Posted on January 10, 2010 by Sandra C. Fava

US SUPREME COURT TO HEAR CASE ON INTERNATIONAL CHILD ABDUCTION & THE HAGUE CONVENTION

Nearly everyone I know from the state of New Jersey has heard about the horrific battle Sean Goldman faced trying to have his biological son returned from Brazil where he was being cared for by his step-father after the unexpected death of his mother.  Recently, at the end of December he was finally reunited with his son, seemingly only after the case caught nation and worldwide media attention.  What some people may not know or fail to realize is that there are Sean Goldman's all over this country.  Parents from New Jersey and other states are faced in a similar battle trying to have their children returned to them from foreign nations.

One such case is the matter of Abbott v. Abbott scheduled for oral argument before the United States Supreme Court on January 12, 2010.  The Abbotts were married in England and later had a child in Hawaii.  They moved to Chile where they separated in 2002 and were later divorced.  The Chilean court granted the mother custody and father visitation rights.  In 2004, at the mother's request, the Chilean court issued a ne exeat order prohibiting either parent from removing the child from Chile without mutual consent of the other. 

The mother brought the child to the US without the father's consent.  Father filed suit in Texas asking the court to grant the return of the child to Chile pursuant to the Hague Convention.  The Texas court denied the return of the child to Chile finding that the removal did not breach the father's "rights to custody" under the Hague Convention as was argued.  The father appealed and in September 2009, the Fifth Circuit affirmed, holding that only the custodial parent can invoke the Hague Convention to get the child returned.

Father petitioned to the US Supreme Court who will hear oral argument on Tuesday, January 12, 2010.  Amici curaie briefs have been filed.  The Domestic Violence and Civil Protection Order Clinic at the University of Cincinnati College of Law contends that looking at the best interests of the child requires a finding for Mrs. Abbott.  Another group of organizations working in the field of domestic violence are concerned that the treatment of these ne exeat orders could allow many primary caretakers to use such orders as a tool to maintain control over their former partners.

The State of California urges the Supreme Court to construe ne exeat orders as conferring custody rights to a technically non-custodial parent.  California further argues that when certain legal principles are applied (comity & reciprocity) return of the child is the right answer.

It will be interesting to see how our nation's Supreme Court views this issue.  We will provide an update once the decision is rendered.

 
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Posted on December 11, 2009 by Erin DeGeorge

Another Mother Sent to Prison for Interfering With Custody

This week, another mother was sent to prison for interfering with custody. On January 8, 2009, Patricia Schafer, 38 and her two children, John, 13 and Jessica, 3, were reported missing by Schafer’s husband, Douglas Schafer. Several days later, after a massive search, Patricia Schafer and her two children were found safe in Maryland. They were located by police exiting the Towson Town Center, a mall located in Towson, Maryland. Schafer was charged with interference of custody for failing to inform the children’s father, her husband, of the location of their children. She was also charged with racking up $20,168 on credit cards that belonged to a relative and friend.

Unlike the case of Maria Jose Carrascosa, which was previously blogged on by Apple Sulit-Peralejo, and parental abductions generally, which was previously blogged on by Jennifer Millner,  Patricia Schafer pleaded guilty to the charge of interfering with custody. Schafer was expected to stay out of prison by enrolling in the county’s Drug Court program. She was a candidate for Drug Court because of her addiction to painkillers as well as her bipolar diagnosis. However, Schafer rejected the prospect of Drug Court and was chose to be sentenced to prison. Superior Court Judge John Dangler imposed a four year sentence.

 

Schafer’s husband was disappointed by his wife’s choice of prison over Drug Court. During his victim impact statement, Douglas Schafer indicated that he did not believe his wife was going to get the help she needs in prison and that the kids will need her down the road. He also spoke of how her actions have devastated their family.

 

What is interesting about this case is that the Schafers were not going through a bitter divorce where custody was hotly contested. I say this because most interference with custody cases involve nasty disputes over custody. Clearly, the State of New Jersey takes these types of cases very seriously, regardless of the children’s parents’ relationship.

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Posted on November 13, 2009 by Jennifer Weisberg Millner

More on Parental Abductions

Yesterday, my partner, Apple Sulit-Perelejo wrote about the case of Maria Jose Carrascosa, who  was found guilty of eight counts of interference with custody and one count of contempt of court. Carrascosa had taken her daughter, Victoria, to Spain in 2005 while involved in a custody dispute with her ex-husband. A family court judge in August 2006 then granted sole custody of the girl to Innes and ordered Carrascosa to bring her back to New Jersey within 10 days. She failed to comply though and was arrested in November 2006 for contempt of court. She has remained in jail since then and has since been charged with the more serious, criminal offence of interference of custody. She can receive a sentence of up to ten years.   Yet, as Apple pointed out, the child’s father does not have custody due to a jurisdictional dispute between the United States and Spain, and the child is with neither parent.

This case brings to mind what was truly one of the most upsetting times in my career as a family lawyer.  While I have been involved in several international parental kidnapping cases, approximately ten years ago, I represented a father of a teen age son whose mother absconded with the child to South America, to a country which is not a signatory to the Hague Convention, the international treaty which deals with these types of situations.  The parents had shared parenting time, and during a period during which the mother had the child, they left the country and fled to the jungles of South America. Many, many months later, after Herculean efforts by investigators,  the United States and the consulates of several countries through which the mother had passed, the pair was located and returned to my client. Sadly, while in South America, the child had been mistreated by the mother, sent to the jungles to work and returned with various emotional issues. Fast forward several years later, and luckily, the teenager had completed therapy, was in college and had reunited with his family. His mother was sentenced to a prison term for her actions.

 

While these types of extreme actions are rare, they are real, and children are injured both emotionally, and in some cases physically.  It is always difficult when faced with a situation in which your client believes that a child may be of risk to be kidnapped by the other parent.  Angry parents often say things in the context of custody dispute in order to disparage the other parent. Yet in some cases, the fear is warranted, and appropriate steps must be taken in order to protect the child in question. The National Center for Missing and Exploited Children (www.missingkids.com), has resources for parents. Additionally, there are steps that parents can takew ith the assistance of their counsel in the context of their divorce or custody proceedings in order to prevent a parental abduction, or at least be prepared in the event it happens.

 

The biggest concern, of course, is the effect on the children are the victims of these situations. Parental abductions represent parental alienation at its worst, and the victim is always the child.  

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