state or country without prior consent from the judge or written consent from the other parent.

• People v. Beach, 194 Cal. App.3d 955, 240 Cal. Rptr. 50 (1987)(threatened abduction from state sufficient for exercise of emergency jurisdiction and “no removal from state” order);
• Mitchell v. Mitchell, 311 S.E.2d 456 (Ga. 1984) (Restrictions on removal of children from the country were upheld based on a finding that father would have no means of enforcing Georgia order if mother took children to United Arab Emirates, but restrictions on removal from state violated state case law);
• Soltanieh v. King, 826 P.2d 1076 (Utah App. 1992)(Risk of flight to Iran warrants order restricting father from removing the child from the country).

Restrict Relocation with the child

A noncustodial parent may seek to restrict the custodial parent’s right to relocate with the child out of concern that the child will be moved so far as to obstruct meaningful access, or that the country that will not honor an American custody order. To protect visitation rights, a noncustodial parent may seek a provision requiring the custodial parent to give advance notice, or obtain the court’s permission, before relocating with the child. Some courts have interpreted such provisions as giving the noncustodial parent ‘custody rights’ within the meaning of the Hague Child Abduction Convention, and thus the right to seek return under the Convention. Others have rejected this interpretation.

Love v. Love, 851 P.2d 1283 (Wyo. 1993); Taylor v. Taylor, 849 S.W.2d 319 (Tenn. 1993);

In re Marriage of Burgess, 913 P. 2d 473 (Cal. 1996); companion cases Tropea v. Tropea and Browner v. Kenward, 665 N.E.2d 145 (N.Y. 1996); Condon v. Cooper, 73 Cal. Rptr. 2d 33 (Cal. App. 1998)(Custodial mother may to move to Australia if she agrees to concede to the continuing jurisdiction of the California court over custody matters and accepts imposition of sanctions should she violate the concession of jurisdiction. The court reviewed the evolving law governing disputes when a custody parent proposes to move away with the child, and explored the unique factors when the proposed relocation is to a foreign country: (1) cultural problems; (2) distance problems; and (3) jurisdictional problems.)

General Visitation Rights

An award of “reasonable visitation” in a custody order is a predictable source of friction because of the vagueness of the language. For instance, just what is “reasonable? Who decides? When does a visit become a wrongful withholding of the child? When does the refusal to turn a child over for visitation become wrongful? The latter two questions have criminal law implications. Law enforcement officers are reluctant to intervene in vague custody/visitation situations. This could potentially deprive an aggrieved parent of invaluable law enforcement assistance when a child has been abducted or wrongfully retained.

A good way to avoid questions about visitation rights is to define them as precisely as possible in the court order. Set forth the start and end days, and times, for visitation. Allocate holidays and birthdays in the order. If telephone access is contemplated, this should be specified. When international visits are contemplated, the court order may include a provision specifying the date on which the child is to be returned, and that any retention beyond the stated date shall be deemed a wrongful retention within the meaning of the Hague Child Abduction Convention unless prior written consent is obtained from the custodial parent or the court.

• Soltanieh v. King, 826 P.2d 1076 (Utah App. 1992)(Risk of flight to Iran warrants order restricting father from removing the child from the country).

Supervised Visitation

Some situations warrant supervised visitation orders (unless the court suspends visitation altogether), e.g., when an abduction has already occurred, or threats have been made to abduct the child; when there is evidence of domestic violence or child abuse; when there is a possibility the child will be abducted to or kept in a country from which recovery would be difficult or impossible.

Supervised visitation may take place at the home of the custodial parent, a supervised visitation center, or any other location designated by the court. The court should identify the person or agency responsible for supervising visits, such as a law enforcement officer, a social worker, a clergyman, a relative, agency.   Supervised Visitation Network

Bonds and writs ne exeat

Where there is a history of custodial interference or a likelihood of flight, lawyers may seek writs ne exeat, which prohibit a party from leaving the jurisdiction. Bonds are a stronger abduction deterrent. They are often ordered in conjunction with writs ne exeat.

