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2012: The Child Abduction Protection Act: San Diego Family Law Courts: Divorce; Legal Separation & Paternity

In San Diego, for every custody and visitation order in a paternity, divorce or legal separation case which a San Diego Superior Court Judge makes, there must be the following required findings: what is the basis for the Court to exercise its jurisdiction and what is the country of habitual residence as well as the home state; that both parties had notice and an opportunity to be heard; a clear description of the order itself and that a violation of the order may result in criminal and/or civil penalties. In addition, there are cases in which one party alleges that another is a “flight risk” with the child or children and the Court can make additional findings. There is no distinction between a legal separation, paternity or divorce.

The San Diego Superior Court Judge, in a divorce, paternity or legal separation can consider at either parties request this risk of abduction and potential harm to the child if abducted as well as any problems regarding the recovery of the child including locating the child and the return of the child. The factors which a Judge can consider in assessing any risk of abduction include {but are not limited to} the following: whether a parent has previously concealed or withheld a child or actually abducted a child in the past; whether either parent has threatened to abscond with a child or to conceal a child in violation of a custody order; what ties are present to San Diego and California; whether a parent has strong cultural, emotional or familial ties to another state or country or has foreign citizenship but only if other factors listed are present; whether the parent has any financial reason to stay in San Diego; whether a parent has started or is planning activities that would lead to the conclusion of the reasonableness of the assertion of abduction such as selling a house where they live, quitting their job, closing bank accounts, liquidating assets, applying for a passport or purchasing airline tickets and also whether a parent has a criminal record. This is a fact based analysis.

If the San Diego Superior Court Judge finds that there is a risk of abduction, then the Judge can make the following restrictions. Some of these restrictions could include that the Hague Convention would apply in the case of an abduction, requiring the registration of a San Diego order with a foreign jurisdiction which could include another state or another country, requiring notification to a foreign embassy of any restrictions, requiring the surrender of any passports or travel documents; forbidding the issuance or re issuance of children’s passports, restricting the right to remove the child from the state of California, posting a bond any even supervised visitation.

If you have a case in San Diego Superior Court where abduction is an issue either threatened or has occurred, please feel free to contact us for a confidential consultation. This is a very complicated area of the law and legal advice is imperative.

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