Peter Thomas Senese Discusses Parental Child Abduction Summer Scams: Ways Abductors Fraudulently Trick Targeted Parents In Order To Kidnap Children
THE ARTICLE 13 CONSENT OR ACQUIESCENCE DEFENSE: PETITIONERS CONSENTED TO OR ACQUIESCED IN THE REMOVAL OR RETENTION.
I have previously written that during the summer school break children are at the highest risk of being a victim of international parental child abduction. Often, cases of international child abduction that occurs during this time of year is when a parent initially travels with their child abroad with consent from the child’s other parent. Often, the other parent (typically unsuspecting of any acts of abduction) will travel with scheming parent who is in reality, in the process of fraudulently planning an international child abduction. Once the scheming parent arrives in the country they are visiting, they unleash their abduction scheme, which can include legal petitions stating that the other parent had in fact consented to a relocation before they left the child’s country of original jurisdiction, or had subsequently agreed to relocate while in the new country.
This is a very serious matter, and I know many parents who were victimized by abduction under The Hague Convention’s Article 13 – Consent or acquiescence Defense.
During the coming summer … parents traveling abroad really need to understand some of the do’s and do not’s!
Under Article 13(a) of the Hague Convention, the court is not bound to return a child if the respondent establishes that the petitioner consented to or subsequently acquiesced in the removal or retention. Both defenses turn on the petitioner’s subjective intent, but they are distinctly different. The defense of consent relates to the petitioner’s conduct before the child’ removal or retention, whereas the defense of acquiescence relates to “whether the petitioner subsequently agreed to or accepted the removal or retention.” The respondent must prove these defenses by a preponderance of the evidence; however, even if one of these defenses is proven successfully, the court nonetheless retains discretion to order the child’s return.
Courts have expressed that such consent can be proved successfully with relatively informal statements or conduct. Because consent requires little formality, courts will look beyond the words of the consent to the nature and scope of the consent, keeping in mind any conditions or limitations imposed by the petitioner. Conversely, the Friedrich v. Friedrich (Friedrich II) court held that acquiescence requires “an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time.” The following are some of the most common arguments and actions that parents use in their attempts to prove or disprove the defenses of consent and acquiescence.
1. Authorization To Travel.
Often, a respondent produces a signed “Authorization to Travel” document as evidence that the petitioner gave consent for the child to change residences. Courts rarely accept this as evidence that the other parent consented to the child’s removal. In Mendez Lynch v. Mendez Lynch, the court held that an Authorization to Travel, which allowed the children to travel freely, did not indicate that the other parent gave up his legal rights of custody. There, a father signed a broad Authorization to Travel that allowed the mother of the children to take the children out of Argentina. The court held that the “evidence [was] clear that the written consents to travel were given to facilitate family vacation-related travel, not as consent to unilaterally remove the children from Argentina at the sole discretion of Respondent.”
2. Words And Actions Of Left-Behind Parents.
Courts frequently echo the warning of the Friedrich II court that “[e]ach of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.” Here, a third-party claimed that Mr. Friedrich stated that he was not seeking custody of his child because he lacked the means to support the child. The Sixth Circuit responded that, even if the statement was made, it is “insufficient evidence of subsequent acquiescence.” Additionally, “isolated statements to third parties are not sufficient to establish consent or acquiescence.”
3. Nature Of Children’s Removal.
When the abducting parent removes the child in a secretive fashion – for example, during the night, while the other parent is away, or without informing the other parent – a court is more likely to find that the other parent did not consent or acquiesce to the child’s removal. In Friedrich II, the Sixth Circuit stated that “[t]he deliberately secretive nature of [the mother’s] actions is extremely strong evidence that [the father] would not have consented to the removal of [the child].” One court referenced the abducting parent’s “deception,” which prevented any acquiescence by the left-behind parent.
For more information on International Parental Child Abduction in the United States, please visit the Department of State’s Office of Children’s Issues website. In Canada, please visit the Ministry of Justice. You may also visit the I CARE Foundation or the official website of Peter Thomas Senese’s Chasing The Cyclone for extensive information on abduction.
Remember, each of us can help protect children by raising awareness of IPCA. I invite you to read just how important it is to stop abduction by reading ‘Testimonial letters about Peter Thomas Senese and the I CARE Foundation’.