Hello Akivah:
Please remember that Google Answers Researchers are not lawyers (and
even for those who are, they are not acting as lawyers for purposes of
answering questions posted to Google Answers), and the information
here is available online and not intended to substitute for informed
professional advice. Please see the Disclaimer at the bottom of this
and every page.
In answer to your question, Section 3048 of the California Family Code
requires every visitation or custody order provide the following:
"(1) The basis for the court's exercise of jurisdiction.
(2) The manner in which notice and opportunity to be heard were
given.
(3) A clear description of the custody and visitation rights of
each party.
(4) A provision stating that a violation of the order may subject
the party in violation to civil or criminal penalties, or both."
- http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=69518514931+8+0+0&WAISaction=retrieve
and Section 3048(5) measures the determination for removing (or
abducting) the children from California:
"(5) Identification of the country of habitual residence of the
child or children.
(b)(1) In cases in which the court becomes aware of facts which 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:
(A) Whether a party has previously taken, enticed away, kept,
withheld, or concealed a child in violation of the right of custody or
of visitation of a person, regardless of whether the party acted in
compliance with Section 278.7 of the Penal Code or not.
(B) Whether a party has previously threatened to take, entice away,
keep, withhold, or conceal a child in violation of the right of
custody or of visitation of a person.
(C) Whether a party lacks strong ties to this state.
(D) Whether a party has strong familial, emotional, or cultural
ties to another state or country, including foreign citizenship.
This factor shall be considered only if evidence exists in support of
another factor specified in this section.
(E) Whether a party has no financial reason to stay in this state,
including whether the party is unemployed, is able to work anywhere,
or is financially independent.
(F) Whether a party has engaged in planning activities that would
facilitate the removal of a child from the state, including quitting a
job, selling his or her primary residence, terminating a lease,
closing a bank account, liquidating other assets, hiding or destroying
documents, applying for a passport, or applying to obtain a birth
certificate or school or medical records."
(Family Code Section 3048(5).)
- http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=69518514931+8+0+0&WAISaction=retrieve
If the court makes a finding that there is a need for preventative
measures after considering the factors listed above, it "shall
consider taking one or more of the following measures to prevent the
abduction of the child:"
"(A) Ordering supervised visitation.
(B) Requiring a parent to post a bond in an amount sufficient to
serve as a financial deterrent to abduction, the proceeds of which may
be used to offset the cost of recovery of the child in the event there
is an abduction.
(C) Restricting the right of the custodial or noncustodial parent
to remove the child from the county, the state, or the country.
(D) Restricting the right of the custodial parent to relocate with
the child, unless the custodial parent provides advance notice to, and
obtains the written agreement of, the noncustodial parent, or obtains
the approval of the court, before relocating with the child.
(E) Requiring the surrender of passports and other travel
documents.
(F) Prohibiting a parent from applying for a new or replacement
passport for the child.
(G) Requiring a parent to notify a relevant foreign consulate or
embassy of passport restrictions and to provide the court with proof
of that notification.
(H) Requiring a party to register a California order in another
state as a prerequisite to allowing a child to travel to that state
for visits, or to obtain an order from another country containing
terms identical to the custody and visitation order issued in the
United States (recognizing that these orders may be modified or
enforced pursuant to the laws of the other country), as a
prerequisite to allowing a child to travel to that county for visits."
(California Family Code Section 3048.)
- http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=69425013346+3+0+0&WAISaction=retrieve
A "loose" interpretation of the above is that a party to a custody
matter or the court, in its own, can request the court to make those
findings and issue an order with the above restrictions.
On the Federal level, most states and Federal law have adopted the
Uniform Child Custody Jurisdiction and Enforcement Act of 1997.
(UCCJEA). This provides that each state will recognize and uphold the
laws of another state as the authority for custody disputes and will
enforce orders issued in another state relative to custody.
- http://www.law.upenn.edu/bll/ulc/fnact99/1990s/uccjea97.htm
Internationally, Israel has ratified the Hague Convention on the Civil
Aspects of International Child Abduction ("Hague Abduction
Convention"), 19 I.L.M. 1501 (1980), whose objective is to "return of
child to habitual residence."
- http://travel.state.gov/custody_disputes.html
Despite Court ordered restrictions and promises to return set out in
orders issued by California courts, and the fact that Israel has
ratified the Hague Convention, it would obviously be very expensive to
enforce any order if the parent decided not to return the children to
the United States.
The above quotations from the California Family Code have been
provided for your information - and not as legal advice. You can see
that severe restrictions on travel can be ordered if the Court
determines there is sufficient reason to believe the children will be
abducted to another country. That may or may not be a deterrent to the
visiting or non-custodial parent.
The advice and information is no substitute for consulting with an
attorney who can assist in ensuring the best recourse to achieve your
objectives. In this case the adage, "An ounce of prevention is worth a
pound of cure." is certainly true.
