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Author Topic: Need Help.....Court granted my wife permission to take son (5) to Brazil.  (Read 10548 times)

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Offline tweinstein

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Re: Need Help.....Court granted my wife permission to take son (5) to Brazil.
« Reply #15 on: September 28, 2013, 01:37:21 PM »
Tim, this is not 100% true!!!! There is a program in place to prevent this from happening, I can't speak of the effectiveness of it, but I am very much familiar with the process and what needs to be done..
Please explain the details of the program. Even if it is only 10% effective, its something people should know about.

Offline dmdaven2

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Re: Need Help.....Court granted my wife permission to take son (5) to Brazil.
« Reply #16 on: September 30, 2013, 11:24:04 AM »
Only way to prevent the travel is to literally have the child's passport taken...otherwise, a court order is useless...trust me
Devon Davenport - Father of Nadia Lynn ;)

Offline SageDad

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Re: Need Help.....Court granted my wife permission to take son (5) to Brazil.
« Reply #17 on: September 30, 2013, 11:44:27 AM »
Only way to prevent the travel is to literally have the child's passport taken...otherwise, a court order is useless...trust me


Yep... I can't confirm that it is still totally true today, but you definitely used to be able to take children into Mexico by crossing the southern land border by car or on foot at a border checkpoint without even having a passport for the child (much less permission from the other parent.) 


Which is to say, even having the child's passport may not prevent the child leaving the country (assuming that the target country doesn't just issue a passport for the child themselves thereby obviating the need for a US passport altogether.)
“What you seek is seeking you.”
― Rumi

Offline sue

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Re: Need Help.....Court granted my wife permission to take son (5) to Brazil.
« Reply #18 on: September 30, 2013, 12:50:51 PM »
In 2007 or 2008 we drove across from San Diego with our child in the back seat and then back into San Diego on the way home.  Nobody asked us for anything.

Offline BringJusticeHome

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Re: Need Help.....Court granted my wife permission to take son (5) to Brazil.
« Reply #19 on: September 30, 2013, 10:04:00 PM »
There is another way other then taking the passports, if you want to know more email me and I will explain!!!

Offline Scottsfx

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Re: Need Help.....Court granted my wife permission to take son (5) to Brazil.
« Reply #20 on: November 02, 2013, 05:40:56 PM »
Ok....time for an update.

As mentioned before I found 3 different appellate, published, rulings concerning here's a short summary of what they entailed.

They are all move-away orders to a foreign country.  The three countries are Autralia, spain, and Isreal.    All three countries are members of the Hague Treaty.  All are in compliance according the 2013 Report on Compliance the U.S. Department of State sends to congress.

The arguement goes basically like this.


 A child who is a U.S. Citizen is heir to the rights and freedoms of this Country.
 
One of the Court's primary duties is to preserve said rights. 


When a Court claims jurisdiction it has taken on the responsibility of preserving and maintaining the child's rights as a citizen.

Taking a child beyond the borders of this country takes the child beyond the Courts jurisdiction and thus the Court's orders cannot be enforced.

An order that is unenforceable is made moot and therefor not a valid order at all.

The Court must set up some sort of sanction or other protective measure to guarantee the enforceablity of it's orders other wise it has effectively abdicated it's jurisdiction and failed to protect the citizen under it's care.


In the above cases this was dealt with by having the Court require a "substantial bond" and having the taking party get the orders recognized by the courts in the country of destination.  In  some cases forfeiture of child support was also added.


My case is somewhat different.  It's not a move-away but a short trip.  Never the less I'm arguing the all the above still applies.  Indeed it applies the moment the plane leaves the runway.

So I filed a responsive declaration which covered the usual.....my wife meets 5 of 9 of the red flags of abduction........2 of the profiles.......the difficulty in effecting a return from Brazil.....and the harm done to child in an abduction.   Plus my evidence of course.

