Colo. Rev. Stat. § 14-13.5-107

Current through Acts effective through 6/5/2024 of the 2024 Legislative Session

Section 14-13.5-107 - Factors to determine risk of abduction

(1) In determining whether there is a credible risk of abduction of a child, the court shall consider any evidence that the petitioner or respondent:

(a) Has previously abducted or attempted to abduct the child;

(b) Has threatened to abduct the child;

(c) Has recently engaged in activities that may indicate a planned abduction, including:

(I) Abandoning employment;

(II) Selling a primary residence;

(III) Terminating a lease;

(IV) Closing bank or other financial management accounts, liquidating assets, hiding or destroying financial documents, or conducting any unusual financial activities;

(V) Applying for a passport or visa or obtaining travel documents for the respondent, a family member, or the child; or

(VI) Seeking to obtain the child's birth certificate or school or medical records;

(d) Has engaged in domestic violence, domestic abuse, stalking, or child abuse or neglect;

(e) Has refused to follow a child-custody determination;

(f) Lacks strong familial, financial, emotional, or cultural ties to the state or the United States;

(g) Has strong familial, financial, emotional, or cultural ties to another state or country;

(h) Is likely to take the child to a country that:

(I) Is not a party to the "Hague Convention on the Civil Aspects of International Child Abduction" and does not provide for the extradition of an abducting parent or for the return of an abducted child;

(II) Is a party to the "Hague Convention on the Civil Aspects of International Child Abduction" but:

(A) The "Hague Convention on the Civil Aspects of International Child Abduction" is not in force between the United States and that country;

(B) Is noncompliant according to the most recent compliance report issued by the United States department of state; or

(C) Lacks legal mechanisms for immediately and effectively enforcing a return order under the "Hague Convention on the Civil Aspects of International Child Abduction";

(III) Poses a risk that the child's physical or emotional health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children;

(IV) Has laws or practices that would:

(A) Enable the respondent, without due cause, to prevent the petitioner from contacting the child;

(B) Restrict the petitioner from freely traveling to or exiting from the country because of the petitioner's gender, nationality, marital status, or religion; or

(C) Restrict the child's ability legally to leave the country after the child reaches the age of majority because of a child's gender, nationality, or religion;

(V) Is included by the United States department of state on a current list of state sponsors of terrorism;

(VI) Does not have an official United States diplomatic presence in the country; or

(VII) Is engaged in active military action or war, including a civil war, to which the child may be exposed;

(i) Is undergoing a change in immigration or citizenship status that would adversely affect the respondent's ability to remain in the United States legally;

(j) Has had an application for United States citizenship denied;

(k) Has forged or presented misleading or false evidence on government forms or supporting documents to obtain or attempt to obtain a passport, a visa, travel documents, a social security card, a driver's license, or other government-issued identification card or has made a misrepresentation to the United States government;

(l) Has used multiple names to attempt to mislead or defraud; or

(m) Has engaged in any other conduct the court considers relevant to the risk of abduction.

(2) In the hearing on a petition under this article, the court shall consider any evidence that the respondent believed in good faith that the respondent's conduct was necessary to avoid imminent harm to the child or respondent and any other evidence that may be relevant to whether the respondent may be permitted to remove or retain the child.

C.R.S. § 14-13.5-107

L. 2007: Entire article added, p. 769, § 1, effective May 14.

OFFICIAL COMMENT

The list of risk factors constitutes a summary of the wide variety of types of behaviors and characteristics that researchers have found to be present. The risk factors are based on research that has been done during the last twelve years. Research also shows that abducting parents dismiss the value of the other parent in the child's life; have young children or children vulnerable to influence; and often have the support of their family and others. Parents who have made credible threats to abduct a child or have a history are particularly high risk especially when accompanied by other factors, such as quitting a job, selling a home, and moving assets. See Janet Johnston & Linda Girdner, Family Abductors: Descriptive Profiles and Preventative Interventions (U.S. Dep't of Justice, OJJDP 2001 NCJ 182788); ABA, Early Identification of Risk Factors for Parental Abduction (NCJ185026). The more of these factors that are present, the more likely the chance of an abduction. However, the mere presence of one or more of these factors does not mean that an abduction will occur just as the absence of these factors does not guarantee that no abduction will occur. Some conduct described in the factors can be done in conjunction with a relocation petition, which would negate an inference that the parent is planning to abduct the child.

International abductions pose more obstacles to return of a child than do abductions within the United States. Courts should consider evidence that the respondent was raised in another country and has family support there, has a legal right to work in a foreign country and has the ability to speak that foreign language. There are difficulties associated with securing return of children from countries that are not treaty partners under the Hague Convention on the Civil Aspects of Child Abduction or are not compliant with the Convention. Compliance Reports are available at the United States Department of State website or may be obtained by contacting the Office of Children's Issues in Department of State.

Courts should be particularly sensitive to the importance of preventive measures where there is an identified risk of a child being removed to countries that are guilty of human rights violations, including arranged marriages of children, child labor, lack of child abuse laws, female genital mutilation, sexual exploitation, any form of child slavery, torture, and the deprivation of liberty. These countries pose potentially serious obstacles to return of a child and pose the possibility of harm.

Courts need to be sensitive to domestic violence issues. Batterers often abduct their children before as well as during and after custody litigation. However, courts also need to be aware of the dynamics of domestic violence. Rather than a vindictive reason for taking the child, a victim fleeing domestic violence may be attempting to protect the victim and the child. Almost half of the parents in one parental kidnapping study were victims of domestic violence and half of the parents who were contemplating abducting their children were motivated by the perceived need to protect their child from physical, sexual, and emotional abuse. Geoffrey L. Greif & Rebecca L. Hegar, When Parents Kidnap: The Families Behind the Headlines 8 (1993). Some of the risk factors involve the same activities that might be undertaken by a victim of domestic violence who is trying to relocate or flee to escape violence. If the evidence shows that the parent preparing to leave is fleeing domestic violence, the court must consider that any order restricting departure or transferring custody may pose safety issues for the respondent and the child, and therefore, should be imposed only when the risk of abduction, the likely harm from the abduction, and the chances of recovery outweigh the risk of harm to the respondent and the child.

The Uniform Child Custody Jurisdiction and Enforcement Act recognizes that domestic violence victims should be considered. The Comment to Section 208 of the Uniform Child Custody Jurisdiction and Enforcement Act (Jurisdiction Declined by Reason of Conduct) [section 14-13-208,C.R.S.] states that "Domestic violence victims should not be charged with unjustifiable conduct for conduct that occurred in the process of fleeing domestic violence, even if their conduct is technically illegal. An inquiry must be made whether the flight was justified under the circumstances of the case."