Child custody issues can be among the most difficult to resolve in the courtroom. When they happen in international settings, child custody battles can become much more emotionally charged and contentious than they already are. Although federal and state laws in the US govern most child custody disputes, it often needs to be clarified which jurisdiction has authority over international custody disputes and, thus, what laws will apply.
How to Get Around International Law Hurdles in Your Child Custody Case
As the global society has become increasingly interconnected, many families and marriages now traverse international borders. However, when parents in international marriages divorce, one could choose to move elsewhere to start again. This could imply that parents could move to other countries, probably their countries of origin. How does this affect the custody battles and the young ones involved? Since every custody case is unique, there needs to be a method for knowing for sure at the start of the proceedings.
An international custody dispute can leave you feeling alone and vulnerable. You should first hire a legal representative with knowledge of child custody and international family laws. Because of the complexities involved, your international family law lawyer must be familiar with the many state, federal, and international laws governing child custody.
International Relocation of Children and Custody Rulings
To legally move your child to another country, you will need to prove that doing so is in the child's best interest. Your international divorce attorney can assist you in gathering evidence to present before the court, proving that moving (or staying there) will be helpful to your child.
The judge will take into account a number of the same elements that are involved in domestic relocations, including which partner the child is closest to if they have lived in one place for a long time and the way the child views the future move (assuming they can air their opinions).
The court will also need to consider certain factors, including:
- How does the child's suggested new country of residency differ from their present one in terms of cultural traditions?
- Any disparities between the proposed country and the present one in terms of the child's access to fundamental needs, including sanitization, medication, and any other necessities
- Any obstacles that the non-custodial partner could face during visits
- Whether or not the domestic custodial arrangement can be enforced in the other country due to jurisdictional concerns (that is, whether or not the foreign courts will honor the agreement)
- If the prospective new country of residence is a Hague convention signatory, a major international agreement that allows courts within that country to handle custody issues
The courts will make a final decision premised on an intricate mix of each of the mentioned aspects, so you will need an experienced international family lawyer to assist you in getting a favorable outcome for the case.
International Abductions by Parents
International child abduction occurs when one parent removes a child from the country without the other parent's consent or the court's. Lawyers and courts mainly rely on the Hague convention to determine international kidnapping cases.
The Hague Convention
The Hague Convention on the Civil Aspects of International Child Abduction, generally known as the "Hague Convention," was adopted by the US in 1980 as a response to the issues of child abduction internationally.
The overall goal of the Convention is to prevent international abduction and to establish a legal procedure for the swift return of children who have been abducted to their native countries, where legal authorities can decide custody cases on an individual basis.
The Hague Convention only applies to the signatory countries (countries that have ratified the Convention); hence its solutions are only accessible when children are unjustly taken from one signatory nation and held in another.
What Kinds of Remedies Does the Hague Convention Offer?
The Convention does not give substantive custodial rights; instead, it focuses mainly on the administrative features of legal actions for repatriating children to other member nations.
If a parent's custody rights have been violated or a child has been taken to a foreign country without consent, the parent who wants the child back must submit a custody case in a local court and ask them to use the Hague Convention.
If both nations are signatories, then the court must decide which nation has "jurisdiction" (in other words, authority) to resolve the issue.
According to the Convention, signatory countries, their courts, as well as administrative agencies must move swiftly in all cases involving returning the children who had been abducted and make sure that a judgment is reached within 6 weeks of submitting the action.
The parent or petitioner needs to prove that the child or children were "habitual residents" of a signatory country immediately before filing the case and demonstrate that they were "wrongfully" taken to or held in another signatory country for the court overseeing the action to apply the Hague Convention.
Who Qualifies As a "Habitual Resident"?
The term "habitual resident" is not defined under the Convention specifically, although courts would typically consider the child's usual residence prior to the purportedly unlawful removal. This decision will be predicated on the facts and take into account some variables, such as:
- The parents' shared intentions
- The past locations and dwellings of the child (including their school, residence, and caregiver(s), if any)
- The established structure of their family before the events leading to the event (before the retention or removal)
What is Retention or Wrongful Removal?
Generally, it is considered "wrongful" when one shared custody holder takes a child away or keeps them with them without the other partner's approval. According to the Convention, improper retention or removal occurs when one of the following scenarios occurs:
- When a child's retention or removal infringes one partner's (or the guardian's) custodial rights as per the state laws where the child previously resided regularly, and
- These rights were indeed employed when the retention or removal was carried out, or they would have been used if the removal or retention had been carried out
Establishing Which Nation's Laws Should Take Effect
In contrast to the US, where a child's native state typically has authority over custody disputes, foreign nations are not obligated to follow American law. Furthermore, any custody judgment that has already been made in the US could be disregarded by a foreign jurisdiction.
It could be challenging to decide which nation should have authority over a lawsuit to establish a child's custody when the child regularly lives with their parents, and they do not live in the same nation.
The parent intending to move the matter will probably have to submit a case in the court of first instance when a parent in a different nation has initiated a child custody suit. At the same time, the other party does not think it's the appropriate setting for the case.
The outcome of any effort to move a custody matter will purely rely on the nation's legislation as well as the court ruling on the case, which will differ substantially based on which nation is involved.
Recourse When a Child is Inadvertently Moved to a Foreign Nation
The Hague Convention could help a parent bring their child back when they believe they have been unjustly abducted and moved to another nation. However, because it only applies to nations that have ratified the agreement, the Hague Convention has limited effectiveness.
It's also crucial to remember that the Convention doesn't permit the change of custody arrangements; instead, it simply states that any abducted child taken to a foreign nation should be sent back to their home nation.
