United States – California

How can you prepare child relocation from or within the United States – California? What if your child has been relocated without your consent?

The United States are a member state of the Hague Convention on Child Abduction.

We will explain what this means for your options.

The relevant U.S. laws are:

  • the Parental Kidnapping Prevention Act and
  • the Uniform Child Custody Jurisdiction and Enforcement Act
  • the International Child Abduction Remedies Act (ICARA).

 

Parental authority: United States – California

Decision making model

Authority

When both unmarried parents sign a declaration of parentage or paternity, it means they are the legal parents of the child. Signing a declaration of parentage or paternity is voluntary.

The parents can sign a declaration at the hospital when the child is born. If the parents sign at the hospital, both parents’ names will go on the child’s birth certificate, and the birth mother does not need to go to court to prove who the other parent of the child is.

The declaration can also be signed later. If the parents sign it after the child’s birth certificate has been issued, a new birth certificate can be issued with the other parent’s name.

The  declaration of parentage or paternity must be signed at one of the public agencies (unless it has been signed at the hospital) or witnessed by a notary public.

Once the declaration is signed, the form must be filed with the California Department of Child Support Services Parentage Opportunity Program (POP)External link icon in order to be effective. A properly signed declaration of parentage or paternity has the same effect as a court order establishing parentage for the child, without anyone having to go to court. You can read about the declaration on the website of the Californian Courts.

After a signed declaration of parentage or paternity is filed with the court, the judge can make orders for custody, visitation, and support.

After parentage is established, each parent has:

  • An equal responsibility to support the child, and
  • An equal right to custody of the child.

Traveling with children: United States – California

Passport Issuance

Passport issuance to minors (Two Parent Consent Law), 22 U.S.C. 213n and 22 C.F.R. 51.28, requires both parents consent to the issuance of U.S. passports for children under the age of 16, unless the applying parent or legal guardian can establish that consent of both parents is not required.     

Travel consent form

If you want to travel abroad with your child, you need permission from the other parent, if the other parent also has custody.

Decision making model

Child relocation: United States – California

Child relocation request

If a parent wants to move away with his or her child, and the other parent with custody does not agree, the parent can ask the court for a child move away order (child relocation request).

Criteria
The court will consider the following criteria in making its determination:

  • The best interest of the child;

  • The status of current child custody orders (temporary or permanent);

  • The status of any child visitation orders (the frequency of parenting time);

  • Any change in circumstance requiring a move (the reason for the custodial parent’s relocation);

  • T​he de facto status of child custody (if no child custody orders are in place);

  • Any negative impact that would result in a change of child custody or child visitation;

  • The distance of the proposed move;

  • The child’s need for continuity and stability;

  • The child’s extended family relationships;

  • The relationship between the respective custodial parents and their minor child;

  • The parents’ ability to work with each other in exchanging physical custody of the minor child during holidays, vacation time, etc., if the proposed move away is granted;

  • The child’s needs (i.e. health, school, etc.);

  • The cost and availability of child visitation after a proposed move away;

  • The child’s connections to the community (the child’s connection to the proposed new community as weighed against the child’s connections to his or her current community;

  • The wishes of a child of sufficient maturity (usually at least fourteen (14) years of age;

  • The parent’s ability to keep frequent contact in light of the proposed move;

  • Whether or the parent has already moved with his or her child and the other parent did not object, or the parent that moved reasonably relied upon the other parent’s statement that he or she would not object to a move away, and more.

      In case of sole custody, the moving parent in general that parent has the right to change the child’s residence, especially if the other parent has little parenting time with the children.

      If the relocation has an effect on the visitation schedule and it’s costs, the court may order the moving parent to pay the other parent’s travelling costs for child visitation.

      The other parent may also ask the court for modificatoin of the visitation arrangement.

      Child abduction: United States – California

      Decision making model

      The United States are a member state of the Hague Convention on Child Abduction.

      The United States have non-binding memoranda of understanding with: Egypt, Lebanon and Jordan.

      The relevant U.S. laws are:

      • the Parental Kidnapping Prevention Act and
      • the Uniform Child Custody Jurisdiction and Enforcement Act
      • the International Child Abduction Remedies Act (ICARA).

      For more information, you can contact the Office of Children’s Issues, Bureau of Consular Affairs, U.S. Department of State in Washington. The USCA (U.S. Central Authority) will contact the alleged abducting parent to seek a voluntary return. The USCA will also offer mediation to the parents. The alleged abducting parent will be given a 2 week period to respond. If he or she responds, the USCA will work with the requesting Central Authority and all other appropriate entities in the U.S. to facilitate a voluntary return.

      The USCA will also help to locate your child if necessary.

      If your child was abducted from California to another country, you can contact the USCA for help, or the District Attorney’s Office, located in the county from which the child was abducted.

      Prevention

      In the U.S. there are several means to prevent the removal of re-abduction of a child:

      • the child’s passport(s) to be deposited with authorities
      • the alleged abductor’s passport to be deposited with authorities
      • obtaining orders toe prevent the removal of the child
      • issuing border and/or port alerts
      • requiring the alleged abductor to pay a bond/deposit
      • temporary placement of child in institutional care
      • entering a child into the Children’s Passport Issuance Alert Program (CPIAP)

      In the U.S. all state and Federal courts have jurisdiction to handle a case under the Hague Convention. The judges can use the Guide for Judges, which is a guide from 2015 about Hague Convention cases.

