In the US state of Alabama thirteen years ago, a five-year-old boy went missing. Julian Hernandez was living with his mother when one August day, his father Bobby decided to take him to preschool. Bobby packed the boy’s blanket and his favourite stuffed animal, drained his bank accounts, and left.
It was apparent almost immediately that Bobby had abducted his own son during a child custody dispute.
He wasn’t found until as an eighteen-year-old living in Ohio under a different name, he began to apply for college. The first red flag went up when his college application was rejected because his Social Security number did not match his name. A school counsellor then discovered Julian was listed in the National Center for Missing and Exploited Children database. Both Bobby and Julian were living under assumed names with a woman and two other children, according to officials, and Julian Hernandez probably didn’t know he was listed as missing.
Robert Lowery with the National Center for Missing and Exploited Children said that the case is a reminder to others who are searching for missing children to “never give up hope.”
Parents may believe that abducting their own children during a child custody dispute is the right thing to do or may protect the children. But it is illegal to abduct a child, even your own child.
Every parent has parental responsibility for their child. Essentially, parental responsibility is about making decisions about major long term issues in relation to a child, regardless of whether or not there are any Parenting Orders which have been made by the Family Court.
When there are Parenting Orders in place that provide that a child is to live with or spend time with a parent, and the other parent abducts/steals the child while the child should be with the other parent, that parent has committed a criminal offence. When one parent is in breach of those binding Orders, by taking a child from the parent who has the lawful care or charge of that child, that a criminal offence arises.
Similarly, if there Parenting Orders in place, a parent must have approval to take the child overseas or relocate with the child.
If a child has been abducted by one parent, the other parent may:
- report the child missing to the police
- place the abducting parent and child on an Australian Federal Police watchlist
- have the Family Court order the child to be returned at the abducting parent’s expense
Although negotiating the term of a parenting arrangement during divorce is often a difficult and distressing time, we always urge parents to settle the parenting arrangements as peaceably as possible. If this is not possible, it may be necessary to ask the court to make parenting orders for the parents.
When a court is making a parenting order, the Family Law Act 1975 requires it to regard the best interests of the child as the most important consideration.
The Family Law Act makes clear that:
- both parents are responsible for the care and welfare of their children until the children reach 18, and
- there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.
In deciding what is in the best interest of a child, the Act requires a court to take into account two tiers of considerations – primary considerations and additional considerations:
- The benefit to children of having a meaningful relationship with both parents.
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
- The Court is required to give greater weight to the consideration of the need to protect children from harm.
(includes the following but this is not an exhaustive list)
- The child’s views and factors that might affect those views, such as the child’s maturity and level of understanding.
- The child’s relationship with each parent and other people, including grandparents and other relatives.
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
- The likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives.
- Each parent’s ability (and that of any other person) to provide for the child’s needs.
- The right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right.
- Any family violence involving the child or a member of the child’s family.
If you need help with parenting arrangements, or have Parenting Orders in place that you believe may be breached, please contact us today. We offer a FREE, 10-minute phone consultation.