I also filed a 9 page memorandum of Points and Authorities citing and arguing the above cases and that they are binding on this court via the doctrine of stare descisis. 

We went to Court Oct. 31, 2013.   Once we arrived we were notified that the court was holding our case to the afternoon so that he could read the cases that I had cited.   That afternoon the court summarized the case for the recorded specifically noting the filing of a memorandum of points and authorities. He then continued the case to be heard a week later on Nov. 8th so that he would have time to download and print out the cases to thoroughly review them and to give himself time to research if there were any other cases that might be relevant.

Over all I think this is a good sign.   I believe the judge to be a good guy with a kind heart and he wants Riley to have contact with both sides of his family.  I just think he's a little uninformed on the risks and believes I'm being unreasonable.    At least now it seems he's looking at it closer and perhaps about to experience a chance in his paradigm.

There is a reason that I'm going to all the trouble of recording this for you guys.

I am about 99% sure that this will end up going to appeal which I'll elaborate on in a minute.   I think that there's enough that's different between my case and the previous cases that the Court of appeal may very well publish it's decision which would of course set precedence in CA but would also likely be followed, at least argued, in cases nation wide. 

The key differences are that this is a short term leisure trip as opposed to a long term move away which normally have a much more thorough process of determination. 
So the question is......Does the same standard of guaranteed enforceability apply to short term leisure trips?  That would set a precedence.

Would the bar set by the previous cases be sufficient when concerning a Country in non compliance (like Brazil) or even a country that's non hague (think japan)?   Is there any bar that can set that would guarantee enforceability in such a situation?  Seems these answers would set precedence.




It should also be noted that the Appellate courts took the above cases very seriously.  In one a writ of superseades was granted. (only granted about 5% of the time petitioned)  further more than once the moving party failed to properly preserve the arguements according to the Court rules.  Nevertheless the Appellate court did what it rarely does and still issued a decision and published it to boot.

As stated before I represent myself and appeals have to be done correctly or you forfeit the appeal or at least parts of your arguments.  If anyone knows and attorney in Ca that would be willing to spent a short amount of time counseling me on how to protect my case I would appreciate it if you contacted me.  I do all the heavy lifting, writing etc.  I would just like to find someone who would help me watch for pitfalls.




Offline PAmom

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Re: Need Help.....Court granted my wife permission to take son (5) to Brazil.
« Reply #21 on: December 03, 2013, 02:17:46 PM »
Hello Scott,
I'm in Pennsylvania and am having a similar situation to you.  My children have so far not left the US and I am working on preventing that.  I so far, have not been able to convince the court that the kids going to India is a high risk situation.  The fight is not over however.  I am also learning a lot about the UCAPA bill which so far is being bounced from House to Senate etc for years. 
Has UCAPA passed in California?  I know there is another law there to prevent international abduction- Sinclair Cannon.  Has this been of any help to you or have the courts ignored you?
I went to court with a stack of "evidence" for all of the red flags, including no job, no assets, strong family ties and money in foreign country etc and was ignored.  I remain shocked that OUR courts are willing to send our Citizen children to a country that does participate with the Hague. 
I hope that you do not give up trying to prevent your child from going again.  We can never be sure they will return. 
 

Offline Scottsfx

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Re: Need Help.....Court granted my wife permission to take son (5) to Brazil.
« Reply #22 on: December 14, 2013, 06:56:26 PM »
Hello PAmom,

California works under the UCCJEA which I think most states are adopting.  I was familiar with the term Sinclair Cannon but having looked it up I am very familiar with the code it produced and was part of my argument.  Actually it was the main body of my argument a year ago when my ex petitioned for a Christmas trip.   It fails and here's why. 