A court may order a parent to obtain a bond in an amount that would be a financial deterrent to abduction, taking into account that parent's financial circumstances. Typically, noncustodial parents may be ordered to obtain a bond, but similar requirements may be imposed on custodial parents who interfere with visitation. If the parent that posts the bond abducts the child (or otherwise violates the conditions of the bond), the bond proceeds generally go to the aggrieved parent, who may use the money to search for the child, hire legal counsel to enforce custody orders, etc.

In custody modification cases, the fact that the decree court has issued a writ ne exeat and/or ordered a parent to post a bond may be construed as evidence of that court’s intention to exercise continuing jurisdiction.

Obtaining a bond. Information on obtaining child custody/visitation bonds may be obtained from the Professional Bail Agents of the United States (PBUS). Contact the Executive Director at 1-800-883-PBUS, (202) 783-4120; or visit the Web site, www.PBUS.com.

• Alabama: Rayford v. Rayford, 456 So.2d 833 (Ala. Civ. App. 1984)(affirmed trial court order requiring noncustodial father to post $5,000 bond to insure compliance with visitation orders. Father had previously violated order and concealed children for three years)
• Arkansas: Koroklo v. Koroklo, 787 S.W.2d 241 (Ark. 1990)(mother shall be required to post an additional $5,000 bond and ordered not to remove her child from the state if trial court allows mother visitation with her child during pendency of her appeal of a contempt order and jail sentence)
• Colorado: In re Colorado, in the Interest of B.C., No. 99SA127, 1999 Colo. LEXIS 504 (Colo. 1999)(District court has authority to issue a writ ne exeat to ensure that the noncustodial father does not flee the court’s jurisdiction and thereby evade the hearing on whether he should be held in contempt of the court’s order for removing his child to Jordan)
• Hawaii: Bullard v. Bullard, 647 P.2d 294 (Haw. Ct. App. 1982) (affirmed trial court’s order requiring out-of-state father to execute a bond of $2,500 conditioned upon return of child to Hawaii after visitation. “We view such bond requirements with disfavor... courts should require such a bond only if...there is substantial likelihood that its order will be violated absent the bond. Additionally, the terms of the bond must be reasonable under the circumstances.” at 301)
• Idaho: Biggers v. Biggers, 650 P.2d 692 (Idaho 1982) (affirmed trial court’s order requiring out-of-state custodial mother to post bond to ensure her return to state with children for hearing)
• Louisiana: Fuge v. Uiterwyk, 653 So. 2d 708 (La. Ct. App. 1995) (Trial court had sufficient cause to require noncustodial father to post a $100,000 bond, based on annual income of not less than $400,000, to ensure his compliance with the visitation order)
• Michigan: Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996) (noting, in this Hague Convention case, that divorce decree between mother and ex-husband prohibited her from taking children abroad for more than sixty days at a time and required her to post a $30,000 bond to enforce this provision)
• Mississippi: Ayers v. Ayers, No. 97-CA-01148-COA, 1999 Miss. App. LEXIS 14 (Miss. Ct. App. 1999) (Chancellor did not err by requiring mother to post a $1,000 ne exeat bond approved by the sheriff before removing the children from Mississippi because there was evidence that she had previously left the state and deprived father of seeing the children.); Roberts v. Fuhr, 523 So. 2d 20 (Miss. 1987) (Forfeiture of ne exeat bond and finding that out-of-state custodial father was in contempt were proper and required to enforce mother’s visitation rights with child)
• New York: Dennis W. v. Alice W., 579 N.Y.S.2d 154 (N.Y. App. Div. 1992) (affirmed trial court’s order directing father to establish an escrow account in the amount of $15,000 to ensure the prompt return of the children to their mother at the end of each visitation period, where father had absconded with the youngest child out of the country for several months without mother’s knowledge or permission, but modified automatic forfeiture provision, instead giving court authority to fashion appropriate remedy in case of violation personally responsible for the return of the child at the end of visit); David S. v. Zamira S., 574 N.Y.S. 2d 429, 430 (Fam. Ct. 1991) aff’d, Matter of Shnier, N.Y.L.J. Feb. 27, 1991 at 23, col.2 (N.Y. App. Div. 2d Dept.), 17 FLR 1237 (deposit of cash in lieu of bond); S. Frederick P. v. Barbara P., 454 N.Y.S.2d 202 (Fam. Ct. 1982) (Court denied custodial mother’s request for bond, but made father’s attorney personally responsible for the child’s return at the end of visitation.“[F]ailure to honor its terms will be actionable personally against counsel under the Code of Professional Responsibility.” at 207)
• Rhode Island: Goldstein v. Goldstein, 341 A.2d 51 (R.I. 1975) (affirmed trial court order giving custody to father who resided in Israel provided that he permit the mother four weeks of visitation and post a $1,000 bond to guarantee his compliance with the order)
• Tennessee: Greene v. Greene, C.A. No. 89-392-II, 1990 Tenn. App. LEXIS 318 (Tenn. Ct. App. 1990) (father required to post $25,000 bond against the possibility that a Hague application might be needed to secure the return of children who would be visiting him in Canada, in order to defray all costs that mother might incur should he fail to abide by the custody decree. The court noted that there had not been any indication that the father was inclined to abduct the children, but because of the degree of bitterness between the parents, posting the bond was deemed appropriate)

