When Your Ex Emigrates With Your Children


August 4 , 2014

Source: separated dads

The modern world is getting smaller, with more and more people living and working abroad.

It’s no surprise that the number of international families is on the increase but what happens to the kids when these relationships break down and the mother wishes to return to their home country with the child? What rights does the father have?

children-parent

Your Rights

If both parents have parental responsibility for a child it is a criminal offence in the UK to emigrate with a child without the permission of the other parent or without an order of the Court. Parents have Parental Responsibility for children in the following circumstances:

  1. The Mother – always has PR
  2. The Father – if he was married to the Mother, or if he was named on the birth certificate and the child was born after 1st December 2003 or if there is a PR agreement stamped by the Court

Outcomes

There are 4 outcomes if one parent wants to take the child abroad to live permanently:-

  1. Permission refused by the Court and the Mother abandons her plans or the child moves to live with the Father
  2. The Mother and child emigrate with the Father’sagreement
  3. Lawful removal of the child by the Mother
  4. Unlawful removal of the child by the Mother

Outcome 1 is self-explanatory but let’s looks at the other 3 outcomes in more detail:

Outcome 2 – Emigrate with Father’s Agreement

Where the parents reach an agreement which permits one parent to move abroad with the child whist ensuring that they maintain a good relationship with the other parent. International travel is much cheaper and often parents agree a schedule of annual contact involving return trips to the UK in the school holidays and weekends and visits by the non-resident parent to the child’s new home. Other forms of contact can be agreed upon such as Skype, telephone, email and Face time.

 

In these circumstances it is always wise to apply to the Court to request an order in the agreed terms to prevent any problems further down the line. A court order may also be required by the immigration authorities if the proposed move is by a non-national who requires a Visa. Depending upon the Country where the child is going to be residing, it may be necessary to obtain a mirror order in the new state reflecting the terms of the English Court order. You cannot assume that Court Orders made here are enforceable abroad. If the move is to an EU country the order would be directly enforceable but unless the English court order expressly retains jurisdiction, it will pass to the new state after 3 months and in theory an application could be made in the new state to vary the agreed terms. If the new home is a signatory to the Hague Convention, the Central Authority in London can assist in enforcing a contact order abroad. If the new home is outside the EU and is not a signatory to the Hague Convention, for example Arab States and the Far East, retaining jurisdiction here or obtaining a mirror order is the best form of protection.

Outcome 3 – Lawful Removal of Child

Where parents cannot agree it is necessary for the parent wishing to remove the child to apply to the Court for permission to do so. If permission is granted, contact will also be ordered. This will then result in the lawful removal of the child. Depending on the child’s destination and whether that country would enforce the English Court order (as in EU Countries) it may be necessary to obtain a mirror order in the new home country to ensure contact is maintained. See above ” 2 .Agreement”

Outcome 4 – Unlawful Removal of Child

Where parents cannot agree and the parent wishing to leave simply takes the child without permission, this is parental child abduction. It is a criminal offence to remove a child from the UK without the permission of the other parent or order of the court (save for where the parent has a residence order and removal is for less than 28 days). If you suspect that your child has been taken abroad you will need to access specialist legal advice immediately. In some cases it is possible to stop a child leaving the country by notifying the ports and airports who will place the child’s details on a watch list. If the child has already left the UK, a lot will depend upon where they have gone and whether that country has an agreement with the UK to return wrongfully removed children. There are unfortunately circumstances where children are not returned which could result in the child losing its relationship with the other parent.

how-PAS-affects-children

If you are separated from your child’s mother and these issues arise for you it is important that you obtain specialist advice from a family lawyer with an international background which will enable you to consider the best way forward for you and for your child to ensure your relationship is maintained.

About the Author

This was a guest post written by Louise Halford, a family law Partner at Pannone LLP who specialises in child abduction.

