In mandamus proceeding seeking to set aside restrictions on parent's access to child, Court of Appeals of Texas interprets and applies Texas law against international parental abduction, using Uniform Child Abduction Prevention Act as interpretation aid
Axel Michael Sigmar is involved in several international legal disputes, and frequently travels to Mexico. Apparently he received threats, and equipped himself with a concealed handgun. In the midst of this turmoil, he and his wife Lucia divorced with identical visitation rights for their daughter A.J. Lucia subsequently moved for a modification of the divorce decree, also requesting that Sigmar have only supervised access to the child, and that he temporarily not dispose of any assets. The Judge Barbara Hale found that Sigmar posed a threat of international abduction, and ordered that he only have supervised visits with A.J. The Judge also ordered that he not sell any assets until an evidentiary hearing in the modification matter.
Sigmar is now seeking a writ of mandamus to compel the Judge to set aside the restrictions.
The Court of Appeals of Texas agrees with the Judge. In general, mandamus relief is available only to correct a clear abuse of discretion when there is no adequate remedy by appeal. Here, because temporary orders in child custody disputes are not subject to interlocutory appeal, mandamus is a possible remedy.
As for the restrictions on Sigmar's access to A.J., the Court notes that Texas was the first state to implement laws against international parental abduction. See Tex. Fam. Code Ann. §§ 153.501 .503. In interpreting the Texas law, the Court refers to materials about the Uniform Child Abduction Prevention Act which resembles the Texas law.
Section 153.503 permits the trial court to impose abduction prevention measures if there is a "potential risk" of international abduction. The court should consider the obstacles to finding and returning a child from a foreign country, and the harm to the child if he/she is abducted to a foreign country. In particular:
"Section 153.502 provides statutory "abduction risk factors' for a court to consider in determining whether there is a potential risk of international abduction. See TEX. FAM. CODE ANN. § 153.502 (Vernon Supp. 2008). Subsection (a) provides a list of six preliminary factors the court "shall consider,' including whether the parent: (1) "has taken, enticed away, kept, withheld, or concealed' the child; (2) has threatened to do so; (3) "lacks financial reason to stay in the United States'; (4) "has recently engaged in planning activities that could facilitate the removal of the child from the United States'; (5) "has a history of domestic violence'; or (6) "has a criminal history or a history of violating court orders.' Id. § 153.502(a) ..."
"If upon consideration of the factors in subsection (a) the court finds "credible evidence of a risk of abduction,' "the court shall also consider':"
"(1) whether the parent has strong familial, emotional, or cultural 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"
"(2) whether the parent lacks strong ties to the United States, regardless of whether the parent is a citizen or permanent resident of the United States."
"TEX. FAM. CODE ANN. § 153.502(b) ... "
"In addition, if the court finds "credible evidence of a risk of abduction' under subsection (a), "the court may also consider': (1) "whether the parent is undergoing a change in status with the United States Immigration and Naturalization Service that would adversely affect that parent's ability to legally remain in the United States'; (2) whether INS has denied the parent's application for citizenship; (3) whether the parent has forged or presented misleading or false evidence to obtain a visa, passport, or other identification card or has made any misrepresentation to the federal government; or (4) whether the foreign country to which the parent has ties presents legal or practical obstacles to the recovery and return of a child who is abducted to that country or poses a risk of harm to the child.8 TEX. FAM. CODE ANN. § 153.502(c) ..." [Slip op. 3]
Here, the Judge found that Sigmar had strong ties to Mexico and Austria, and was liquidating U.S. assets. According to the Judge's findings, both of those countries lack effective mechanisms for the enforcement of the child custody order. Also, the U.S. Department of State has issued a travel warning for Mexico.
"... [A]n affirmative finding on only one of these preliminary factors (if supported by the evidence) is all that is required to proceed to a consideration of the additional factors listed in subsections (b) and (c)."
"To begin with, the statute states that "the court shall consider evidence' relevant to the six factors. Id. § 153.502(a) ... The statute does not specify the number of factors on which a court must make an affirmative finding. ... In addition, the statute lists these factors in the disjunctive."
"The comment to section 7 of the UCAPA suggests that no particular quantum of risk factors is required."
"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."
"UNIF. CHILD ABUSE PREVENTION ACT § 7 cmt., 9 Part IA U.L.A. at 42."
"For these reasons, we hold that evidence sufficient to support an affirmative finding on only one of the six preliminary factors may constitute "credible evidence of a risk of abduction' sufficient for a court to consider the additional factors listed in subsections (b) and (c)." [Slip op. 4]
Applying this to the case at bar, the Court agrees with the Judge that Sigmar's recent sale of an office building in Austin, and his insistence that A.J.'s passport be renewed, could facilitate A.J.'s removal from the U.S. Such events are credible evidence of a risk of abduction. Furthermore, Sigmar has ties to both Austria and Mexico. As for subsection (c) concerning the obstacles and risks which may be posed if Sigmar were to abduct A.J., the Court holds that such matters are legislative facts under Tex. R. Evid. 201(a), and a court may take judicial notice of them.
" ... [W]e hold that facts regarding another country's compliance with the Hague Convention on the Civil Aspects of International Child Abduction, or whether that country poses obstacles to the prompt return of a child taken there or poses risks to the child's safety are legislative facts about which a trial or appellate court may take judicial notice without prompting by the parties.16 See [1 STEVEN GOODE ET AL., GUIDE TO THE TEXAS RULES OF EVIDENCE] § 201.2 (with regard to judicial notice of legislative facts, a court "may employ whatever facts [it] reasonably believe[s], without any requirements of indisputability or of opportunity of parties to be heard concerning such beliefs') ..." [Slip op. 5]
Here, the travel warnings provided by the U.S. Department of State supports the Judge's finding under subsection (c). The Court concludes that the evidence, and the information of which it has taken judicial notice, support the Judge's finding of potential risk of international abduction.
After making further findings that the restrictions are consistent with the public policy of Texas and the best interest of the child, the Court finds that the Judge did not abuse her discretion in requiring supervised visitation.
Citation: In Re Axel Michael Sigmar, No. 10 08 00328 CV (Court of Appeals of Texas, Tenth District, November 5, 2008).
USA visa and immigration information is available at www.immigrationtelevision.com.
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