question about UCCJEA

[adis_dad]

My wife took our baby to a non-Hague country on a trip and retained him there without my consent. Because of the slim chances of having him returned, I chose not to serve child custody proceedings on her and instead traveled there to convince her to return with the baby. This has not worked out, and more than 6 months have elapsed since the baby has been out of the country and living with her. I now have two choices regarding where to file.

If I return and file for child custody immediately, would the courts reject jurisdiction automatically under the UCCJEA, or is this something that the respondent would have to explicitly bring up? I also have proof of fraud and misconduct by my wife, but I am not sure if that will help as an exception if jurisdiction is generally precluded.

I expect my wife will not return to the US because of the above, but I am not sure if she can be represented by an attorney entirely without physical presence.

I did report the abduction to DOS and NCMEC within six months.

Grateful for any help. 

[forthelost]

If she really took him there on a trip, then the jurisdiction should be where she originally lived. Regardless of the amount of time, there hasn't been a change in habitual residence since she was intending to return.

[adis_dad]

Thanks for the response. Unfortunately, six months have elapsed since the date on her return tickets.

[forthelost]

The period of time isn't the issue - it's the habitual residence. This was presented as a trip, not as a permanent move. Even if it's been six months the habitual residence is where your child used to live. This would only change if there had been an agreed-upon relocation.

[adis_dad]

Ah, thanks very much for clearing that up. There certainly was no agreed upon relocation.

Forgive the newbie question, but is it improper to ask for attorney references here publicly? I will be filing in CA. 

[tweinstein]

The period of time isn't the issue - it's the habitual residence. This was presented as a trip, not as a permanent move. Even if it's been six months the habitual residence is where your child used to live. This would only change if there had been an agreed-upon relocation.

Of course, this wouldn't prevent her from arguing that there was an agreement to move. My wife fraudulently (and successfully) argued this to the Brazilian judge.

[adis_dad]

Thanks.

My concern is primarily if I stand any chance of getting a custody order in the United States given the time elapsed. My wife had return tickets, among other strong documentation of her intent to return even after she left, that would go against such an argument.

The child is also a US citizen, but I am not sure if this is relevant.

Something that I request help with is this: the country my child is in currently is not a Hague signatory. Much as I scour the UCCJEA, I cannot find a "habitual residence", only "home state" jurisdiction which looks at the past 6 months of the child's residence. I don't see fraud or miscount counting as exceptions, too.

I do find the "habitual residence" in the International Child Abduction Prevention Act, but the act seems to apply only to Hague signatories.

I would much appreciate it if anyone could clear this up.

[SageDad]

There is no 6 month time frame in the Hague Abduction Convention (or ICARA which is the USA's implementing legislation of the Hague Convention.)

It sounds like your child was not taken to a Hague Convention country (you never said which country) though and I'm not sure that ForTheLost and Tweinstein's comments are accurate if you're dealing with a non-Hague country.

You really need to discuss this with a CA attorney that practices in your local court but I do believe the UCCJEA is the law that will ultimately apply with foreign countries being viewed as "other" States for purposes of the law.  The UCCJEA does have provisions relating to a hard six month time frame, but they MAY not apply if the time was not tolled properly.  Unfortunately I don't have the background to provide much more insight on this topic and am unsure anyone else here will either as it is normally the Hague Convention, and not the UCCJEA, that applies in these cases.

In Hague Convention cases there is no time limit at all, though there are some clauses that take effect once a year has passed from the "abduction" to the initiation of legal proceedings.  The interpretations for how this year should be calculated vary greatly, but I think none of them apply in your situation due to your child being in a non-Hague Country.

If the country your daughter was taken to has an extradition treaty with the US you may want to pursue getting charges filed under the IPKCA as well.

[forthelost]

Even if it's not a Hague country and they don't extradite for parental kidnapping I'd get a UFAP and/or a IPKA warrant as well as an Interpol red notice and yellow notice. If the abductor tries to enter a country that extradites with those in place, that country will promptly boot them out if they are not a citizen.

[adis_dad]

Thanks for all the helpful answers.

I did discuss this a few CA attorneys, but most don't know specifics of the UCCJEA, much less answers to my questions, and only offered to research it for me. I haven't been able to find anyone who's actually handled an international parental abduction and knows what they're talking about.

I am really trying to find out if there are exceptions to that 6-month timeframe (tolling, as you mentioned). The UCCJEA, to my layman eyes, only seems to have very strict exceptions such as requiring the other state (country) to explicitly decline jurisdiction.

There is an extradition treaty in place, but parental abduction is not a crime in the other country.

Thanks for the note re. the UFAP/IPKA (IPKCA?) and Interpol notices - I will try that also. Do these require prior custody orders in place? If so, I'm back to the UCCJEA conundrum.

[forthelost]

If you weren't divorced, joint custody is presumed. If there was a custody order in place and it was violated, you'll have to call for a modification hearing. A yellow notice requires the child be listed as missing. A red notice is for a warrant currently in place. Once there is a state warrant you can request a UFAP from the FBI. I'm less certain about an IPKA warrant.

[SageDad]

IPKCA doesn't require a custody order as long as you had custodial rights at the time of the wrongful removal/retention.  The trick though will be getting a US Attorney General to exercise their "prosecutorial discretion" to pursue criminal charges against the abductor.

UFAP warrants are usually easier to get, but will require you to get the State of California to issue an arrest warrant (which may require you to get a custody order from a CA court.)

Don't pay any attorney to "investigate" anything.  I'm sure there are family law attorneys in CA with experience dealing with the UCCJEA and international child abduction cases.

[adis_dad]

Thank you.

What is the process to initiate charges using the IPKCA or UFAP? It looks like it is not done via a lawyer from your description. How do I set the ball rolling?

My wife has also forged my signature to transfer money to an account controlled by herself and her father overseas. I have not pressed any charges yet.

I am also told several members of my wife's family who helped her with the abduction and are now living with her and our baby will be applying for visas and traveling to the UK which is a Hague signatory. I am not 100% certain my wife and baby are also traveling. Will the UK Government take cognizance of the facts of my case and/or prevent my baby from traveling/visa issuance?

Per forthelost's comment, the IPKCA or UFAP might help here, but I am not sure if I will have enough time.

Thanks again for all your help.

[forthelost]

You first have to have a missing persons report. If someone tells you that you can't file one since you know where your child is, they are not telling the truth. If they want a formal custody order, you need to call for a modification of custody. If your ex doesn't show up you will win by default.

If she's really engaged in the fraud you described, pursue charges for that. That might even be a better idea, since it can't be dismissed as a custody dispute and not a criminal matter. The UK actually does return kids under the Hague on occasion, so try to see if they travel there. The Yellow Notice/Red Notice would cause her to be arrested once she enters the country, if it's present.

[BringJusticeHome]

Filing for a modification of a custody order is a long process depending on where you are located. Most courts in major cities are backed up and you might not even get a hearing for 3 plus months. Also the mother needs to be served papers of this court date. You will not get a default decision if one party never gets served. Even then if one party does not show up it sometimes can take 2,3,4 court hearings before a judge will finally give you a default decision. Actually based on what you said there is no current court order you guys were married so by law its assumed joint custody. You would have to file for custody, since there is no current order to be modified.  And from my experience you still wont get a decision ASAP . The justice system is set up so both parties can defend themselves so it will take some time before a judge finally gives you a default decision. Not to discourage you but i wouldn't put all of my eggs in that one basket...