Avoiding Joint Custody

While joint custody may be a desirable option for parents who agree to it and can communicate and cooperate, it does not work in all family situations. If possible, joint custody should be avoided in cases involving family violence, a history of parental kidnapping, risk factors for abduction, friction between the parents, opposition by either parent, and parents who reside in different states or countries.

The American Bar Association Family Law Section adopted a Model Joint Custody Statute in August 1989. The Model Statute expressly states, “Joint custody is inappropriate in cases in which spouse abuse, child abuse, or parental kidnapping is likely to occur.” Section (1) Policy. The Model Statute also requires the court to consider “any history of or potential for child abuse, spouse abuse, or parental kidnapping” and “the geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody” in determining whether a joint custody order is in the best interests of the child when the parties do not agree to joint custody. Section 3(c) Factors Considered.

When joint custody is ordered, the order should state clearly the child’s residential arrangements. This is true even when the parents are on friendly terms. In the absence of specificity as to the child’s residential arrangements, courts may find it difficult to enforce the order, police may be reluctant to intervene, and prosecutors may be wary about prosecuting parental kidnapping crimes.

• Marzouki v. Marzouki, 572 N.W.2d 902 (Wis. Ct. App. 1997) (affirmed trial court’s award of sole legal custody to mother, and ordering supervised visits, based on a finding that certain conditions exist that would substantially interfere with the exercise of joint legal custody, most notably that the parties do not live in the same country (mother feared father would abduct child to Tunisia), and are not able to cooperate in future decision-making);
• MC v. MC, 521 A. 2d 381 (N.J. Super. Ct. App. Div. 1986) (joint custody order would be inappropriate since cooperation between American mother and Irish father is virtually nonexistent).

Authorize law enforcement assistance

Many law enforcement officers are unclear about their role in preventing and responding to parental kidnapping cases. A provision in the custody order directing law enforcement officer to “accompany and assist” a parent to recover an abducted child may be helpful.

Prohibit unauthorized pick up of the child

The court order may prohibit the non-custodial parent from picking up the child from school, daycare centers, and babysitters, unless the custodial parent gives written permission.   Bring a copy of the court order to each of these and ask them to comply.

Prohibit application for a new or replacement passport for the child. 

