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Foreign Travel Restrictions in Parenting Plans

Posted Friday, August 24, 2012 by John S. Palmer

The Washington Supreme Court has held that a trial court may admit expert testimony regarding the “risk factors” for child abduction in child custody cases. The court also found that considering such “risk factor” evidence and imposing reasonable travel restrictions in a parenting plan does not violate a parent’s constitutional rights.


The trial court had imposed travel restrictions in a parenting plan based on evidence that the father had threatened to abscond with his children to India. The father denied making such threats, and appealed.

The father, Brajesh Katare, was born and raised in India. He and Lynette Katare were married in 1989; they had two children before Lynette filed for divorce in 2002. The children are currently 12 and 10.

Trial Court and Prior Appeals

While the divorce was pending, a parenting evaluator noted that two witnesses corroborated Lynette’s claim that Brajesh had threatened to take the children to India. Lynette also asserted that his request for the children’s passports and immunization records was additional evidence of his ill intent.

The trial judge stated that she was not convinced Brajesh posed a serious threat of abducting the children, but nonetheless ruled that he could not take the children out of the U.S. due to the “incredibly serious” consequences if he did. This was an apparent reference to fact that getting the children back from India could be difficult because it is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which provides recourse for an aggrieved parent in situations where both countries are signatories.

Brajesh appealed this ruling, and the Court of Appeals held that such restrictions can be included in a parenting plan only if the court makes express findings that they are in the best interests of the children. The case was remanded to the trial court to clarify the basis for the foreign travel restrictions.

On remand the trial judge again held that “the husband appears to present no serious threat of abducting the children” but found that the “the consequences of such an abduction are so irreversible as to warrant” the travel restrictions. Brajesh appealed and the Court of Appeals again remanded for clarification.

The trial court then held a two-day hearing to address whether the evidence supported the foreign travel restrictions. It was at this stage of the proceedings that an expert witness testified on Lynette’s behalf regarding the “risk factors” of abduction. The court allowed Michael C. Berry, an attorney with 17 years of experience in child abduction cases, to testify that the risk factors for child abduction include:

At the conclusion of the hearing, the trial court eliminated its prior finding that Brajesh appeared to pose no serious threat of abducting the children, and instead found that his “extreme anger, abuse, unreasonableness and poor judgment” meant that “the risk of abduction had not abated.” Based on this finding, the trial court concluded the travel restrictions were in the children’s best interest.

Brajesh appealed; the Court of Appeals upheld the travel restrictions and ruled that the expert testimony should not have been admitted but was harmless error because the trial judge did not rely upon it in making her ruling. Brajesh appealed that ruling, and the Supreme Court accepted the case.

The Supreme Court Decision

In a 6-3 decision, the Supreme Court upheld the travel restrictions and the use of expert testimony regarding the “risk factors” for abduction.

The majority noted that a trial court has broad discretion in creating a parenting plan, but must be guided by factors contained in RCW 26.09.191(3); subsection (g) of that statute allows a court to include restrictions if it finds a parent’s conduct to be “adverse to the best interests of the child.” Turning to Brajesh’s arguments, the majority rejected his claim that the “risk” of abduction is insufficient to impose travel restrictions and stated that a trial court need not wait for actual harm to occur before imposing such restrictions. The court also found that there was substantial evidence to justify the travel restrictions. (The 3-justice minority disagreed, noting that any threats to abscond with the children had occurred years ago, in the heated early stages of divorce; Brajesh had shown great respect for the court’s orders; and the trial court improperly focused on the consequences of abduction rather than whether there was any actual risk. The minority also cited evidence that Indian courts may return abducted children to the U.S. in a very short period of time, and therefore found that the anecdotal evidence regarding the difficulty of retrieving the children from India was insufficient to justify the restrictions.)

Regarding the use of expert testimony, the majority stated that when considering parenting plan restrictions, the trial court must engage in a form of risk assessment and the admission of expert testimony regarding the “risk factors” for abduction is admissible for that purpose. (The minority opinion stated that “risk factor” evidence should be admitted on a more limited basis and should have been excluded here.)

Turning to Brajesh’s constitutional claims, the majority said “risk factor” evidence is not equivalent to racial profiling, as most of the risk factors do not involve race or nationality. It rejected Brajesh’s claim of a “fundamental right to travel abroad with his children” (noting that the U.S. Supreme Court has held that while interstate travel is a fundamental right under the U.S. Constitution, limits on international travel are permissible). Brajesh also claimed the restrictions interfered with his “fundamental right to parent his children without state interference” but the majority stated the court has “long recognized a parent’s right to raise his or her children may be limited in dissolution proceedings because the competing fundamental rights of both parents and the best interests of the child must also be considered.”


This case will have a profound impact on Washington parents who are subject to a parenting plan and want to be able to freely take their children to visit their country of origin.

One indication of the case’s importance to immigrant parents is the fact that the Asian Bar Association of Washington, the Fred T. Korematsu Center for Law and Equality (a non-profit organization based at Seattle University School of Law), the Vietnamese American Bar Association of Washington, the Pacific Northwest District of the Japanese American Citizens League, and the American Civil Liberties Union all appeared as amici curiae and filed briefs in support of the father.

In re Marriage of Katare, Case no. 85591-9, decided August 16, 2012

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