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Dominican Republic: A Haven for Parental Child Abductions


August 23, 2012

Source: prlog.com

In January 2011 the two children of Robert Makielski where illegally taken to the Dominican Republic by their mother, Maria Rivera-Estevez. The mother removed the children from Virginia without the father’s authorization as required in a current custody order. The existing court order defined the U.S. as habitual residence for the children. On July 25, 2012 the Dominican Republic’s Court of Appeals upheld the trial court’s ruling denying the children be returned to their habitual residence.

Culpeper, Va. 7 August 2012 A Virginia father faces overwhelming odds to have his two children returned from the Dominican Republic. After using the “Hague Convention on Civil Aspects of International Child Abduction” process the Dominican Republic Court of Appeal denied the return of the children based on a grave risk exception. The Dominican Republic now has case law that will make difficult to return any abducted child to their habitual residence.

“Because of the harmful effects on children, parental kidnapping has been characterized as a form of child abuse”

In February 2011, Mr. Makielski filed a Hague application (The Hague Convention on the Civil Aspects of International Child Abduction, or Hague Abduction Convention) with US State Department in which he accrued considerable expenses to have all documents translated to Spanish. Although there was a pending divorce on the Culpeper circuit court docket, Maria Rivera had filed for divorce and custody in the Dominican Republic.  In violation of Hague article 16 the Divorce was heard without Mr. Makielski’s knowledge.  He had to retain counsel in the Dominican Republic to have the Dominican divorce dismissed.

For the Hague application, the first hearing took place in May 2011 where the judge ruled to allow the mother time to gather additional evidence.  Contradictory to the Hague treaty, the Dominican Judge ordered the father’s physical presence in the D.R. court.  Due to threats posted by parties related to Ms. Rivera, the father’s availability via online video conference, and his safety and security could not be guaranteed; he did not travel to the country. The judge refused to allow him to appear by video conference. Additionally, a representative from the US embassy was not permitted to attend the hearings. Two further hearings took place in June.  The Dominican judge did not allow the parties or their attorneys to be present during the testimony of the daughter; only the Judge and the 2 Dominican psychologists were present.  In July the hearings continued.

The father provided translated and apostilled documentation showing he had no pending charges, no criminal record and no sex offender record existed. On August 4, 2011, Consejo Nacional Para la Niñez y la Adolescencia (CONANI the Dominican Central Authority) and father’s Attorney presented closing arguments requesting the return of the children. On October 4, 2011, The Dominican court released its decision to deny the return of the children based on Article 13b of the Hague treaty. Article 13b states an application for return can be denied if there is a grave risk that a return would expose a child to physical or psychological harm or otherwise place the child in an intolerable situation. An Appeal was filed and heard on December 14, 2011 and July 17, 2012. On July 25, 2012 the Court of Appeals upheld the trial court’s ruling.

In April 2011 the U.S. embassy performed a Health and Welfare visit. The mother has refused to allow any subsequent visits. Since then the mother has prohibited any further visits with the children. The Dominican Republic Government has not allowed Mr. Makielski any contact with his children. He has not seen or heard from his children since January 18, 2011.

Parental-child-Abduction

The children were located in the ”Ensache Ozama” neighborhood of Santo Domingo where they are now are exposed to an extremely diminished standard of living.  Since then that have moved to another barrio close by in Santo Domingo Este. At the time of the removal, the daughter was enrolled in the public schools gifted student program. The World Economic Forum ranks the DR at 139 out of 147 for education. Compared to their home in the US, this neighborhood suffers from the social problems of high crime, lack of garbage collection, frequent blackouts and unclean water.

To learn more about this parental abduction, visit http://storify.com/guitarski/a-dominican-parental-child-a…

About the Hague Convention on Civil Aspects of International Child Abduction
The objects of the present Convention are to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and 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 Conference has currently 72 Members including the United States. The Dominican Republic is not Member of The Hague but has ratified and acceded to the Hague Convention.

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Father sentenced to prison for kidnapping son


August 7, 2012

Source: utsandiego.com

LOS ANGELES — A judge has sentenced a California man to 27 months in prison for abducting his son and taking him out of the United States in 2008 without his ex-wife’s consent.

John Silah was sentenced Monday in federal court.

