What Children At Risk for Abduction Deserve From Their Communities
What can be done to help parents at risk for abducting their children make better choices? What can the courts, public agencies, and private and nonprofit organizations do to help families resolve their disputes amicably while addressing their legitimate concerns about protecting their children to reduce the risk of abduction and the possibility of the children being harmed?
Increased Parental Access to Legal Information and Representation
Problem 1: Parents generally lack knowledge of or access to legal information. Most parents are not familiar with custody and visitation laws. Many of them do not know that moving to a new location without going to court to obtain a custody order or to modify an existing order can be a crime when it violates the rights of the other parent. Unwed parents often do not know they should have a custody order. Grandparents, stepparents, and others who support parents in abducting their children generally do not know that they may be committing a felony by aiding and abetting the abductor.
Recommendation: Develop public education programs that discuss relevant laws for parents. Communities or organizations should develop public education campaigns, including public service announcements, to educate the public about custody and visitation laws and the crime of parental abduction. These campaigns should provide informationvia radio, television, the Internet, and printed materialsthat will increase public awareness. For example, programs or organizations that target at-risk populations can provide informational brochures to parents in these programs. Examples of such programs or organizations include public welfare offices, child support enforcement offices, programs for unwed parents, organizations serving immigrant and ethnic communities, mental health agencies, the courts, and missing children’s organizations and clearinghouses.
Problem 2: Parents and children are unable to obtain affordable legal representation. Educating parents about the need for custody orders and ways to prevent abductions does little good if they are unable to access the legal system. Most low-income parents are unable to find affordable representation in custody and visitation cases. Many middle-class parents in the midst of a divorce cannot afford to hire attorneys for the period of time needed to resolve contested custody cases. Legal services offices often do not represent parents in custody cases, unless the case fits under a separate priority set by the office, such as the prevention of domestic violence.4 Unwed mothers who seek public assistance are required to cooperate with welfare agencies in determining paternity and child support, yet neither the mothers nor the fathers receive help in obtaining a court order that specifies their custody and visitation rights.Recommendation: Develop community-based programs that increase the parents’ access to legal representation. The courts should appoint custody evaluators, guardians ad litem (legal representatives), or attorneys who represent children to provide the parents with information and recommendations. More programs that provide legal representation on a pro bono or sliding scale basis should be developed. Parents who do not have legal representation should still be able to obtain legal information and advice. Barriers that prevent attorneys from offering partial services should be removed to enable parents to get the help they most need from attorneys. Courts should also be more user-friendly by allowing the offices of the clerks of the court to assist the expanding population of pro se parents (i.e., parents who do not retain a lawyer and represent themselves in court).
In addition, jurisdictions should streamline procedures for obtaining custody and visitation orders to make them available to low-income, unwed parents. Programs for parents, starting with the birth of the child, should clarify custody rights and responsibilities. Parents should be able to obtain readily enforceable custody orders and acquire legal assistance to obtain child custody and visitation orders when courts determine paternity and child support.
Problem 3: Enforcing custody orders is time-consuming and costly. When a child is abducted after a custody order is obtained, the left-behind parent often questions the usefulness of the custody order. The left-behind parent faces the prospect of hiring two attorneys (one attorney in each State if the abducting parent traveled to another State), filing enforcement proceedings with the court, and waiting for a court date. Meanwhile, the abducting parent may flee again with the child. Many left-behind parents know where their child is, but they are unable to recover him or her.
Recommendation: Pass State laws that mandate district attorneys to enforce custody orders. California is the only State that currently has an expedited enforcement measure for child custody orders. The measure mandates that the district attorney take whatever civil and criminal remedies are necessary to locate and recover children abducted by family members and to enforce child custody orders. In July 1997, the National Council of Commissioners of Uniform State Laws approved the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), which contains a similar provision. As of February 2001, 21 States and the District of Columbia had enacted the UCCJEA, and it had been introduced in the legislatures of 10 other States.5
Development of Prompt and Effective Responses to Allegations and Acts of Family Violence
Problem 1: Parents feel that child protective services and the courts do not treat child abuse and neglect allegations seriously or address them promptly. Whether or not they lead to abductions, allegations of child abuse and neglect fuel many custody battles. When child protective services and the courts do not treat these concerns seriously or address them promptly, they exacerbate an already contentious environment. Some forms of abuse, such as emotional abuse or allowing a child to witness domestic violence, do not meet child protective services’ criteria of direct harm to the child. Nonetheless, the child is at considerable risk of continued abuse or the psychological damage caused by unfounded allegations.
