Preventing abduction is in a child’s best interests.
—Prefatory Note, Uniform Child Abduction Prevention Act
The Uniform Child Abduction Prevention Act (UCAPA) provides judges with the tools necessary to prevent a parental or family abduction of a child. Because nearly half of reported parental abductions occur during court-ordered visitation, the trial judge is in the best position to protect against a potential abduction. By offering the red flags found to be present in most abduction cases, UCAPA helps judges identify abduction planning activities that warrant imposition of prevention measures.
High-conflict custody cases, often involving relocation, domestic violence, or dual nationality parents, have led to increases in the number of child abductions in the last 50 years. In 1999, estimates were that 78 percent of child abductions were by a parent or family member. A later study by the National Center for Missing and Exploited Children reported that 71 percent of child abductions were by a parent or family member. Traditional remedies of contempt of a custody order, tortious interference with custody, and criminal kidnapping do not ensure return of the child if a parent has disappeared. UCAPA can be used to prevent the abduction in the first place. If a child has been wrongfully retained or taken from their habitual residence, the Hague Convention on the Civil Aspects of International Child Abduction is the proper way to seek a child’s return.
UCAPA’s sole purpose is to prevent the wrongful removal and retention of a child, whether it occurs pre- or post-decree, and whether it is domestic or international. The taking must be wrongful and the person seeking imposition of an abduction prevention remedy must prove a credible risk of abduction. UCAPA is not meant to prevent a parent’s legitimate relocation request nor to prevent a victim of intimate partner violence from escaping abuse.
Parent or family abductions are preventable through identification of risk factors and imposition of appropriate preventive measures. In pre-decree situations, both parents have equal custody rights by operation of law, and either parent may seek prevention measures before custody has been adjudicated when there is a credible risk of abduction. In most cases, the UCAPA petitioner will be a parent who fears the other parent intends to wrongfully remove or retain the child. Additionally, a court sua sponte may order abduction prevention measures if the court finds that the evidence establishes a credible risk of abduction of the child. If there is no credible risk of abduction, the judge does not need to order any prevention measure. So, where a Michigan mother wanted to take her child to Poland for a funeral, the court found no credible risk of abduction and ordered the release of the child’s passport. Kostreva v. Kostreva, 976 N.W.2d 889 (Mich. Ct. App. 2021).
In pre-decree cases or when an initial child custody proceeding is pending, the petitioner may seek a custody order with appropriate prevention provisions from the court with jurisdiction to make a child custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), usually the home state. UCAPA complements UCCJEA by using the same jurisdictional requirements and adding the “threat of abduction” as another basis for temporary emergency jurisdiction.
When the need for prevention measures did not exist or was not anticipated at the time of the initial custody determination, a petitioner could seek to have the existing order modified to incorporate prevention measures to reduce the risk of an abduction. The UCAPA petition would be filed in a court having exclusive continuing jurisdiction to modify. If all parties have left the decree state or the state has declined to exercise jurisdiction, the child’s new home state may issue the order. The custodial parent may seek prevention measures when there is a credible risk that the noncustodial parent will take the child out of the state or country in violation of the order; a noncustodial parent may seek prevention measures when there is a credible risk that the custodial parent will refuse to send the child for the summer visit prescribed in the order.
Additionally, UCAPA allows a court to exercise emergency jurisdiction to enter a temporary abduction prevention order if the child is present in the state and it is necessary to protect the child because of a credible risk of abduction. This could be the case where one parent has not returned the child and is at the airport preparing for an international flight. Emergency jurisdiction is only temporary. The petitioner may have to file with the court having proper UCCJEA jurisdiction for prevention measures after courts communicate with each other. Note, however, a court does not need emergency jurisdiction to issue abduction prevention orders when it has either initial or modification jurisdiction.
UCAPA Section 6 requires a petitioner to file a verified petition and to provide certain information. UCAPA incorporates by reference UCCJEA pleading requirements and confidentiality protections. The petition must contain the parties’ relevant legal histories, such as existing custody determinations, previous prevention or domestic violence proceedings, criminal arrests for domestic violence, stalking, or child abuse or neglect. The petition should contain detailed supporting evidence that shows a credible threat of abduction under Section 7. Mere allegations or one party’s beliefs are insufficient. The request for relief should request specific prevention measures, which are found in Sections 8 and 9. Notice and opportunity to be heard must be given according to state law.
UCAPA Section 7 sets out the risk factors pointing to a possible abduction. These factors are based upon the body of research collected over the years about abductors and abductions. A petitioner must allege the risk factors with supporting evidence concerning the respondent’s conduct. The listed risk factors address potential intrastate, interstate, and international abductions. While no one factor may control, the judge must examine the combination of factors and circumstances. The three key risk factors are a history of abduction, attempted abductions, and threats to abduct. Research has shown that people who threaten to abduct often do. Other factors are less direct, such as abduction planning activities, which may include selling most of one’s property and moving it and money accounts to another state or country. The court can consider the number and strength of the respondent’s ties to the current state and to other states or countries. Intrafamily violence and conduct that violates a prior court order are also factors.