His brother George Silah received the same 27-month sentence last May for abducting his two sons and taking them out of the country, also without their mother’s consent.

The brothers were extradited to the U.S. after they were found in the Netherlands with their sons in November 2010.

Authorities say the international flight began after the Silah brothers picked up their sons for visits. They traveled through Mexico, Central America and Europe before getting caught.

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What can I do if my child is abducted?


June 30, 2012 – ABP World Group Child Recovery Services

Source: takelegaladvice.com

International child abduction is on the increase, according to family lawyers.
This fact is highlighted by the latest case to hit the newspapers – a seven year old child living abducted by her father Clark Rockefeller, during a supervised visit to him in America.
Reigh Boss, who lives in London with her mother, has not yet been found and, according to the press,  it seems that her father planned to take her, with  Reigh bundled into an accomplice’s waiting car, despite the attempts of a supervising social worker to stop him.
As family lawyers point out, marriages between couples of different nationalities have become more common over the last few decades – and international child abuction is consequently on the increase. Travel is now between countries and continents, which makes it  easier to abduct children.
Since it is usually the mother with whom young children are living, fathers are more often the abductors. (This is not correct. Red.) Mothers stands for approx.70% of all the abduction cases.
The problem has become so acute that the majority of civilised countries have signed international agreements to ensure that their courts will order the return of a snatched child to the parent from whom he or she was removed.
Sadly, there are some countries which are not signatories to these agreements.   When a child is removed to one of these, it may be difficult or even impossible to recover the child.
If you are afraid that your child might be abducted and taken abroad  by the other parent, you can alert your local police station.
If the threat of removal is ‘real’ and ‘imminent’ and you have evidence  to support your fear, police will circulate details of the possible abductor and child to all UK points of departure via the Police National Computer.
You can also write to your regional office of the UK Passport Service requesting them not to grant a passport to your child.
The International Child Abduction and Contact Unit [ICACU] is the authority responsible for  dealing with child abduction in England and Wales.
If you believe that your child is in danger of being abducted, ICACU advise that you keep the following information, or as much as is possible, ready:
On the Child:  – full name
-date and place of birth
– passport number, date and place of issue
-photographs or a physical description
– any entitlement to a passport other than a British passport
On the Person Who has Taken the Child:
– full name [including prior or maiden name and any aliases if applicable]
– date and place of birth
– passport number, date and place of issue
– photograph or a physical description
-occupation
– probable date of departure
– departure information [eg flight, train, ferry]
–  details of ties to a foreign country – eg names, addresses and telephone
– numbers of relatives, friends or business contacts.
 
Copies of Documents:
–  any agreements or court orders which relate to the child
– child’s birth certificate
– marriage certificate or divorce decree
– name and address of solicitor [if you have one]

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The Financial Cost of Parental Child Abduction


June 9, 2012

Source: Bring Sean Home Foundation, by: Timothy Weinstein

Parental abduction of a child, by itself, is a traumatic event for the left-behind parent. Brazil alone has over 50 cases of abduction from the United States representing over 70 children, my own two included. In addition to the emotional costs the left-behind parent must endure, one must understand the financial costs.

Due to my personal experiences, this article will focus on Brazil.

Consider the case of David Goldman; in the 4 ½ years since his son, Sean, was abducted, he has spent over $360,000 in legal and travel expenses. He is not alone and according to a December 27, 2008 article published in the Financial Post, “[Francois Larivee] has burned through $150,000, and still there is no end in sight.”

Add to this list, Marty Pate who to date has spent over $135,000, Klaus Zensen who has spent $65,000, Alessandra Oliveira is at $30,000 and counting – and the list goes on and on. Yet not one of these parents has their child back home.

From this, it appears rather obvious that the only people winning are the attorneys.

At least one parent, Gary Reilly, whose twin sons were abducted to Brazil in April, 2004, never petitioned for the return of his children due to the perceived cost of litigation. As told in a thread on BringSeanHome.org, when he consulted an attorney, “He also told me that if I went to court, be prepared to pay a minimum of at least $100,000, before anything was decided.” A different attorney in Brazil, when asked what it would cost to present in court a Hague Convention case, quoted $30,000 plus another $20,000 if the case was won. When asked if the definition of winning meant that the child was returned, the answer was “No”. Winning simply meant that the first judge ordered the return of the child, not mentioning the likely rounds of appeals.