Recommendation: Conduct thorough and prompt child abuse and neglect investigations. Child protective services and the courts need sufficient funding to hire and train staff to conduct thorough and prompt child abuse and neglect investigations. If these concerns are addressed quickly, it is less likely that the child will be harmed and that the parents will continue to make allegations against each other. It is critical that professionals coordinate their efforts to arrive at a sound conclusion.
Problem 2: Many victims of domestic violence find that separation and divorce do not provide them with the safety they sought by leaving the abuser.6 Abusive husbands are more likely to seriously harm or kill their wives during marital separation (Wilson and Daley, 1993; Feld and Straus, 1990). Even after divorce, custody and visitation orders that do not address safety for the survivor of domestic violence and her children provide the abuser with continued opportunities to harm them.
Recommendation: Provide community-based responses that protect victims and make abusers accountable for their actions. Domestic violence survivors who have left their abuser should be able to live in safety with their children without having to leave their communities. Judges, lawyers, mediators, and custody evaluators need to know how to identify domestic violence and understand its impact on the victim and her children. Courts must consider custody and visitation orders that protect the victim and the children from physical and psychological abuse. Communities should establish supervised visitation centers so that, when necessary, parents can safely drop off and pick up their children and visitations can be properly supervised.
Services for High-Risk and High-Conflict Families Disputing Custody
Problem 1: The traditional processes for determining custody are not sufficient or appropriate for many high-conflict familiesespecially those who are also at risk for abduction. Custody mediation as usually practiced is not effective with highly contentious families. They often return to court to relitigate custody and visitation issuesnot to resolve parental conflicts. Adjudication can result in a well-crafted order, but high-conflict parents often do not carry out the terms of the order (e.g., accessing services ordered to help them with various problems). Consequently, the children continue to be exposed to harmful and conflictual situations.
Recommendation: Offer high-risk and high-conflict families innovative approaches that address custody conflicts. Courts, family attorneys, and mental health professionals working collaboratively can modify existing approaches and develop new procedures and services to better suit these families (Johnston, 2000). For example, parent education programsa popular innovation in many jurisdictionsneed to be adapted to meet the needs of multicultural families from different economic strata and highly conflictual and violent families. Most parent education programs target the middle-class divorcing population, but they do not address the situations that unwed, low-income parents face. This population cannot afford the services of mental health professionals or attorneys; therefore, parent education may be the only context in which they will learn about the impact of their conflict on the children and about the laws pertaining to custody and visitation. If seminars portray lifestyles and circumstances that are not reflective of their own, parents can be further alienated as a result of the experience. Similarly, custody mediation and custody evaluations should demonstrate cultural sensitivity, particularly in mixed-culture marriages where there may be a risk of international child abduction.
Innovative adaptations of custody mediation have been developed for use with high-conflict and high-risk families. Impasse-directed therapeutic mediation or a briefer diagnostic and referral intervention for groups or for individual families, as utilized in the Intervention Study, is an effective means of reducing conflicts and the possibility of abduction, particularly when paired with legal constraints (e.g., restraining orders) and needed services (e.g., legal advice or substance abuse treatment). Counselors who have conducted impasse-directed mediation with groups have found that this intervention has reduced conflict and relitigation and is less costly than the individual family model (Johnston and Campbell, 1988; Johnston and Roseby, 1997).
Many high-risk and high-conflict families need ongoing oversight and monitoring. For the children’s sake, there needs to be a means of checking whether parents are honoring the terms of the custody and visitation orders. Are parents going to court-ordered counseling or drug treatment? Have parents attended to the child’s special medical needs? Have court-ordered parental visitations been carried out without incident? Have there been further allegations of abuse? Has supervised visitation been properly supervised? Have the parents attempted to snatch or actually snatched the child? Does the order need to change to reflect the parent’s new work hours or the child’s summer schedule? Programs that monitor visitation arrangements are one type of innovative approach.
Some jurisdictions use a coparenting arbitrator or coordinator, as stipulated by an agreement between the parents or by court order, to decide on various issues relating to the children. In one model, the coparenting arbitrator is involved only when parents are unable to agree, usually despite the involvement of other professionals. In another model, the coparenting arbitrator acts as the parenting counselor, mediator, or child therapist on an ongoing basis and exercises his or her right to arbitrate only when parents fail to agree on a specific matter. In both models, the arbitrator seeks to develop trust with family members and a depth of understanding of the family dynamics.
In other jurisdictions, a family court judge is responsible for managing the high-conflict custody cases. The judge can order periodic review of the case and can monitor adherence to the custody and visitation orders. Although the discretion to undertake greater case management responsibilities has always been available to the courts, few have taken advantage of this power on a systematic basis with high-conflict families.
Protection of Children’s Interests and Needs
Problem 1: Under current Federal and State law, abduction is not a crime against the child. Under current law, the parent whose custody or visitation rights have been interfered with by the abduction of his or her child is the victim of family abduction. The law casts abducted children as possessions that parents have rights in, not as victims of a crime.
