A recent New Jersey family court opinion, Nahar v. Salgia, mirrors the debate that occurs between international parents in custody litigation in the United States all the time. The father accused the mother of being a risk of abducting their two children to India, and he sought a writ of ne exeat, which would prohibit her from traveling internationally with the 2 children (both age 11 at the time of the most recent iteration of their custody case). Their history is long and storied, including litigation in NJ and India, and an alleged abduction of the children some six years ago, where father claimed the mother kept the children in India unilaterally, and mom claimed the children were sick, with at least one being hospitalized. Shortly thereafter, the mother moved to India and left the children in the father’s custody in NJ, before she returned and obtained U.S. citizenship. There were a variety of custody orders. It came to a head yet again in this litigation where the mother sought to take the two children to India for a family wedding. At the time, there was a custody order that prohibited her from traveling internationally with the children. The father sought to enforce the prohibition (and he was successful). At trial, however, the court, sua sponte, raised the potential to prohibit the father from also traveling internationally with the children. The court put in place such a mutual ban. The father appealed.
The appellate court found that the family court, in denying the mother’s request to travel internationally with the children, impermissibly reopened the parties’ prior order, which expressly permitted the father’s international travel with the children. The court did this without any request by the mother or evidence that would indicate such a modification was appropriate or warranted. Therefore, the court was wrong to have re-opened the parents’ prior agreement, where the mother specifically agreed to the father’s international travel with the children, in order to ban the father’s future international travel with the children.
This case is a great opportunity to remind everyone of a few resources (among many) that relate specifically to the issue of abduction prevention. The first is the ICAPRA report, issued by the U.S. Department of State each spring that includes a “naughty” list of countries who do not return children. India is routinely on this list, and was again in 2020. The second is the Uniform Law Commission’s Uniform Child Abduction Prevention Act which, despite not being law in New Jersey, is enacted in more than a dozen U.S. states and provides a wonderful laundry list of red flags that could indicate a parent is more of a risk to abducting his or her child. Please feel free to reach out if you feel one of your cases may have a need for guidance in preventing a potential child abduction.