How tragic it is that a lack of money rather than a lack of love could keep a parent from their child.

There are however, certain legal strategies one could use to help alleviate the costs of expensive litigation related to a petition under the Hague Convention on the Civil Aspects of International Child Abduction. One such strategy is to sue the abducting parent (and any accomplices) in the United States courts. If you’re lucky enough, they may have assets you can retrieve. Related to this strategy, David Goldman reached a settlement with his child’s grandparents for $150,000 – a lot of money until one considers that he has spent over twice that so far in litigation. Another father, Marty Pate, was awarded $65,000 in U.S. courts, an amount unfortunately, he’ll likely never see. In an unprecedented 2008 ruling in Maryland, Michael Shannon (Shannon-vs-Khalifa), whose two sons were abducted to Egypt was awarded a massive $3 million jury award – upheld on appeal. Yet the sting in the tail is that there are no U.S. assets to make the judgment work; the children are gone and remain overseas with no contact with their father.

It doesn’t have to be this way.

According to Article 26 of the Hague Convention,

“Central Authorities and other public services of Contracting States [think country] shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers.”

Although it allows a Contracting State to make a reservation when it accedes to the Convention, thus removing itself from this obligation, Brazil has not.

Article 26 continues by stating,

“Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.”

What does all of this mean?

First, a left-behind parent may request an attorney from the AGU [think attorney general] in Brazil. In this instance, the Brazilian government itself becomes the plaintiff and assumes the legal fees. I, along with others, have used this arrangement, leaving precious financial resources available for travel and other expenses rather than legal fees. Please read Tough Decisions for a Left-Behind Parent for a discussion of the advantages and disadvantages in this arrangement.

Second, it allows the left-behind parent to sue in Brazil for all costs they incurred in the fight to have their child returned to his or her habitual residence. This however is predicated on the Brazilian court system first ordering the return of an abducted child to the United States, something the courts have, so far, loathed to do.

Where does this leave us?

Back to the first sentence of this article. While international child abduction is an inexcusable tragedy with a huge emotional bill, averting the financial cost is possible. However, it is highly problematic and there is still no help with a large part of the overall costs which are not legal related – travel, accommodation and simple living expenses – and this assumes you know where your child is to start the process in the first instance.

June, 2012 updates

David Goldman: In December 2009, Sean Goldman was returned to his father. As of the date of this update, litigation continues in both the United States and Brazil and Mr. Goldman has incurred more than $750,000 in legal and travel expenses.

Marty Pate: Having run out of money to pay his attorney, Mr. Pate was unable to file a timely appeal in Brazil. He subsequently filed for bankruptcy in the United States. Mr. Pate then filed a new petition under the Hague Convention on the Civil Aspects of International Child Abduction through the Brazilian Central Authority seeking access rather than return of his daughter, Nicole. With the assistance of the AGU, Mr. Pate successfully negotiated visitation with his daughter. In November 2011, Nicole visited the United States for the first time in more than 5 years.

Francois Larivee: Just prior to the date his case was scheduled to be presented to the Brazilian Supreme Court, Mr. Larivee and his ex-wife were provided an opportunity to attend a “conciliation hearing” to determine if they could reach a mediated agreement. During the conciliation hearing, the child’s mother agreed to return to Canada in return for Mr. Larivee’s ceding custody of the child to her and provisions for extensive financial support. In March 2011, mother and child returned to Canada and Mr. Larivee, through regular visitation, has been permitted to participate in the rearing of his child.