Recommendation: Modify laws so that family abductions are crimes against the child. In lieu of, or in addition to, criminal custodial interference laws that recognize the rights of the left-behind parent, laws should recognize that family abduction is a type of abuse against the child. Child victims of abduction should be eligible for services under the Victims of Crime Act, 42 U.S.C. § 10601.7
Problem 2: Children can be harmed by recoveries, postabduction placements, and custody orders that abruptly disrupt their relationship with their primary parent. Although society increasingly recognizes that the child is harmed when his or her relationship with a caring left-behind parent is disrupted, society may not fully understand the problems that arise when the bond between the child and his or her abducting parent is disrupted. The child should not inadvertently be punished for the parent’s actions, particularly if the child’s primary bond is with that parent. In some instances, the child is more traumatized by these disruptions than by the actual abduction. In cases of long-term abduction, the child may be returned to a parent who is virtually a stranger and be cut off from the only known parent.
Recommendation: Involve social services at each phase of decisionmaking that affects the child and minimize the disruption to the child’s relationship with a primary parent. Law enforcement officers and social services should coordinate their efforts when the officers plan to recover the child or arrest the abductor. These two groups should know enough about the case to assess whether the child would experience harm if unaccompanied by the abducting parent during the recovery and return or to determine whether the abducting parent presents a potential physical or flight risk to the child. A mental health or social services professional should also be present when the child is reunited with the left-behind parent or soon after. This professional can help facilitate the child’s transition and ease the feelings of anger, guilt, and fear that often accompany it.
If the left-behind parent obtained an ex parte (without notice to the other party) custody order after the abduction, then there was no full hearing on the best interests of the child. In these cases, a hearing should be scheduled promptly after the child is recovered to determine custody and visitation, as ex parte orders are meant to be temporary. As appropriate, judges should consider alternatives to abrupt shifts in the child’s caretaking arrangements, so that the child can gradually enter into new arrangements, building the parent-child relationship over time.
Creation of Unified Family Courts
Problem 1: Currently, judges often lack access to information about other legal proceedings affecting the child or the parents. Spousal abuse and child abuse and neglect are factors in many abducting families or those at risk for abducting, yet there is little or no coordination among the courts that handle child custody, child abuse and neglect, spousal abuse, substance abuse, and criminal custodial interference cases. Lack of information from the juvenile, other civil, or criminal courts can lead to inappropriate and unsafe custody arrangements that may increase risks for children, including abduction risk.
Recommendation: Establish unified family courts that have an integrated approach to cases involving the same family. Unified family courts allow for systematic case management, integration of evaluation and treatment services, and coordinated decisionmaking in cases involving the same family. This system produces better decisions, reduces the confusion of parties, and uses resources more efficiently than current systems. Both the American Bar Association and the National Council of Juvenile and Family Court Judges have long been committed to the unified children and family courts concept. A unified family court would reduce many of the problems already described.
4 Custody cases are ineligible to receive free legal aid because it is too costly. This type of aid is available only if a parent can prove that his or her case includes domestic violence.
5 The States that have enacted the UCCJEA are as follows: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Idaho, Iowa, Kansas, Maine, Minnesota, Montana, North Carolina, North Dakota, Oklahoma, Oregon, Tennessee, Texas, Utah, and West Virginia and the District of Columbia. The UCCJEA has been introduced in the legislatures of Delaware, Florida, Illinois, Maryland, Missouri, New Jersey, New York, Rhode Island, Virginia, and Washington.
6 Although men can be victims of domestic violence, the majority of these victims are women.
7 In 1990, the Crime Control Act, Pub. L. No. 101–647, tit. V, §§ 502–503, 104 Stat. 4820 (codified at 42 U.S.C. §§ 10606–10607 (1990)), established a new framework for victims’ rights by creating the first Federal bill of rights for victims of crime. This legislation, referred to as the Victims’ Rights Act (or the Victims’ Rights and Restitution Act of 1990), requires Federal law enforcement officers, prosecutors, and corrections officers to use their “best efforts” to ensure that victims receive basic rights and services. In 1994, the Violent Crime Control and Law Enforcement Act, Pub. L. No. 103–322, tit. IV, §§ 40113, 40221, 40503, tit. XXV, § 25002(a), tit. XXIII, § 230101(g), 108 Stat. 1904–2078 (codified at 42 U.S.C. § 10607(c)7, 14011(g); 18 U.S.C. §§ 2263–2264, 2248, 2259; and at Fed. R. Crim. P. 32 (1994)), created additional new rights for victims of sexual assault, domestic violence, and child abuse.