The Law Office of Brian E. Sipe, LLC

In Katare v. Katare (No. 85591-9, Washington Supreme Court, August 16, 2012), deealt with the issue of racial profiling in the context of a child custody case.

Husband was born and raised in India and took employment in Washington State where he fathered two children with an American woman he had met and married in Florida. He was then offered employment in India for two years. His wife refused to move to India with the children. Wife claimed, along with two witnesses, that Husband threatened to take the children to India without her, but he denied making such threats. Based upon a custody evaluation, the Court ordered his passport be held during his unsupervised visitations and that he not have access to the children’s birth certificates or passports.

The Parenting Plan stated,

Based on the evidence, including the testimony of expert witnesses, the husband appears to present no serious threat of abducting the children. Nonetheless, under the circumstances of this case, given the ages of the children, the parties’ backgrounds, ties to their families and communities, and history of parenting, and the fact that India is not a signator to the Hague Convention on International Child Abduction, the consequences of such an abduction are so irreversible as to warrant limitations on the husband’s residential time with the children. The risk of abduction is a factor justifying limitations under RCW 26.09.191(3)(g).

The Court of Appeals then, on appeal, returned the case to the lower court in order to get more findings of evidence. The lower court changed its finding of “no serious threat” to a one of anger and a danger of abduction.

One piece of evidence that was entered in the record involved risk factors for abductions. The expert witness who testified was an attorney who had extensive experience in dealing with abductions. This evidence led to arguments at the appellate level by Husband based on the idea that it was racial profiling.

The Washington Supreme Court held that the lower court only needs to see that “a danger of damage exists.” In this case, the trial court found a danger of abduction even though the Husband had not done anything.

The Supreme Court also held that the expert testimony was acceptable in the context of child custody and the best interests of the children, saying,

…the risk factors considered by the trial court cannot conceivably be regarded as “racial profiling evidence.” The vast majority of the factors considered had nothing to do with race or national origin, including, (1) whether there has been a prior threat of abduction, (2) whether the parent has engaged in planning activities that could facilitate removal of the child from the jurisdiction, (3) whether the parent has engaged in domestic violence or abuse, (4) whether the parent has refused to cooperate with the other parent or the court, (5) whether the parent is paranoid delusional or sociopathic, (6) whether the parent believes abuse has occurred, (7) whether the parent feels alienated from the legal system, and (8) whether the parent has a financial reason to stay in the area. The only factor that could arguably implicate race or national origin is whether the parent has strong ties to another country. Yet, even this factor does not necessarily hinge on ethnicity and could apply to a range of circumstances. The factor is relevant merely to determine whether the parent in question could easily relocate.

This case shows the ways in which courts handle custody cases in which threats are made by a parent. An important factor in this case was the fact that India has not signed onto the Hague Convention on Child Abduction. Without this protection in place, the courts are concerned that a parent will have no way to get a child back from a parent who has abducted him or her.