International Parental Abduction
McFarling Law Group routinely represents clients in cases where one of the parents is accused of having abducted his or her child to or from the state of Nevada by the other parent when the other parent is in a foreign country.
We handle both cases within the United States and cases where the child is kidnapped to or from another country. For cases involving parental kidnapping within the United States, see our PARENTAL KIDNAPPING practice area.
There are very specific laws that apply when a parent is accused of kidnapping their own child internationally by the other parent as well as very specific procedures for obtaining the return of such a child. Even the standard family law attorney is not necessarily going to be able to assist in the specific situation of an international parental kidnapping as expertly as McFarling Law Group due to our specialized experience in this area.
HAGUE CONVENTION CASES
There is an international treaty called the Hague Convention that provides for an expedited mechanism for a parent to obtain the assistance of the State Department, find an attorney, and file with the court to request the return of their child to their home country. These laws only apply when both countries are party to the treaty. The US is a party to the treaty. When a child is kidnapped to Nevada from another treaty country, then McFarling Law Group can assist either parent in the court proceedings detailed in the treaty.
Emily McFarling is part of the U.S. Department of State International Child Abduction Attorney Network and is tasked with representing parents who have either had their children abducted to Nevada from another treaty country or parents who have been accused of abducting their child to Nevada from another treaty country.
When a child has been kidnapped by a parent to Nevada, the left behind parent can apply for assistance from the central authority in their own country that then coordinates with the US State Department. The left behind parent files a petition for return of the child to the home country. This case can be filed in the state courts, but is most often filed in federal court. There are expedited timelines and specific rules of evidence that apply in such cases. These cases must go to trial within 90 days of being filed and result either in an order for return of the child or an order denying the request for return of the child. The factors that the court must weigh are very specific to this type of case and defined by the Hague treaty. McFarling has represented numerous clients in both federal court and state court in Hague return of child cases, both for the left behind parent and the parent alleged to have abducted the child.
NON-HAGUE CONVENTION CASES
When a child is abducted to or from Nevada and a foreign country that is not a party to the Hague Convention, the same laws as in cases within the U.S. apply, although the procedures for communications with courts and attorneys in the foreign country and obtaining documents from other countries can be more complex.
The law allows for specific mechanisms to retrieve an abducted child, such as a pick up order, a custody warrant, and an order for the parent to appear in court with the minor child. Further, if a parent is found to have kidnapped his or her child, there is a presumption that parent should not even have joint physical custody.
McFarling Law Group is particularly skilled in following the exact procedures to quickly retrieve an abducted child, from obtaining a pick up order or custody warrant to working with government officials and law enforcement to actually retrieve the abducted child. We additionally can provide experienced representation in ensuring that the custody and visitation orders provide for protection of the child in the future.
For parents accused of abduction, our knowledge of the kidnapping laws assist us in providing the best possible defense to actions to retrieve the child and actions for custody based upon an allegation of kidnapping.
WORKING WITH FOREIGN DOCUMENTS, ATTORNEYS AND COURTS
McFarling Law Group is particularly experienced in dealing with cases that involve an international aspect. We are skilled at the highly complex procedures for obtaining official and translated court documents from other countries, certifying and translating court documents from Nevada for use in other countries, coordinating with foreign attorneys and courts and researching the laws in foreign countries for use in cases in Nevada. If you have a case with any international issues, we can assist in all the complexities that entails.
Federal Hague Cases
Merchan- U.S. District Court:
In this case, I represented a Father, a Colombian national, whose child was detained by the mother in the U.S. contrary to a valid Colombian Custody order. Even though the child expressed a desire to remain in the United States with her mother, my client prevailed in U.S. District Court as the child’s wishes alone were insufficient to overcome the father’s valid foreign custody order. After the decision, the mother was defying the court order and hiding the child. My office assisted law enforcement in retrieving the child from school, obtaining overnight secure housing for her and delivering her to her father at the airport. My client currently has his daughter back home with him in Colombia.
Mother from Cuba: A mother from Cuba lived in Mexico where she had a baby by an abusive Mexican national. After he threatened to kill her, she fled with the child to Nevada. The father filed a Hague case in federal court seeking the return of his child to Mexico. After a multiple day trial, the judge denied the father’s request for return of the child and allowed the child to remain in Nevada with our client.