Under Section 236 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act Fiscal Years 2000 and 2001 (Pub L. 106-113, 113 Stat. 1937-422; 18 U.S.C. 1621(a)(2)), the Secretary of State is required to publish new regulations providing that both parents must execute a passport application on behalf of a minor under age 14. If only one parent executes the application, that parent must provide documentary evidence that he/she has sole custody of the child; has the consent of the other parent to the issuance of the passport; or is in loco parentis and has the consent of both parents, of a parent with sole custody over the child, or of the child’s legal guardian. The law further provides that implementing regulations may provide for exceptions in exigent circumstances, such as those involving the health or welfare of the child, or when the Secretary of State determines that issuance of a passport is warranted by special family circumstances.  A proposed rule implementing the law was published in the Federal Register: October 10, 2000 (Vol. 65 No. 196) at pp. 60132-60136.

Prohibit the noncustodial parent from applying for new or replacement passports for the child without prior written consent of the custodial parent or the court. The court may direct the foreign-national parent to notify his/her embassy or consulate of the order prohibiting that parent from applying for a new or replacement passport for the child, and further require the parent to furnish the court with an acknowledgment letter from the foreign embassy or consulate. Caveat: A foreign governments are not bound by U.S. court orders and may issue passports to children who are their nationals. However, a court order may be persuasive and the foreign government may comply voluntarily.

• Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 10 (Minn. Ct. App. 1992). In some cases the non-custodial parent might seek a similar restriction against the custodial parent.
• In Mitchell v. Mitchell, 311 S.E.2d 456 (Ga. 1984), the court upheld an order enjoining both parents from procuring a passport for the children or applying for passports for the children without the written agreement of the other parent. It also affirmed court order prohibiting both parents from removing the children from the country and from applying for or procuring a passport for their sons without the consent of the other parent or by court order, based on a finding that the U.S.-citizen father would have no means of enforcing a Georgia custody order if the Lebanese mother took the children to the United Arab Emirates. The court distinguished between restricting child’s removal from the country, which is justified, from restricting removal from the state, which is not.

Surrender passports prior to visits.

The court may direct the noncustodial parent to surrender all passports in his or her possession (belonging to the parent and the child) to a designated person or entity designated prior to visiting the child.

• McEnvoy v. Helikson, 562 P.2d 540 (Or. 1977), the Oregon Supreme Court recognized the right of a father to sue his ex-wife’s lawyer for malpractice and negligence for conduct which allegedly resulted in the removal of his daughter from the country in violation of his custody rights. In McEnvoy, the defendant-attorney returned passports to his Swiss client (the plaintiff’s ex-wife) before she had returned the child to the father, who was legally entitled to custody. The premature return of the passports violated a stipulation incorporated into the court order. Passports in hand, the plaintiff’s ex-wife left Oregon with their child and returned to Switzerland, contrary to the purpose of the court order and stipulation. The father sought $500 in damages for the attorney’s negligence, and $1,750,000 for the loss of companionship, love and affection of his child, for anguish and mental suffering due to the loss of his child, and for the continuing nature of these wrongs. Comment: This lawsuit and the child’s abduction to Switzerland were both avoidable. The lawyer entrusted with holding passports should not have returned the passports to the Swiss mother until after the child had been restored to the custodial father.
• Economou v. Economou, 274 Ca. Rptr. 473, 486 (Cal. App. 1990) (upheld order requiring noncustodial father to deposit his U.S. and Greek passports with the Clerk of Court prior to visitation, and limiting visitation to the local area); Farrell v. Farrell, 351 N.W.2d 219 (Mich. Ct. App. 1984) (father residing in Ireland required to surrender passports); Klien v. Klien, 533 N.Y.S.2d 211 (1988) (following pre-decree abduction of children to Israel, father ordered to return children and surrender all passports to mother);
• Anonymous v. Anonymous, 503 N.Y.S. 2d 466 (App. Div. 1986) (“In light of [noncustodial father’s] prior threats to take the child to Algeria and [his] ability to remove the child on [his] passport, a temporary surrender of the passport was reasonably necessary to prevent removal of the child.”);
• David S. v. Zamira S., 575 N.Y.S.2d 429 (Fam. Ct. 1991) (noting that mother was to place $10,000 in escrow, subject to forfeiture to father, if she and/or children fled the jurisdiction, and that mother and both children’s passports were to be surrendered and placed in escrow);
• Soltanieh v. King, 826 P.2d 1076 (Utah App. 1992)(based on trial court finding of risk that father would take child to Iran, father required to deposit his passport and visa with clerk of court, to get a court order to remove them, and not to remove the child from the country).

