May 7, 2020 by Robert Franklin, JD, Member, National Board of Directors
And here’s yet another case in which COVID-19 is being used as an excuse to interfere in a child’s relationship with a parent (New Zealand Herald, 4/29/20). Although most courts seem to understand that parenting time orders need to remain in effect and unchanged due to the virus, a few, alas, do not.
In the current case, a father’s ex-wife abducted their son to New Zealand. (The article gives no names and excludes the father’s country of residence.) It took the New Zealand courts an astonishing three years to come to a decision about the matter, during which time of course the child remained in New Zealand with the mother’s abduction tacitly endorsed by the legal system. The father’s country of residence is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, so he was unable to pursue the remedies it offers.
But the courts of his country ordered that he have sole custody of his son and, eventually, the New Zealand court agreed.
“The father has been granted custody of the boy and permission to return with his son to his country of residence and boy's birth country almost three years after the mother breached a court joint parenting order in 2017 and failed to return the boy back to his birth country during a visit to New Zealand…
The court found that if the mother was given full day-to-day care of the boy in New Zealand he was likely to lose any relationship with his father and be "further harmed by exposure to the mother's continued anxiety and distress".’
All that cost the father thousands of dollars and, given his visa restrictions in New Zealand, he can’t work. Nor does he have health coverage there. In short, the New Zealand court system has made his living conditions precarious and endangered his ability to care for his son while there.
"I have no medical coverage while I'm in New Zealand. How can anyone expect me to be here in a country during a crisis and looking after a young boy awarded to me by the New Zealand court... and literally I can hardly look after him."
If that’s not bad enough, due to the excuse of COVID-19, life for Dad is about to get worse.
“But while the father was in the process of planning his trip home, [the mother] put in an application to the Family Court raising safety concerns about the boy travelling overseas during a global pandemic.
Apparently, while Dad has had to spend his own money on legal fees, Mom has applied for hers to be paid by the government, i.e. she wants the New Zealand government to not only endorse her child abduction by allowing it to go on for over three years, but wants it to pay her costs of doing so as well. Amazing.
And of course, since she made the request, the court is spending still more time and Dad’s money to hold a hearing. Who knows how long that’ll take or how expensive it’ll be?
An urgent hearing has now been set to look at whether it is safe for the boy to travel overseas or whether further conditions need to be added.”
As usual, this case should have been resolved years ago. It seems to invariably be true that courts hearing abduction cases fail to see the obvious – that, apart from whatever other deficiencies the abducting parent may have, child abduction is child abuse. The abductor is an abuser.
Of course abductors always have their ready-made justification close at hand. The other parent is usually described as an abuser and courts generally make an inquiry into that claim. But what’s also true is that courts of countries to which a child is abducted have no more ability to decide those matters than the courts of the countries from which children are taken. (That’s assuming those countries of origin aren’t, say, Somalia, that is truly dysfunctional in many ways.) So the logical and fair thing would be to return the matter to the courts of the country from which the child was taken, a process that should take weeks, not years.
But I can’t recall a single abduction case in which that’s happened.
Children under the age of 17 are overwhelmingly safe from the COVID-19 virus. It is inexcusable for this New Zealand court to use the remote possibility of the boy’s contracting the illness to further extend the abuse to which his mother began subjecting him over three years ago.