Peter Thomas Senese: 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.
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'.