Obtain mirror image order.

As a condition prerequisite to allowing a child to travel abroad for visits, the court may require the noncustodial parent to obtain an order from a court in the country where visits are to occur with terms identical to the U.S. custody order. Caveat: In some countries, it may not be possible to obtain such an order. Moreover, the foreign court may change the underlying order or ignore provisions that conflict with their internal laws. Also be aware that some countries lack the legal mechanisms to enforce even their own orders.

• Tichendorf v. Tichendorf, 321 N.W. 2d 405 (Minn. 1982) (affirmed trial court’s decision to permit father to visit with his son in Germany for three weeks in the summer, but remanded to trial court to include in the order requirements that father must give a letter of credit to mother for more than $10,000, furnish round-trip transportation for an adult to accompany the child to Germany, and obtain an order from an appropriate German court recognizing the exclusive jurisdiction of the American courts over custody and acknowledging a duty to enforce the mother’s right to custody).

Provide assurances of return from foreign visits

In conjunction with allowing visits in another country, a court may require a non-custodial parent to give assurances that the child will be returned. For instance, a court may order a non-custodial parent to provide the custodial parent with the child’s travel itinerary (e.g., copies of round-trip airline tickets), a list of addresses and telephone numbers where the child can be reached at all times, and an open airline ticket for the custodial parent in case the child is not returned.

Tichendorf v. Tichendorf, 321 N.W. 2d 405 (Minn. 1982) (affirmed trial court’s decision to permit father to visit with his son in Germany for three weeks in the summer, but remanded to trial court to include in the order requirements that father must give a letter of credit to mother for more than $10,000, furnish round-trip transportation for an adult to accompany the child to Germany, and obtain an order from an appropriate German court recognizing the exclusive jurisdiction of the American courts over custody and acknowledging a duty to enforce the mother’s right to custody).

Define terms to clarify jurisdiction (and facilitate use of the Hague Child Abduction Convention in other countries)

Include a provision in the custody order declaring the United States to be the child’s country of habitual residence. Provide supporting facts. Though not binding on a foreign court applying the Convention, such a statement may be persuasive. Where possible, describe custody rights in terms of “the right to determine the child’s place of residence.” Again, while not binding, this may help clarify for a foreign court that the person seeking return has “custody rights” which give rise to the return remedy under the Convention.

Pick up orders.

If it is likely that the abductor-parent will flee the jurisdiction upon receipt of notice of an enforcement hearing, seek a “pick-up order,” pursuant to which local law enforcement officers take physical custody of the child and serve notice on the abductor of the enforcement hearing, which is held soon thereafter. Law enforcement officers are typically directed to bring the child before the court, or to place the child with the custodial parent or other designated party, pending the enforcement hearing.

Legal Help to Locate Child if an abduction occurs

NCMEC and support groups can provide useful information to help guide a parent’s search efforts. A lawyer may be used to seek subpoenas for bank and telephone records of the abductor, and ask the court to request the Federal Parent Locator Service to search its computer files for address information on the abductor. This is authorized in the PKPA.

Attorney disclosure of address information.

Courts have compelled attorneys to disclose their clients’ whereabouts, notwithstanding the attorney-client privilege, in child abduction and other family law cases.

