Massachusetts divorce lawyer Nicole K. Levy reviews how international travel can create conflict in child custody cases.
One area of dispute that frequently arises in child custody cases is international travel. When a parent has family that resides abroad, or simply enjoys traveling with the children, the issue of international travel will ultimately need to be discussed. Depending on the age of the child, the length of the proposed travel, the destination country, and the history of the family, a disagreement over international travel can present a significant barrier to settlement.
The Appeals Court recently dealt with international travel in an unpublished opinion, Villafranca v. Villafranca (2017). In Villafranca, the Father appealed from a judgment which modified the terms of the parties’ 2012 divorce agreement that permitted him to travel internationally with the children as follows:
Father shall be allowed to travel internationally with the minor children (for 10 days) each year and mother shall be allowed to join father and children.
In 2014, the Mother filed a Complaint for Modification, seeking an order prohibiting the Father from traveling abroad with the children, despite the agreement’s language. The Father filed a Counterclaim, requesting that he be allowed to traveling abroad with the children without the Mother. In May of 2015, the trial judge, Hon. Maureen H. Monks of the Middlesex Probate and Family Court, issued a judgment of modification allowing the Father to travel with both minor children without the Mother to the country of Peru for a period of time not to exceed 10 consecutive days, but only after the youngest child reached seven years old.
Notably, “at the time of the modification trial [i.e. May 5, 2015], the parties’ son was seven years old and the daughter was three years old.” In practical terms, the judgment of modification meant that Father would have to wait for four years – until approximately 2019 – before he could travel to Peru with the children. The Father appealed the judgment based on the time restriction that prevented him from traveling internationally with the children for the four years following the judgment.
In Villafranca, the Father argued that the Mother failed to present a material change in circumstance to warrant a modification of the Separation Agreement’s language about travel. In its decision, the Appeals Court noted that the language of Father’ counterclaim and pleadings acknowledged that both parties had interpreted the original agreement as only allowing Father to travel internationally if Mother was present.
Whether this was the parties’ intent in 2012, or whether this was how the Separation Agreement should be interpreted is perhaps questionable. Another reading could be that the Mother had the right to travel with the Father and children, but travel was not conditioned on her ability to accompany the Father and the children. However, as the Appeals Court made clear, used the language contained in Father’s pleadings clearly favored a reading of the agreement under which Father could only travel if Mother were present.
During trial, it was revealed that the children had previously been to Peru, but never without the Mother. The Mother indicated that she was no longer comfortable with the children traveling with the Father alone, due to an “incident”. (The Appeals Court noted that the details of this “incident” were not brought out during the cross examination.) In addition, Mother now had two other young children, both under two years, and could not accompany the Father and the children to Peru. These facts, taken in combination, were sufficient for Judge Monks to find that a modification was warranted.
The Appeals Court quoted the findings entered by Judge Monks as follows:
Both of the parties[‘] children are fairly young and have not spent significant time away from the Mother. However, the Father’s family of origin is from the country of Peru and Peru is a signatory to the Hague convention. Although Father’s international travel with the children for up to 10 days was agreed-upon by the parties in the prior Judgment, it appears that the parties understood that the Mother would accompany the Father during such travel. This has not happened. Once the children are slightly older, absent any further court order, travel with the Father for up to 10 days is consistent with their best interests.
The Appeals Court affirmed this decision, denying the Father’s appeal.
As noted by the Appeals Court in Villafranca, a Massachusetts Probate and Family Court judge has extremely broad discretion when it comes to entering orders for visitation or parenting time:
A judge has broad discretion in formulating a parenting plan, and we will not disturb an order concerning custody or visitation, absent an abuse of discretion. A judge may modify a judgment relating to custody and a parenting plan where a material and substantial change of circumstances has occurred and a judgment of modification is necessary in the best interests of the children. The determination of the extent and palpability of such change lies in the discretion of the trial judge. Absent clear error, we review the judge’s determination of the child[ren’s] best interests only for abuse of discretion. (Internal quotes and citations omitted).
