Background: In my co-authored column "Family Abduction Prevention Act Fails to Address Causes of Parental Kidnapping," (The Hill, 1/8/07), I criticized the FAPA, which was sponsored by California Senator Diane Feinstein and Texas Senator Kay Bailey Hutchison. We wrote:

“Feinstein and Hutchison portray FAPA as a protection against abducting noncustodial fathers. However, according to the US Department of Justice, mothers and fathers abduct their children in equal numbers…According to the US Department of Justice's Office of Juvenile Justice, children in sole custody settings are at a far greater risk of being abducted by a parent than children in joint physical custody settings. The driving force behind parental abductions is the win-lose child custody system.

“Under this system, when a couple divorces or separates, one and only one parent is awarded true custody of the child, and many noncustodial parents are allowed little or no role in their children’s lives...This sets up a situation where disenfranchised parents may go outside the law to regain their relationships with their children.

“This is not to say that parental abductions are justified or are in children’s best interests—they rarely are. And in some cases parents have lost custody because they are unfit. Yet current divorce policies set up incentives to abduct.”

Judi Cochran has some interesting and thoughtful criticisms of my column. Cochran is a consultant on Interstate and International Parental Abductions, Interstate custody issues, Sex Offender Profiling (primarily false allegations in custody cases), and Parental Alienation. Her letter appears below.

Dear Glenn:

I generally have no argument with your comments or interpretations.  However, I believe that your "assumption" that shared parenting presumption, joint custody awards or any other creative ideas will stop or slow down parental abductions is off the mark.  You state that the non-custodial parent is more likely to abduct and this is not what I have seen in 30 years of working with parental abduction cases.  The abductor is, more often than not, the custodial parent or in pre-decree cases the parent who has possession of the child "in the moment", usually the mother. 

The reasons for the abductions vary, but rarely have anything to do with the custodial status but more to do with revenge and control.  While, when caught, the abductors will usually scream "Abuse!" since it's the only affirmative defense to criminal interference with custody, it is rare to find a shred of evidence to support this allegation.  Slowly States are amending their statutes to include custodial parent abduction, but the sad fact is that many criminal statutes (including Ohio) protect ONLY the custodial parent.  The reason for these changes is the recognition that today it is the custodial parent who more often disappears with the child.

The anger is often seeded when mom doesn't get her way in the custody court, but not because she becomes the non-custodial parent.  Most often, she IS the custodial parent but interferes with the visitation order, attempts to alienate the child from the father, believes if she simply moves away Dad is powerless, doesn't win her DV "case" (more courts are finally saying "Fine, you can have your protection order.  HOWEVER, it will NOT include the child and the custody order will not be interrupted.") and narcissistic behavior that NO custody order can control.  I have dealt with hundreds of these cases, and no matter what the "excuse", the pattern of behavior is almost always the same.  And a shared parenting order often only increases the anger.

What I "hear" in the fathers' rights threads and what I hear from clients is very often "The court won't enforce my order.  The court won't punish her for interfering with my parenting time.  She moved to California with my child and the court didn't do anything.......".  Then, I discover that Dad hasn't even bothered to ASK the court for enforcement, hasn't filed for modification using the pattern of behavior in support, gets legal advice from other parents or attorneys without a whit of expertise in family law, doesn't use the remedies available and simply continues to complain about the evil "system", the evil attorneys, the evil experts (you and I included!) and the cost of enforcement being too much of a burden.  

Often these dads are encouraged to "fill in the forms and go to court pro se."  Why does anyone think they stand a chance in the courtroom when they are basically clueless about the process and what their rights are and how to argue their position?  I have had family court judges in my classes who admit that they "need the education" from the attorney standing before them.  I recently saw a judge visibly stunned to learn that their has never been an involuntary return of a child to the U.S. under the Hague and that the only way to prevent a repeat abduction is to not allow the abductor unsupervised contact with the
child. 

The warning signs are almost always present.  While there is no panacea, the issues need to be addressed up front, the threats have to be taken seriously, the arguments have to be well presented and the measures which can possibly be put in place to prevent abduction need to be dealt with BEFORE the child is on a missing poster.  Shared parenting is the best solution for the child when there can be cooperation between the parents.  When one parent is hostile and bent on control and revenge, there needs to be a strong order in place where the cooperative parent is "in control", is the primary custodial parent and is armed with the knowledge of the remedies available if there are problems and when and how to invoke them.  Usually, this means the dad must be the custodial parent and mom needs to be educated, by the court, on the penalties for violating the
order.  

I am seeing the "sea change" as judges and magistrates, masters, etc., are being educated by well prepared attorneys who walk into the courtroom with solid cases, appropriate expert opinions and a well-thought out parenting plan.  What I am also seeing is that as shared parenting with 50-50 parenting time increases, so does the interference and abduction risk - primarily because the 50-50 was the "easy" way and no one addressed the warning signs evidenced by the interfering, angry parent.  More thought needs to be put into the initial selection of an attorney.  It's easier to address everything initially than to come back to modify after a couple of years of building anger and resentment.  

Shared parenting, too, is a Band-Aid.  But! the box has more than one and carefully combining them on a case by case basis is where we make progress.

This entry was posted on Friday, August 10th, 2007 at 3:53 pm and is filed under Family Law, Domestic Violence/DV System, Fathers' Rights/Noncustodial parents' rights, Shared Parenting, Parental Alienation/PAS, False Accusations, Divorce/Separation/Child Custody, Move-Away/Relocation Cases, Parental Kidnapping. You can trackback from your own site.