      The procedure can take more then 12 weeks, depending on the circumstances of the case. However, afther 6 weeks you can ask the USCA to seek a report on the status of court actions when no decisions has been reached by the end of six weeks.

      Whether or not the child will have an opportunity to be heard depends on the particular case and is up to the descretion of the judge. The judge can decide to have a direct interview with the child, to ask for an independent report or appoint a legal representitive for the child. The HCCH Country Profile about the United States specifically mentions that when a guardian ad litem is appointed, he or she should represent the views of the child, rather then the best interest of the child, because a Convention proceedings is not a best interests determination. When a child is interviewd by the court, this is called ‘a Lincoln hearing’. Only the court, the child’s attorney and the child are present. Normally, the parent’s attorneys may submit questions for consideration by the court. The parents and their attorneys have no acces to the transcript of the child interview.

      In the U.S. the time limit within which an appeal must be lodged varies from one State to another. The duration of the appeal varies. The appeal procedure can take less than 3 months, but also longer than 6 months.

      When a U.S. court orders the return of the child, ICARA requires the judge to order the abducting parent to pay the travel costs relating to the return of the child, unless the abducting parent can establish that such an order would be ‘clearly inapproprate’. The court can issue a ‘pick-up order’, and order f.i. a law enforcement entity to pick up the child from a certain location, such as the school or the home and escort the child to the other parent or an appropriate authority.

      When the abducting parent does not follow the court order to return the child, the court can hold that parent in contempt. This may include fines and/or jail sentence until the terms of the order are fulfilled. The wrongful removal of the child is a criminal offence.

      The USCA will provide information about mediation and refer the parties to mediators.

      In the return proceedings legal representation is not required. The USCA will provide contact details of attorneys who in some cases are willing to provide free legal aid or reduced rate legal assistance. The attorneys can decide this for themselves, bases on their own investigation of the case and the parent’s financial situation. There are several organizations who provode legal aid. The USCA will provide the contact information.

      Criminal law : United States – California

      California PC 278 

      Section 278 of the California Penal Code concerns the taking, keeping, and concealing of a child by a person who does not himself have custody of that child.

      Section 278.5 of the California Penal Code concerns the taking, keeping, and concealing of a child by someone who does have custody of that child himself or herself. This includes the situation where a parent has rights of access to a child and, for example, does not return the child to the other parent at the end of the access period.

      When a parent with physical custody does not return the child after the visitation period as established by the court, this parent can also be charged with contemt of court.

      If a parent decides to take, keep conceal a child because he or she believes there is mental or physical abuse by the other parent, the abducting parent should notify the local district attorney as soon as possible (in most cases, within 10 days). He or she should also initiate proceedings immediately (usually: within 30 days), requesting a modification of child custody and/or child visitation.

      If the abducting parent is prosecuted for child abduction, he or she may defend themselves by stating that there was a reasonable mistake of fact as to the child custody or visitation schedule, consent by the other parent to keep the child beyond the visitation period or inability to return the child.

      The court will determine the penalty based on aggravating factors presented by the prosecutor, such as:

      • Defendant exposed the child to a substantial risk or caused physical injury or illness
      • Defendant took the child outside of the country
      • Defendant hasn’t returned the child
      • Defendant substantially altered the appearance or name of the child

      Mitigating Factors Can Include:

      • Defendant returned the child safe and unharmed prior to the arrest or the issuance of a California warrant
      • Defendant provided assistance and information leading to the child’s return
      • Defendant undertook another action that could qualify as lesser charges

      Ater a return order

      In the United States, when the abducting parent does not follow the court order to return the child, the court can hold that parent in contempt. This may include fines and/or jail sentence until the terms of the order are fulfilled.

      The wrongful removal of the child itself is also a criminal offence.

      Decision making model

      Relevant websites : United States – California

      Permission form to travel with children

      www.eforms.com : Minor (Child) Travel Consent Form

       

      Relevant laws

      www.travel.stat.gov : International Child Abduction Remedies Act (ICARA)

       

      Central Authority

      The Office of Children’s Issues, Bureau of Consq.ular Affairs, U.S. Department of State in Washington.

      www.travel.state.gov : The United States Central Authority

       

      Guide for judges

      Federal Judicial Centre : A guide for judges

       

      Annual report 

      www.travel.state.gov : Annual report on International Child Abduction 2021

       

      Blogs : United States 

       

      International Child Abduction

      International Child Abduction

      By Johanthan W. Lounsburry Each year some parents are faced with a devastating reality: their partner has taken their child to another country and is refusing to return.  They are left-behind and at a loss of what do.  Not only is this an emotionally charged...

      Relevant case law : United States 

      Golan v. Saada

      Golan v. Saada

      Supreme Court of the United States, June 15, 2022 The Supreme Court ruled that a court is not required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that...

      Monasky v. Taglieri

      Monasky v. Taglieri

      Supreme Court of the United States, February 25 2020 In Monasky v. Taglieri the Supreme Court rejected Monasky’s argument that an actual agreement was required in order to establish shared parental intent. Monasky is a U.S. citizen. Taglieri an Italian citizen. They...

      Chafin v. Chafin

      Chafin v. Chafin

      Supreme Court of the United States, February 19, 2013 In Chafin v. Chafin the U.S. Supreme Court decided that an appeal procedure does not become moot if the child is returned pending appeal. In this case the District Court in Alabama had decided that the child must...