Unlike financial issues, it is somewhat rare for the Appeals Court to render lengthy opinions on parenting time. One reason for this is the very broad authority granted to probate court judges, which means such decisions are only rarely reversed. Equally important is that each parenting plan tends to be highly fact-specific. Visitation plans don’t involve the same kind of mathematical formulas we find in financial cases; there is no “one size fits all” when it comes to custody and parenting time.
In Villafranca, the proverbial “elephant in the room” was the reference the Court made to the “last incident” that occurred between the Father and children. The Appeals Court decision makes clear that something appeared to happen that disturbed the children and/or Mother, but where the Father’s attorney did not cross-examine the Mother about the incident on the record, the Appeals Court had no way of knowing what might have transpired. It is fair to assume that this incident affected the way that Judge Monks viewed the question of international travel. It is difficult to say whether additional evidence about the “incident” would have helped or hindered Father’s case on appeal. Perhaps the Appeals Court would have held that the incident was not serious enough to warrant the judge’s time restriction on international travel. Perhaps additional information would have confirmed the appropriateness of the order. Ultimately, the burden was on Father to develop the record for the Appeals Court, and the lack of cross-examination of the Mother on this subject made it hard for the Appeals Court to find clear error on the part of the probate court judge.
International travel is an area of frequent and increasing litigation. Geopolitics move fast these days and it is not uncommon for controversies to arise when a parent wants to travel to a location that the other parent deems as dangerous. These issues can be especially challenging when one parent was born in a foreign country that the parties visited with the children prior to separating. Peru is not an extremely dangerous country, but there are certainly some safety concerns where the State Department says the following:
SECURITY: Narcotics traffickers, terrorist groups and other organized, armed bands still operate in some remote parts of Peru. U.S. Embassy Lima enforces a Restricted Travel Policy for Embassy personnel, which is based on its assessment of conditions and developments throughout the country.
CRIME: Armed robberies, express kidnappings, carjacking’s, and petty theft occur frequently. Credit card fraud is also common in Peru. “Smash-and-grab” style robberies are most often reported on main tourist corridors immediately following arrival at Lima’s airport. Use only official airport taxi services. Do not hail taxis on the street.
While violence committed against foreigners is infrequent, robberies involving violence have been on the rise. Do not resist a robbery attempt. Victims who do not resist generally do not suffer serious physical harm. Some criminals with a motive of robbery or sexual assault may target victims by drugging them in bars and other areas frequented by tourists. Remain alert and aware of your surroundings.
Crime is not the only concern for parents, however. Take a country like Cuba, for instance, where the crime rate is considerably lower than Peru, but where the United States and Cuba have frosty diplomatic relations. The chances of children being physically harmed is arguably lower in Cuba than in Peru, but where Peru is a signatory to the Hague Convention, and the American embassy likely wields greater influence in Lima than Havana, some parents might feel that travel to Cuba poses greater risks than Peru.
Similarly, a country like Iran is relatively safe from a crime perspective, but with the Iranian government repeatedly jailing American citizens who visit the country to see family, it easy to see why some parents might balk at allowing their young children to travel to Iran. Iran is tied for 6th in the number of State Department travel warnings issued in the last seven years; however, it appears that no Americans died in Iran during this span, while 598 Americans were killed in Mexico during the same span.
Lifehacker recently posted a helpful review of which countries are the most dangerous places for Americans to travel to, noting:
The world can be a dangerous place, especially for careless travelers. The U.S. State Department does its best to alert tourists of the risks, but those warnings don’t always paint a clear picture. Turns out, the countries issued the most travel warnings aren’t always the most dangerous.
The author goes on to note that State Department travel warnings do not always convey the potential danger posed to American travelers abroad:
So, do State Department travel warnings reflect actual danger for American tourists? Yes, but the number of travel warnings issued are not a good metric to go by. In fact, many countries like Belize, Guyana, and Guatemala see high rates of American death, but haven’t been issued a single travel warning in the past seven years. And it goes the other way too. Countries like Israel, Turkey, and Saudi Arabia have all been issued many travel warnings over the years, but they have very low death rates for American travelers.