Father from Mexico: A mother from Mexico left her husband and brought the child to Nevada. The father filed a Hague case in federal court, but was more interested in securing visitation than returning the child to Mexico. We successfully negotiated a settlement that resulted in the filing of a divorce and custody case that gave our client significant visitation with his child.
Family Court Cases
Mother from Bosnia: Mother sent her two children to visit the father in Nevada for the summer. He refused to return the children. We obtained a child custody order for the Mother to have custody of the children in Bosnia.
Father in China: Mother took the child from the family home in China and came to Nevada. She hid the child for many years and obtained a default custody order in Nevada. I represent the father in appealing that default custody order.
Father from Germany: Father sent his child for summer visitation with the mother in Nevada. Mother filed a custody case in Nevada. Through the case the mother filed, I obtained a pick up order and order that gave me custody to retrieve the child and put her on a plane to Germany. I had to obtain a temporary German passport from the German Consulate in less than 24 hours as the mother refused to provide the child’s passport. The child was placed on the plane to her father in Germany and happily lives there with him today.
Ogawa v. Ogawa, 125 Nev. 660 (2009).
In this case our client relocated from Nevada to Japan with the minor children without the mother’s permission. The mother filed a divorce and custody action in Nevada after the children had been in Japan for eight months. The district court took jurisdiction and ordered the client to return with the children—citing the Hague Convention to which Japan was not a signatory. The client refused to return the children and did not appear for trial, although he was represented by counsel at the trial. The trial judge awarded custody to the mother at trial as a sanction for the father not appearing.
I appealed to the Nevada Supreme Court. In a published opinion, the Nevada Supreme Court en banc held it was improper to default a litigant when he had an attorney appear on his behalf, and even in the event of a default, the Judge should have made orders pursuant to the law. The Nevada Supreme Court also held in situations where a party may have misled the other party as to their intentions when leaving a State, the time period for jurisdiction begins when the party becomes aware the other party has actually relocated and does not intend to return.
We represented the client also on remand where the court relinquished child custody jurisdiction. My client is still in Japan with his children.
Davis v. Ewalefo, 352 P.3d 1139 (2015).
In this case, the trial judge denied the father, our client, the right to exercise his visitation in a foreign country where he was employed. We appealed to the Nevada Supreme Court. The appeal focused on a parent’s constitutional rights to parent and exercise his visitation where he sees fit so long as the child was not in danger. In an en banc published decision, the Nevada Supreme Court reversed the trial court’s decision and remanded the case back to the district court for our client to be allowed visitation in Africa where he lived. An important element of this case is that the father was found not to be a kidnapping risk, which was a factor in the decision to allow him to have visitation in Africa in a country that is not a party to the Hague Convention.
Unpublished Appeal Decisions:
Adamska- District Court Case, Nevada Supreme Court Case No. 67328, & U.S. Supreme Court Case No. 16-797:
In this case, our client unilaterally removed her two children to Poland without the father’s knowledge. The father filed for divorce and custody in Nevada. After two years of litigation, the Nevada District Court ultimately dismissed the custody case, deferring jurisdiction to Poland and issued a status divorce. On appeal, the Nevada Supreme Court affirmed the District Court. The father then appealed to the United States Supreme Court where they declined to review the case. Our client remains living in Poland with her children with custody decisions able to be made by the Polish court.
Kashuba- Nevada Supreme Court Case No. 69829:
In this case, I represented a mother in an appeal. She had originally settled for joint custody after the father alleged she kidnapped her child to Canada and that decision to settle then led to the court awarding the father to have primary physical custody despite there being prior evidence of domestic violence by him. The court had excluded certain evidence at trial based on it having occurred prior to the most recent custodial order. I appealed. The Appellate Court reversed the decision and remanded with the district court to conduct a new trial and allow in the previously excluded evidence. In addition to the appeal, we represented the mother in the second trial where she presented the previously excluded evidence and obtained primary physical custody. Our client now has custody of her son in Canada.
Merchan- 9th Circuit Case No. 14-16045:
In this case, I represented a Father, a Colombian national, whose child was detained by the mother in the U.S. contrary to a valid Colombian Custody order. We won at trial, but the mother appealed. The Ninth Circuit Court of Appeals affirmed the Federal District Court’s decision after oral argument and briefing.