Klaus Zensen: In October 2010, Mr. Zensen reached an agreement with his child’s mother. Although habitual residence would remain in Brazil, his daughter would be permitted to visit him in the United States. However, the child’s mother has yet to obtain a Brazilian passport for the child and the United States has refused to issue to Mr. Zensen a passport for the child without the physical presence of both mother and child. In addition, the State Department’s Office of Children’s Issues has indicated that they are unable to assist Mr. Zensen in obtaining a new passport for his abducted daughter. While Mr. Zensen continues to search for a solution to this matter, he and his daughter participate in regular Skype visitations.

Alessandra Oliveira: In May 2011, Ms. Oliveira’s first daughter was returned to the United States. Her second daughter followed in August 2011. Prior to this, the Brazilian courts had removed the children from their father and placed them in the care of Ms. Oliveira’s brother. Despite this, she still needed to fight in court for another two years for their eventual return.

Read more at Bring Sean Home Foundation

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MORE SUPPORT FOR PARENTS LEFT BEHIND BY INTERNATIONAL CHILD ABDUCTION


Source: Japan Children`s rights network

Australian parents dealing with the abduction of their child from Australia can access free legal assistance via a new national service which opened today.

Attorney-General Nicola Roxon said that the service will provide practical support to parents in distressing circumstances.

“We want to make it as straightforward as possible for parents to get the assistance they need when dealing with the abduction of their children from Australia,” Ms Roxon said.

“The Hague Convention on international child abduction, to which Australia is a signatory, provides a strong mechanism for lawfully seeking the return of abducted children to Australia.

“However, accessing information about the Convention and knowing how to apply to meet its requirements can be daunting for many parents during one of the most stressful and difficult times of their lives.”

The new legal assistance service will complement the counselling and mediation service already provided by International Social Services (ISS) Australia and funded by the Attorney-General’s Department.

The Government’s new funding agreement with ISS will provide a national service to help parents prepare and lodge applications from Australia for the return of, or access to, children under the Convention, and will also address key recommendations from the Senate Legal and Constitutional Affairs References Committee report into international child abduction to and from Australia, tabled on 31 October 2011.

“This service will now provide a one stop shop offering legal and counselling assistance for Australian families affected by the abduction of their child from Australia,” Ms Roxon said.

“With the assistance of International Social Services, Australian parents will be able to apply directly to the Attorney-General’s Department, as the Australian Central Authority – and the national contact – for the Hague Convention.”

ISS can be contacted Toll free on 1300 657 843 or through their websitewww.iss.org.au .

Further information about the Hague Convention is available on the Attorney-General’s Department website www.ag.gov.au/childabduction .

The Australian Central Authority can be contacted on 1800 100 480 or via email CentralAuthority@ag.gov.au .

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Parental Kidnapping: Be On The Lookout For These Red Flags


Source: Schneider & Stone

Parental kidnapping accounts for the vast majority of missing children cases in this country, and often there are both warning signs and some preventative tips parents may wish to take.

Of course, sometimes it happens without warning and by parents that others would not have thought capable of such a crime. Divorcing parents should be on the lookout for the following red flags for parental kidnapping:

  • Threats of kidnapping (they must be taken seriously)
  • Mixed religion, mixed cultural marriages
  • Parent has ties, connections or family out-of-state or abroad
  • Parent lacks ties in the current place of residency, is unemployed, self-employed, and/or does not own real estate
  • Parents are in the midst of a contested custody battle (orders of protection may be issued)
  • History of domestic abuse, violence or mental illness

Upon filing a divorce petition, Illinois institutes an automatic stay that prevents either parent from taking the child across state lines without prior approval. However, if you believe your spouse may take your child, there are a few steps to try to prevent such an action:

  • Tell your attorney. He or she can give you advice and bring up the matter before the judge, who should take the allegations seriously.
  • If you have court-ordered child custody and visitation, follow the order exactly. Most parental kidnappings occur out of a parent’s extreme frustration and desperation from not seeing a child.
  • Keep the child’s passport if you can, or if the other parent has it, the court can demand it be held at one of the attorney’s offices while the divorce is pending to prevent the child from leaving the country.
  • Keep a copy of a custody or visitation order with you in the event you need police assistance when exchanging the child in a volatile situation.

Windy City Law Group– Skokie divorce attorneys

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