The question of whether travel to another country poses an unreasonable risk of harm to children is complex. After all, the United States has the 108th highest murder rate of 218 countries in the world. The rest of the world might be dangerous, but there are plenty of locations in the United States that pose a danger to visitors. (Despite fears of terrorism in France, for example, parents should note that the country ranks 174th out of 218 nations in murder rate, which is less than a third of the US murder rate.)
Of course, crime is not the only threat during international travel. Tropical diseases, poor medical and emergency services, and language barriers can increase risks associated with illness and accidents while traveling. Trouble accessing bank accounts or support systems in emergencies can pose similar risks. That said, many parents react very strongly to media reports of foreign disasters. For example, millions of people travel by train in India each year, with dozens of riders killed each year in accidents due to poor management infrastructure. Many American parents react to Indian train death stories by overestimating the danger their children might face from such a threat, not recognizing that a traveler driving on an American highway is far, far likelier to die behind the wheel compared to a passenger on an India train.
Many studies have concluded that what Americans fear has very little to do with the actual risks we and our children face. Recent studies indicate that terrorist attacks are the #2 fear of Americans, despite the fact that more Americans have been killed by toddlers wielding guns than by terrorists in the last ten years. The inability of parents to objectively weigh the risks faced by our children is hard-wired into the human brains. As Psychology Today puts it:
Fear hits primitive brain areas to produce reflexive reactions before the situation is even consciously perceived. Because fear strengthens memory, catastrophes such as earthquakes, plane crashes, and terrorist incidents completely capture our attention. As a result, we overestimate the odds of dreadful but infrequent events and underestimate how risky ordinary events are. The drama and excitement of improbable events make them appear to be more common. The effect is amplified by the fact that media tend to cover what’s dramatic and exciting, Slovic notes. The more we see something, the more common we think it is, even if we are watching the same footage over and over.
For many parents, international travel by their child triggers a deep, primal and highly subjective fear. Such fears are often motivated by news media stories. We know that bad news dominates media coverage, and the focus on disaster and oddity is only increased with foreign countries. Television news is about ratings, and the networks understand that drawing viewers’ attention requires tapping into the fear response that triggers increased concentration. News media focus on fear-inducing stories because viewers watch.
In the context of international travel, it is easy to understand why parents are afraid. Travel outside the US represents a fearful journey to the unknown, among foreign peoples, cultures and risks. It does not matter if parts are of our own capital, Washington DC, have far higher crime rates than the destination city. Nor does it matter if the destination has free, nationalized health care that is superior to America’s, virtually no violent crime, and impeccably safe travel and accommodations.
Parents who are opposed to international travel on safety grounds are generally best served by presenting the court with as much objective safety data as possible, including State Department alerts, news articles containing reliable statistics, and personal experience in the location in question. Parents who are seeking permission to travel over the objection of a parent who cites safety concern should likewise rely on statistics to compare crime and health outcomes in the foreign destination compared to local cities or other destinations in the United States where a parent could travel without opposition.
Although safety concerns are one reason that international travel sparks litigation, parents opposing international travel often have better luck with another argument: the distance and separation that international travel creates between a child and the non-traveling parent. As the Court noted in Villafranca, the children were “fairly young and ha[d] not spent significant time away from the Mother.” A child suffering from separation anxiety from a primary caretaker is likely to feel his or her anxiety even more acutely in a foreign land, with an unfamiliar language and culture, in a trip bookended by lengthy international flights.
Parents seeking to prevent international travel based on the age, maturity and inexperience of children are often more successful if they can specifically quantify claims, such as providing dates to illustrate the most time the child has ever spent away from that parent. Additionally, these parents should strive to explain the specific emotional needs of their child to a judge, emphasizing the specific reasons why an international trip that might be fine for another similarly aged child is not appropriate for their child. Parents who are seeking to overcome the separation argument are generally best served by emphasizing their qualifications as a parent, including the parenting time afforded to them under the base parenting schedule, and the prior history of travel or vacations he or she has with the children.
A narrow class of cases focuses on parents who fear international travel because of concern that the other parent might not return the children to the United States. Parental kidnapping is quite rare in the United States, but it is an example of low-probability, highly catastrophic possibilities that judges must pay attention. Of particular concern are cases involving a parent who has not spent much time in the United States, and who hails from a country that is not a signatory to the Hague Abduction Convention.