Search terms used -
- California family code
- California child custody statutes
- Federal child custody statutes
- International child custody treaties
- International child custody enforcement
Hope this helps,
Serenata |
Request for Answer Clarification by
akivah-ga
on
23 May 2003 09:10 PDT
Thank you Seranata,
First, no custody issues have yet been settled in this case, therefore
you have jumped the gun, but anticipated the law very well. I have
been up to now acting as my own attorney, but when her attorney
mandated mediation (which my wife was unwilling to do privately) the
mediator came up with a status quo custody arrangement--essentially my
wife controls all custody of the children. After I had given the
mediator the 5 incidences of spousal abuse and court documentation
showing that I was unwilling to be a witness against my wife and their
dropping the case as evidence that my wife has me under her control
and that I need someone to tell her that our children need a father,
she came up with this full custodial arrangement for my wife with my
visitation at a new place and a requirement to move out. It was then
that I felt that I was not going to be listened until I got an
attorney. This has caused the present stalemate as we will not accept
this mediator's recomendations.
Your answer sounds just like the one (with the same citing(s)
verbatim!) I presented my recently acquired and first attorney for
this divorce case, but he rebuffed by saying it was more important to
get along with my wife than offend her by being a stickler (I have
bent over backwards for her the last 7 years of our 14 year marriage
now). The truth is I would like for her to fall back in love with me
and make amends, but I get indications that she is not ready and never
may be for psychological reasons--i.e. she was raised by a single
mother and for her this a normal way to raise kids and since her dad
died when she was 7, all men will desert her therefore it is better to
be the deserter than the deserted. I believe that if I could find an
attorney that was willing to have me win sole custody of the children
(which I initially thought I had)that since this is the only thing she
now values she will finally see that my position is vindicated and
will either negotiate or kidnap the children--at any rate I am
inclined to force her healing, but I really do not want to involve the
children or put them at risk. Her former husband just gave up and his
boy now has severe psychological problems because my wife does not
allow me to be his father just like she is doing with our children. I
am frustrated because the either courts and attorney do not see what
is going on here, do not care, or are mainly interested in the game
and the money instead of solving the problems of marriage today in our
society.
The problem with your answer even though you did get into my head very
well is that you did not really answer the question as far as what is
automatic in terms of the law. My attorney mentioned that when my
wife petitioned for divorce the courts automatically put some
restraints on where and how she can travel alone with the children (I
see nothing of this in the law yet so where does it come from –this is
part of the answer I was seeking), but he was not forthcoming about
what these are and what may countermand them. I believe that if it is
some sort of automatic restraining order then either a court motion
for exception, rescinding, or amendment (like a custody agreement
might include) is necessary for its real treatment. The air carrier
she intends to use assures me they need nothing from me for ticketing,
travel, or customs (and she needed nothing last year on a similar trip
she took with out the oldest one) therefore I wonder about her
pressure for getting an affidavit allowing her to travel a month in
advance. It is these automatic restraints that are at the heart of my
initial question.
Are you willing to tackle this tactical question of how best to
proceed ASAP--at noon today I was given an ultimatum to grant her
permission for this trip and I need a good answer if I do not intend
to. I had assured her that if she assures me she will return with the
kids as she say that i would cooperate. She threatens to waste our
money with a motion to kick me out of the house if I do not. (When it
is I that has good cause to kick her out as she is a very tempestuous
woman who endangers who she lives with her violence and lack of
appropriate supervision). Do you need more money if you would accept
this short notice answer?
Akivah
|
Clarification of Answer by
serenata-ga
on
23 May 2003 11:39 PDT
Hi Akivah:
Again, I am not an attorney and do not give legal advice.
I searched for the "automatic restraints", I found the following
information regarding the Summons issued in a dissolution:
"233. (a) Upon filing the petition and issuance of the summons and
upon personal service of the petition and summons on the respondent or
upon waiver and acceptance of service by the respondent, the temporary
restraining order under this part shall be in effect against the
parties until the final judgment is entered or the petition is
dismissed, or until further order of the court.
(b) The temporary restraining order is enforceable in any place in
this state, but is not enforceable by a law enforcement agency of a
political subdivision unless that law enforcement agency has received
mailed notice of the order or has otherwise received a copy of the
order or the officer enforcing the order has been shown a copy of the
order.
(c) A willful and knowing violation of the order included in the
summons by removing a child from the state without the written consent
of the other party or an order of the court is punishable as provided
in Section 278.5 of the Penal Code. A willful and knowing violation
of any of the other orders included in the summons is punishable as
provided in Section 273.6 of the Penal Code.
234. The automatic granting of the ex parte temporary restraining
order under this part is not a court determination or competent
evidence in any proceeding of any prior history of the conduct so
proscribed occurring between the parties.
235. Nothing in this part precludes either party from applying to the
court for modification or revocation of the temporary restraining
order provided for in this part or for further temporary orders or an
expanded temporary ex parte order."
- http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=7147697834+0+0+0&WAISaction=retrieve
I surmise this is the 'restraint' to which the lawyer referred.
As to the other matters, I cannot advise you, except it says that if
you do not give your consent, she shouldn't leave (and if she does, it
is against order of the court).
If you read the statutes as quoted in my Answer, you can petition the
court to restrain her from leaving with the children.
Beyond that, I, nor any of the Google Answers Researchers, can give
you professional advice. For me to do so would be tantamount to
practicing law without a license.
As for the amount of lead time to buy the airline tickets, could it be
that they are purchased that far ahead of time to save on air fare
costs? That is often the case with airlines.
Good luck in your struggles,
Serenata
|
,
0 Comments
)