• Jafarian-Kerman v. Jafarian-Kerman, 424 S.W.2d 333 (Mo. Ct. App. 1968);
• Matter of Jacqueline F., 391 N.E.2d 967 (N.Y. 1979);
• Dike v. Dike, 448 P.2d 490 (Wash. 1968);
• Bersani v. Bersani, 565 A.2d 1368 (Conn. Super. Ct. 1989).

Criminal Prosecution

Regina vs. Nathalie Gettliffe-Grant Sentencing Reasons; December 4, 2006.   In this Canadian case a mother who abducted their children to France was arrested on a trip back to Canada.  Despite being pregnant with another child, she was kept in jail and gave birth there.  She was given a further 6 month jail sentence and 3 years probation only after returning the children.

Tort Damages. 

One possible avenue for relief, which may also produce leads in the search for the child, is a tort action for damages stemming from the wrongful removal, retention or concealment of a child. Causes of action include intentional infliction of emotional distress, outrageous conduct, and interference with custody or visitation. Cases have been successfully maintained against the abductor-parent, friends, relatives, lawyers and others in many federal and state courts.

• Lloyd v. Loeffler, 539 F. Supp. 998 (E.D. Wis. 1982), aff’d, 694 F.2d 489 (7th Cir. 1982);
• Pankratz v. Willis, 744 P.2d 1182 (Ariz. Ct. App. 1987);
• Wood v. Wood, 338 N.W.2d 123 (Iowa 1983);
• Kramer v. Leineweber, 642 S.W.2d 364 (Mo. Ct. App. 1982);
• Raftery v. Scott, 756 F.2d 335 (4th Cir. 1985);
• Fuller CATV Construction, Inc., v. Pace, 780 P.2d 520 (Colo. 1989).

Only a few courts have rejected a separate cause of action for custodial interference.

• Larson v. Dunn, 460 N.W.2d 39 (Minn. 1990)(Supreme Court refused to create a tort of intentional interference with custodial rights);
• Zaharias v. Gammill, 844 P.2d 137 (Okla. 1992)(Court refused to recognize father’s claim against his in-laws for tort of custodial interference, but allowed his cause of action for intentional infliction of emotional distress on same facts).

If Your Lawyer Malpractices

When there are factors present that indicate a heightened risk of child abduction, the lawyer should petition the court for safeguards that are appropriate to the facts and circumstances of the case. Given the high incidence of child abduction, these cases are not rare occurrences and concerns about abduction should not be ignored. In fact, failure to heed a client’s concerns about abduction threats and to seek protective measures may result in malpractice litigation.

• Shehade v. Gerson, 500 N.E.2d 510 (Ill. App. Ct. 1987), is illustrative. In Shehade, the plaintiff-mother had been awarded temporary custody, and the defendant-Jordanian father had visitation rights. After the father failed to return the child from a visit, the mother contacted her attorney to ask him to obtain an order prohibiting unsupervised visits by the father. No action was taken. When the father repeated his refusal to return the child from a visit two weeks later, the mother immediately contacted her attorney, told the lawyer she believed the father was planning to abduct the child, and asked the attorney to take appropriate legal action to prevent the father from carrying out his threatened removal of the child from the U.S. The lawyer failed to act. One week later, the father abducted the child to Jordan. The mother then sued her lawyer for his failure to seek an order barring unsupervised visitation by the father pursuant to her two requests. On appeal, the mother’s malpractice claims against her lawyer were reinstated.

Articles

• CUSTODY BATTLE: Court to decide child's country; Home News Tribune Online; May 2, 2007. (cached copy)
• Jury awards father $3 million: Millersville man's children were taken to Egypt illegally by their mother in 2001; The Baltimore Sun; December 15, 2006.  This outlines an civil case one could bring in court to pressure a parent to return a child.  This particular example is US specific, but this strategy may work in other western countries also.  (cached copy)