I ran across this blog post by a New York-based international-family-law attorney, Jeremy Morley, discussing a mandamus petition now pending in the Texas Supreme Court.
The case is In re Sigmar, No. 08-1025 (DB). And it concerns a trial court order requiring supervised visitation for a parent with strong ties to Mexico, based on findings that there was a risk of child abduction.
The statute in play is Texas’s version of the Uniform Child Abduction Prevention Act, which Texas enacted in 2003. (( The online version of this uniform law shows that it was not finished until 2006. Texas seems to have adopted it before the language or official commentary was finalized. The “uniform” version of this statute does not break up the inquiry into a two-step process, as does the Texas statute. Instead, the “uniform” version lumps all of the factors together into one long list. Cf. the Texas statute §153.502(a), -(b), and -(c) with the uniform law §7. )) The key language is found in Texas Family Code §153.502 “Abduction Risk Factors”. In the Texas law, subpart (a) asks if the parent might have the intent or a motive to leave the country; if so, subpart (b) asks if the parent actually does have strong ties to another country, “particularly a country that is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction”; and subpart (c) suggests the court consider other factors that could complicate future court orders, including “(c)(4) whether the foreign country to which the parent has ties: (A) presents obstacles to the recovery and return of a child who is abducted to the country from the United States.” Other factors include whether the country: “(E) is a country for which the United States Department of State has issued a travel warning to United States citizens regarding travel to the country; [or] (H) is a party to and compliant with the Hague Convention on the Civil Aspects of International Child Abduction according to the most recent report on compliance issued by the United States Department of State.”
With regard to subpart (a), the trial court found evidence that the father had recently sold a significant asset in the United States, which is one of the six factors enumerated in that subpart. The father complained that no evidence supported the other five factors. The court of appeals held that evidence of a single factor could be enough; the statute, in its reading, permits a single factor to outweigh the others.
The court thus reached subparts (b) and (c), which ask in part about the laws and practices of the foreign country. Here, the trial court concluded that Mexico might not be compliant with a future child custody order, based in part on what the court of appeals later characterized as the “legislative facts” in the statute about which the trial court could take “judicial notice.”
In his blog post, Mr. Morley is critical of this aspect of the court of appeals’s reasoning. He suggests that the trial court gave too much weight to State Department reports without actually taking its own testimony about how compliant Mexico might be with a later child-custody order:
[O]ne wishes that the trial court had asked both sides to submit evidence on the issue, rather than simply relying on the State Departmentâ€™s conclusions. The State Department is not a judicial body and while its conclusions may be afforded great significance they are not the be-all and end-all when it comes to deciding whether a foreign judicial system is likely to return an abducted child promptly and effectively. Those decisions should be made by the courts after the submission of evidence for and against the proposition.
I’m not expert enough to know how to square that evidentiary criticism with the statute’s text, which (following the uniform act) seems to advise reliance on State Department reports for at least some of the factors. (( From a practical perspective, it’s also a little awkward to imagine each set of parents trying to marshall the sort of evidence and expert witnesses that might be needed to flesh out some of those subsidiary questions. )) At root, Mr. Morley’s unease with the court of appeals’s reasoning might be more about the way the court of appeals was weighing the competing factors. By giving what seems like dispositive weight to these “legislative facts,” the court of appeals treads close to establishing a bright-line rule. Combined with the court of appeals’s lenient reading of subpart (a) — holding that evidence of the father’s asset sale was enough — the court may be giving the statute a broader reach than was really intended. (Or perhaps not. I’m not offering my own view about the merits of this case.)
How courts should interpret this Texas statute does seem like an important question.
Given the number of custody disputes in Texas involving at least one parent with ties to Mexico, it’s also easy to see why this case might have drawn attention from the international-family-law community. It remains to be seen, however, if this mandamus petition is the vehicle that the Texas Supreme Court will choose to address some of these questions. The response to the petition has just been filed, and the Court will decide in the next few weeks whether to request full briefing.