By Rebecca Vesely
Thursday, March 6, 2003
Children's advocates are praising a new law intended to lower the risk of international parental kidnappings. However, the itemized risk factors for illegal flight are also common among battered women preparing to leave their abusers.
SAN FRANCISCO (WOMENSENEWS)--A landmark California law meant to stop international parental kidnappings is under fire from domestic violence experts who say it puts battered immigrant women at a disadvantage in custody battles.
The Synclair/Cannon Child Abduction Prevention Act of 2002, which went into effect Jan. 1, requires California courts to consider flight-risk factors when granting custody to divorcing spouses. Risk factors include strongfamilial, emotional or cultural ties to another state or country, including foreign citizenship.
The law was heralded as a national model to help prevent the approximately 163,000 kidnappings by parents each year. Up to 15 percent of those children are taken out of the country and few return. Child advocates such as John Walsh of the TV show "America's Most Wanted," Mark Klaas, of The KlaasKids Foundation, the National Center for Missing and Exploited Children and women's groups including the California chapter of the National Organization for Women supported the measure.
But advocates for domestic violence victims say the law could inadvertently trap battered women--especially immigrants--in abusive relationships. In addition, they say, abusers could use the law to gain custody of their children.
"This law puts a presumption on parents that if they meet a certain number of risk factors they would be potential kidnappers, but these are factors that most immigrant battered women have," says Kavitha Sreeharsha, a staff attorney with the Asia Pacific Islander Legal Outreach in San Francisco, which represents battered women from Asia.
Warning signs of parental kidnappings that courts must consider under Synclair-Cannon include applying for passports, obtaining copies of school or medical records, terminating housing leases, liquidating assets and closing bank accounts.
Domestic violence counselors routinely advise battered women to get legal documents and finances in order before they flee their abusers. Non-legal residents need passports to apply for public assistance such as food stamps, a common scenario for immigrant women with children who leave their abusers.
Under Synclair-Cannon, other warning signs for kidnappings that California courts must consider in custody battles are having no strong ties to the state and no financial reason to stay in the state, such as being unemployed.
"It sets a precedent in the judge's mind that battered women are flight risks--that is what concerns us," says Beverly Upton, executive director of Partners Ending Domestic Abuse. Upton is now in the beginning stages of working with other members of the California Alliance against Domestic Violence to either amend the law or have it repealed.
Most troubling to legal experts is that if a parent has previously taken their child without the other parent's consent, that parent is considered a flight
risk--regardless of whether the fleeing parent reports the child's whereabouts to the state, as required by law. Now, battered women who have fled with their children to a shelter and then reported their whereabouts to the state would be considered potential kidnappers.
"This means that if you follow the rules, they could be used against you," says Laura Martinez-Mcintosh, a family law expert and staff attorney with Texas Rural Legal Aid, Inc.
The law is the brainchild of Larry Synclair, a father whose ex-wife fled from Fresno, Calif., to her home country of Russia with their son in 1999. Synclair has not seen his son since, despite help from the U.S. Embassy in Russia and repeated visits to the country. Synclair, a former NBC Radio reporter in Moscow, says that his ex-wife, Svetlana Synclair, is mentally unstable and has been physically and mentally abusive to him and his son. Synclair worked with California Assemblywoman Patricia Bates to pass the legislation. The law is also named for Shelby Nicole Cannon, a California girl who was taken by her mother to Ireland in 1998, in violation of a custody order.
"The last thing I would want to do is prevent anyone in an abusive relationship from getting help," Synclair says, adding that he would welcome changes to the law, provided the original intent remains the same. "People always forget that we have to think of what is in the best interest of the child."
Aren't battered immigrant women likely to flee the country with their children to escape an abuser? Domestic violence experts say no.
"After their children, the most important thing to them is their right to remain in the United States," Chiori Kaneko, staff attorney at the Legal Aid Foundation of Los Angeles, wrote in the Daily Journal, a legal publication. "These are the least likely candidates to leave the country with their children because they are afraid of not being able to return."
Rebecca Vesely is the West Coast bureau chief for Women's Enews.
California Alliance Against Domestic Violence:
Legal Aid Foundation of Los Angeles
"New Law Hurts Domestic Violence Victims":
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