Nations who have signed onto the Hague Convention essentially agree to honor child custody orders entered in other countries who belong to the treaty. The convention provides a method for seeking the return of a child taken from the United States in violation of a custody order, and requires the US to similarly honor foreign custody orders. Currently, there are just over 90 nations who have signed the Hague, which is just under half of the countries in the world.
Just because a nation is not a member of the convention does not mean that parental kidnapping can proceed. For example, the United States famously returned Elián González to Cuba in the 1990’s, despite Cuba’s status as non-signatory to the convention. However, the law surrounding international parental kidnapping is a hodge-podge in non-Hague countries, and for parents with legitimate fears about parental kidnapping, the Hague status of the destination country is a legitimate area of concerns.
Other risk factors that can feature in parental kidnapping case include:
- If the travelling parent is unable to stay in the US due to immigration issues
- Serious disagreements between the parties about religious or cultural upbringing
- If the traveling parent recently received an adverse judgment or custody order from the court
- Unusually strong influence by the family of the traveling parent
- Strong cultural norms in the destination country regarding child custody based on a parent or child’s gender or class status
- Very short marriages, marriages of convenience or marriages primarily motivated by immigration status
- Parents with a history of very high international travel, speaks multiple foreign languages, etc.
- Commons sense risk factors relating to the destination country, such as high crime, poor status for children or one or both genders, and other instances of parental kidnapping
- Common sense risk factors relating to the traveling parent, such as a stated desire to remove the children from the US and whether the parent has the means, resources and intent
Judges will listen and carefully consider a parent’s concerns regarding international parental kidnapping. However, judges also understand that such concerns often become a stand-in for the more generalized fears described above. To successfully prevent international travel based on kidnapping concerns, a parent must generally provide evidence that transcends simple hearsay or speculation. Such parents should be prepared to offer specific evidence detailing the traveling parent’s history, intent and opportunity to abduct a child in another country. If, for example, the traveling parent is a Massachusetts native who has few contacts in a relatively safe foreign country that is a member of the Hague, a judge will probably be skeptical about concerns over kidnapping. Judges are well aware of the fear that surrounds international travel – both rational and irrational – and most will press parents for persuasive evidence that the traveling case poses a specific kidnapping risk for the trip in question.
One reason that international travel can spur conflict in custody case is that such trips require logistical cooperation out of parents who are frequently struggling with other issues. Most international travel requires a child to hold a passport. However, where only one passport can exist for each child, trips abroad frequently require parents to voluntarily provide the passport to the other parent. Similarly, travel authorizations that are signed by the other parent are strongly recommended by the federal government. The exchange of the passport and/or execution of a travel authorization can pose problems, particularly if other areas of dispute exist between the parties.
A common area of disputes over international travel arises out of agreement provisions that require parities to share proposed travel dates and itineraries in advance of a trip. Such provisions are a common sense solution to the reality that it is difficult for families to know the exact timing of a vacation or trip abroad in future years after the agreement is entered. However, because such provisions often include a need for consent and coordination between the parties, it is not uncommon for one parent to refuse to agree to the other parent’s travel request based on safety concerns or conflicting dates. Disputes over insufficient notice, conflicting schedules and one party’s failure to adhere to the requirements of an agreement can result in one parent refusing to provide a passport or travel consent for an international trip.
It disputes of this nature, it can be hard to determine which party is right or wrong. In many ways, such disputes are the natural byproduct of international travel itself; the logistics of such trips are often too complicated to schedule without coordination between parents.
Ultimately, most judges will allow children to travel with parents who are safe enough to enjoy regular overnight parenting time. However, it is not unusual for judges to impose limits on such travel, including the length of time a parent may vacation with a child, and age-restrictions such as those imposed in Villafranca, where the daughter was only 3 years old and had never spent significant time away from the Mother. By the time the same child is 7, the judge likely reasoned, the daughter would be better equipped to handle a prolonged separation from her mother and handle some of the stresses and challenges of international travel.
About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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