[/size] (b) (1) In cases in which the court becomes aware of facts which
[/size]may indicate that there is a risk of abduction of a child, the court shall, either on its own motion or at the request of a party, determine whether measures are needed to prevent the abduction of the child by one parent.  To make that determination, the court shall consider the risk of abduction of the child, obstacles to location, recovery, and return if the child is abducted, and potential harm to the child if he or she is abducted.  To determine whether there is a risk of abduction, the court shall consider the following factors:
[/size]At this point it goes on to list what you and I know as the "red flags" of abduction.  But if you read carefully all it says is that the Court must consider the factors.  In my case the Court "considered" the numerous factors along with the fact that she had been granted permission to travel before and had come back.  So after considering all the evidence the Court found that there was no evidence that she was a flight risk and granted the travel with so much as even a bond.  That is why this time along with all the other arguments I argued  that the Court had to make travel orders that were "enforceable" and that it would require a bond and having the orders recognized in the foreign country  in order to be said to be enforceable per the case law which I cited.  It should be noted in the Courts orders this time the Court required my wife to leave her Brazilian passport behind and only travel on the U.S. passport.   When we came back a week later to sign the orders she had a letter from the Brazilian consulate saying that was against Brazilian law and that they would not even allow her apply for a visa as it was criminal.  So the Court struck that item from the orders.  I of course cried foul and argued that this was exactly the point of my argument.  Here we were at the first test of his orders and already the Brazil has told the Court stuff it you don't have jurisdiction over us.  The Court said that it had already made it's orders and that I was going back to argument.  I had anticipated all this and actually already had it addressed in my writ of mandate which I filled with in an hour of the order being signed.  (By the time we were signing the orders it was just 3 days before the trip was to begin.)  My wife was told that if I appealed and they issued a stay she had to return the passports immediately.  I did file and that afternoon the appellate court issued a temporary stay and gave her till 2 the next day to respond to my writ.  During this time her phone suddenly went off line and no one was able to reach her and she did not contact the court to respond.  The next afternoon after 2pm the appellate court denied my writ and removed the stay.  She went with my son and luckily she returned.  The Court of appeals can summarily deny a writ with out explaining why so I may never know.  I have often wondered why our courts seem so willing to send our children off to foreign countries with the risk so high.  You mentioned UCAPA so I looked it up and may have found the clue that could somewhat answer my question. 
[/size]Selected Comments from the Louisiana Committee hearings[edit]Excerpt from comments by Representative Bowler[edit]Rep. Bowler"My reluctance with the bill, and it is with all due respect to this group of people, who got together and decided this was a good idea is that it does something, it departs from what I think is a real important concept in America and that is you are innocent until proven guilty, and this actually causes you to be penalized by a court for something they think you might do.
I think that is a real departure in thinking in America to do that.
I would hope that we would send this back to that group of Uniform lawmakers that come up with these models, say let's rethink this and I would hope that we don't pass it.
It's not that I don't think the problem is serious enough ... In Louisiana we have in our statutes, which I think operates as a huge deterrent, is under our simple kidnapping law, we say that, "the intentional taking, enticing, or decoying and removing from the state by any parent his or her child from whom custody has been ... blah, blah blah ... it creates within ... this bill is trying to address, we create in the definition of simple kidnapping and actually threaten somebody with a fine of $5,000, imprisonment for five years or both. I think that provides a real discouragement from any person in Louisiana doing what this bill seeks to prevent. Do we know how often this happens in Louisiana that we need to go to these extraordinary measure?"

So in short I think unless you can honestly testify that the other party has verbally threatened to kidnap your child the Court will grant the trip.   If there is an abduction there's probably not much recourse through the Courts you'll have to try and take your case public and win in the court of public opinion and bring pressure on the case that way.  To do that you'll want to establish the pre-story.  That is you'll probably want to go to court and make every effort to convince the court not to let the trip commence.  That way if it does and it goes south you'll have a compelling story of how the court ignored your pleas and now look at the situation.  These are just my own personal thoughts.  I'm not an attorney and this is not advice.  Truly the best advice I can give it take it to the highest court of all......pray......pray fervently, pray often and pray long.  Good luck and let us know.
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