When a risk of international abduction is alleged, evidence may be presented regarding potential legal and practical obstacles to securing the child’s return from the destination country, and the potential in that country for harm to the child. Other factors focus on citizenship and immigration status that could affect a party’s opportunity for contact with the child and certain fraudulent or criminal behavior. The list of risk factors is not exhaustive, so the petitioner may offer evidence of conduct not expressly mentioned.
A credible risk of abduction is more than just the parent wanting to take the child to a country that is not a signatory to the Hague Abduction Convention. For example, in a Colorado case, the father and children had Jordanian and U.S. passports and had often traveled to visit relatives in the United Arab Emirates. When the parties divorced, the mother sought and the trial court ordered surrender of the minor children’s passports and posting of a $50,000 bond with the mother as beneficiary before any overseas travel. The appellate court reversed, finding no showing of a credible risk of abduction under UCAPA. In re Marriage of Badawiyeh, 528 P.3d 194 (Colo. Ct. App. 2023).
Section 8 provides a variety of measures the judge may order to prevent a potential abduction. If the judge finds there is a credible risk of abduction, the judge is required to issue some type of abduction prevention order. Every abduction prevention order must include mandatory provisions found in UCAPA Section 8(a)(1)–(5):
Lawyers should include these five clauses in all custody orders because they can help prevent abductions and, as important, facilitate enforcement of custody determinations. Note, even if the court finds no reason to impose other prevention orders, the court can order these five provisions.
In addition to the mandatory provisions, the court may order other measures and conditions that are reasonably calculated to prevent abduction. Sections 8(c)–(e) list some possible measures. Optimally, courts will issue abduction prevention orders that will prevent an abduction without unduly burdening parental rights. In some instances, however, restrictive measures may be warranted. Examples include where the risk of abduction is very high based on prior custody violations, when there have been overt threats, when obstacles to locating and recovering an abducted child would be particularly great (because the country is not a party to the Hague Abduction Convention or the country is at war), or when the child faces substantial potential harm, such as physical or mental abuse from an abducting parent.
The prevention provisions, measures, and conditions set forth in UCAPA Section 8 are neither exhaustive nor exclusive. A petitioner may request and a court may order other preventive measures. To determine what is reasonably calculated to prevent abduction, the court must consider the petitioner’s evidence as to the potential harm to the child and obstacles to securing the child’s return if an abduction were to occur, as well as the respondent’s evidence in explanation and/or justification for the alleged conduct.
Travel restrictions are a common abduction prevention measure. While each parent has the constitutional right to travel, the parent does not have the right to travel with the child. A large body of relocation cases have now concluded that the right of both parents to a relationship with their child and the child’s rights to relationship with both parents can justify a travel restriction. The court may order the party traveling with the child to provide the other party with a travel itinerary, contact information for the child while away, and copies of travel documents, such as airline tickets. The respondent may be prohibited from removing the child from the country and other specified locations without prior consent or applying for new or replacement passports or visas for the child, or may be required to surrender U.S. and foreign passports for the child. The court may order supervised visitation or require the respondent to post a bond or other security. Sometimes a court will want a “mirror” order in the place where the parent is taking the child.
Certain precautions are worth considering in every case, such as requesting entry of the child’s name into the child’s passport issuance alert program. This is an imperfect solution for dual nationality children, because foreign governments may freely issue travel documents to their citizens without regard to U.S. court orders.
The court may expressly provide an expiration date in the abduction prevention order. If there is none, the order remains in effect until the child turns 18 or is emancipated, or a court with child custody jurisdiction changes it.
UCAPA provides a quick remedy if an abduction is in progress. UCAPA Section 9 grants extraordinary relief in the form of a warrant (a pick up order) to take physical custody of child to prevent imminent wrongful removal. The pre-decree pick up order may be the most controversial provision but there are safeguards. First the petitioner must file a petition alleging and providing evidence that the respondent is in the process of abducting. The order can be issued ex parte. For example, a parent learns the other parent is at the airport preparing for an overseas flight with the child without consent. The parent can file for temporary emergency jurisdiction in the state where the airport is located and ask for a pick up order based on the threat of abduction. The procedure requires a due process hearing within a short time period but prevents the imminent departure.
While the UCAPA is not a panacea and cannot eliminate all risk of abduction, its value is in educating parties and judges as to red flags. In the past, however, some parents have tried unsuccessfully to persuade courts to take preemptive action to prevent abductions, only to have their children abducted by the other parent. UCAPA provides a statutory rubric for considering parents’ pleas for prevention orders and responding constructively.
