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Other Things to Know
- Legal services.
- In the United States if you are of limited means, there is not likely to be any legal aid or other free legal services that will be promptly available to you. And in these cases, speed is often crucial.
- An experienced lawyer might be very helpful, but you do not need a lawyer in order to contact the U.S. Central Authority. The Central Authority might be able to recommend an experienced lawyer who would be willing to assist you for a reduced fee.
- You must file a Request for Return within one year after the kidnapping in order for the right of return provisions of the Hague Abduction Convention to apply.
- If your spouse is found, the lawyer can ask the court to order your spouse to pay for all of your legal fees and costs. But the client still has the primary responsibility for paying these fees and costs to the lawyer. Typically if one spouse is of limited means, the other spouse also will have limited means. So there may be little likelihood of actually collecting an award of fees from the other spouse.
- In the event of an Order of Return pursuant to the Hague Abduction Convention, an award of attorney's fees, absent strong countervailing reasons, is mandated by U.S. federal legislation.
- Make sure that your fee agreement with your lawyer is in writing. If your fee is being guaranteed by someone else, that person also should sign and have a copy of the written agreement.
- If the kidnapping is to another country that has not adopted the Hague Abduction Convention, consider using the principles in the Uniform Child Custody Jurisdiction Act (UCCJA).
- Consider if the court has power to take full or plenary jurisdiction merely because the child is now present in this state. At a later point in time, the court might decide to decline to exercise full jurisdiction.
- If you are seeking return of your child, make sure your local attorney is an expert in matrimonial law. Then your attorney can prepare an affidavit for the foreign court stating that your local court will provide each parent with due process and a fair hearing without any predetermined agenda.
- If the facts of your case would not permit you to get your child returned to his or her habitual residence, then do your best to use available official channels to request assistance to get access to your child and to obtain visitation.
- The lawyer's affidavit should set out the factors that your local court will consider at the time of a hearing on determining who will be the primary or custodial parent.
- Sign the complaint and any other documents as follows: "I have read the above document and the facts are true to the best of my knowledge and belief, except as to those which are upon belief and as to those, I believe them to be true. Signed under the pains and penalties of perjury." In this way these facts will stand in rebuttal to any reply affidavit that might be filed by or on behalf of your spouse.
- Carefully read and make sure that every fact in your affidavit is true. Make sure that you understand every court pleading signed by you or filed on your behalf.
- If you are not near your attorney, then you can fax a copy of the signed complaint or affidavit and send the original by express delivery. This verification helps to fulfill counsel's obligation to try to independently verify facts. (1) This verification also gives more weight to the facts alleged, leading to a greater likelihood that a Writ of Habeas Corpus will be issued.
- Your attorney can represent to the court that the original signed document is on its way by either express delivery or is being hand carried by the client.
- If possible, make plans to go immediately to whatever place your spouse and child are found so you are present when your child is taken into possession by the police or deputy sheriff. This will give the court some assurance that when your child is taken into possession you either will be outside or on your way, thus reducing the concern about the health and welfare of the child.
- In practice, your personal presence, which should not be necessary, probably helps immensely in getting the judge to order your child returned to you and to the child's habitual residence.
- Hand carry all of the photographs, affidavits, and other documents prepared or obtained by you to that point in time. Do not put these valuable documents into a suitcase that might be lost as checked luggage.
- Be certain that the complaint also requests your spouse to deliver your child's passport and other travel documents, including airplane tickets, to the police, deputy sheriff, or court officer.
- If you are going to go to another jurisdiction where you think your spouse is located with your child,
- Tell no one of these travel plans; or if someone is told, that person must be certain not to disclose the plans to anyone.
- If your spouse has been telephoning, it is likely he or she is trying to be certain of your location; and in that event someone else has to be in the house to answer the telephone. Every time your spouse calls, some excuse must be found to keep the impression that you are in the house or in the area.
- In this way the left-behind spouse tries to lull the kidnapping spouse into thinking there is no need to be apprehensive about an impending try to regain physical possession of the child.
- The kidnapping spouse should be informed that no rekidnapping of your child will be undertaken as that will do even more damage to your child.
- If you seek the return of your child, you should be willing to be the primary custodial parent or to participate in a shared parenting plan, if attainable. There is no sense in spending lots of money to effect a return, causing lots of additional emotional turmoil, only to find that a week or two later you have agreed to let your soon-to-be-former spouse return to the other state with your agreement to some kind of minimum visitation for yourself. That kind of "yo- yo" will harm your child.
- You will want to meet or speak at length with your local attorney who could provide some insight into the likelihood of the local court awarding you temporary custody for the purpose of returning with your child to his or her habitual residence or the prospect of your being awarded custody if the case has to be fought there. If you decide that you cannot get custody, maybe you should consider agreeing to let the other side have custody if he or she agrees to live within a few miles of your home.
- If the documents are from or are to be used in another country, you also may need to supply certified translations. The more ribbons and seals that can be affixed to any certified copy of court papers or to translations the better. It makes the documents "look" more official, and psychologically they may be given greater weight by those who read them.
- Your travel plans must anticipate that the judge might decide to hold a full hearing. Indeed, a full hearing may be required under the Uniform Child Custody Jurisdiction Act. Whether or not there is a hearing often depends upon the nature of the allegations.
- The following are some factors a judge might use in deciding who should have custody of the child:
- age of the child and the parties
- physical and emotional health and needs of or danger to the child--past, present, and future
- physical and emotional health of the parties
- school performance, special interests, and activities of the child
- ability of each party to foster the growth and development of the child
- ability of each party to provide continuity and stability of environment
- relationship and attachment of the child to the parties, their parents, siblings, and any other person who may have a significant effect upon the child
- ability of each party to cooperate with those persons to whom the child has such a relationship and attachment and to provide them access to the child
- acts or omissions of each parent that may indicate the nature of the existing parent-child relationship
- any excuse, justification, or reason for acts or omissions of the parents
- expressed preference of the child, provided that the court has found such child to be of sufficient age and understanding to express such a preference
- motivation of the parties seeking custody or visitation
- length of time the child has resided in a party's environment
- employment of each party
- financial or emotional support of the child--past, present, and future
- amount of time spent away from the home by each party, adequacy of child care arrangements, and programs available to assist the parties to promote the best interest of the child
- geographical accessibility of persons to whom the child has a significant relationship and attachment
- any other factor that the court considers of relevance to its determination of custody, to the end that the best interests of the child are determined
- Consider asking that the U.S. passport be revoked if one was issued.
- Consider if extradition of the kidnapping spouse is possible.