The parent should petition the court for permission to use the Hague Convention to benefit from it. A hearing could be convened if the nation where the minor has been taken is a signatory convention member.
If it is determined at the hearing that the minor was wrongfully removed from the nation in which the appeal was submitted and that the child in question was a habitual resident of that country, then the minor would be returned to that country within 6 weeks. In determining whether or not a minor is a "habitual resident," the court looks at several elements, such as where the minor has resided in the past and the interests of the child's parents.
The Hague Convention provides some protections against claims of unlawful child removal, although these defenses are limited. Possible defenses include the fact that the minor's other parent permitted the removal, that more than a year has gone by since the child's removal, that the minor is of legal age and refuses to return home, and that the minor was in imminent danger if they returned.
How You Can Defend Yourself Against a Claim of Wrongfully Removing or Retaining a Child
If you've been wrongfully accused of moving or retaining a child, you can argue your case using one of the following Hague Convention's defenses:
- That the parent asking to have their child returned was not "actively pursuing custodial rights at the time of the retention or removal," as required by Article 13
- That you had, as per Article 13, "acquiesced in or consented to the retention or removal"
- More than a year has passed since the wrongful retention or removal occurred, and the petitioner has initiated administrative or judicial proceedings for the child's return, as required by Article 12
- That the minor is old and mature enough to refuse to be sent to the petitioner consciously and that it's reasonable to consider that objection according to Article 13
- Article 13b requires that "there's great danger that the minor's return would subject him or her to psychological or physical harm or it would place the minor in an unacceptable condition"
- That the child's fundamental freedoms and human rights would be violated if they were returned, as required by Article 20
If your loved one has been wrongfully transported to (or held in) a foreign nation, you should seek quick assistance from a legal professional familiar with international custody disputes. You'll need legal counsel to figure out how to take legal action.
The inability of Foreign Jurisdictions to Acknowledge U.S. Court Orders
Noncompliance to court rulings by the other parent is another major challenge in international custody issues. Unfortunately, most countries won't enforce U.S. custody orders against non-compliant parents.
As an illustration, a United States court could mandate that a father pays $4,000 per month for child support or grant the custodial mother rights to establish residency. However, the foreign court can claim it has the power of judicial review and decline to execute the U.S. court's ruling.
That's why it's a good idea to have legal counsel in both jurisdictions, at least temporarily. The foreign lawyer can advise you on handling custody matters under foreign legislation. In addition, they can walk you through the steps necessary to have the Convention treaty enforced in your case and discuss how to get your child back.
International Move Away or Relocation Cases
Parents at odds over child custody are more likely to try to settle their differences in court than to resort to illegally taking or keeping their children. International relocations, also known as international move-away proceedings, are specific custody actions filed by divorced or separated parents who wish to relocate their children outside the United States.
How Courts Decide Whether to Authorize an International Relocation
U.S. courts apply the same standards in domestic move-away cases when assessing whether to approve a child's relocation overseas. These elements depend on the provisions of the state that has legal jurisdiction to solve the case. In addition, most courts will additionally take into account several additional factors in the circumstances involving an international move-away, such as:
- The norms and cultural practices of the foreign nation
- Any potential issues with visitation for the parent who stays behind
- Whether or not the selected foreign country is a member of the Hague convention. However, the fact that the selected country is not a signatory/member doesn't automatically imply that the request to relocate will be denied
- Any jurisdictional concerns that could make the execution of the visitation orders and domestic custody problematic. This indicates the level to which the foreign nation would pursue the left-behind parent's visits or rights to get in touch with the minor
For guidance on safeguarding your parental rights, speak with an expert custody lawyer if you or your child's other parent intends to relocate outside the country.
Pointers for Parents Dealing With International Custody Cases
Below are some tips that can help you if you’re dealing with international custody cases.
Take Action Immediately
Before relocating your children abroad or if you have concerns that your partner is planning to abduct your child and move them to another country, consult a family law counsel.
File First
In most cases, an attorney could recommend that you seek custody first and, if possible, do so in the nation where they intend to raise their children. It's often quicker and cleaner to obtain jurisdiction this way, and you'll have greater control over the timeline and procedure.
You could need to initiate a lawsuit in that nation if the other parent has relocated the kids there while it isn't a signatory to the Convention.
Keep Your Child Where You Want Them to Live
If you're worried about international custody disputes, moving your child to another nation—even for a bit of vacation—could jeopardize your preferred jurisdiction.
Check to See If the Other Nation Is a Signatory To the Convention
You can access a complete list of all the countries that have signed on to the Convention and see exactly what provisions each one has promised to uphold. Compare custody rules in the two countries to determine which ones are better for your situation. If you and your child have dual citizenship, you could find that the laws of one jurisdiction are preferable to those of another. Consult legal counsel in both jurisdictions to help you determine your best course of action.
Contact the US Consulate or Embassy For Assistance
The consulate or embassy in your destination country can recommend a local attorney if you are in legal trouble abroad.
Plan Your Vacation and Visitation Once the Issues are Settled
When both parents are on board with foreign joint custody, it is usually recommended to accommodate the other parent's request for more makeup time. As it is unlikely that a child will be able to go to school in both jurisdictions while still having frequent visits, such as once a week or once a month, it will be necessary to make up for lost school time by giving each parent more time with the minor over the holidays, summer, fall break and spring break.
Additionally, suppose they have the financial means. In that case, attorneys often advise that the parent who decided to relocate cover the travel costs and be in charge of returning home with the child who can't (or shouldn't) travel alone.
Contact a Professional Family Law Attorney Near Me
Child custody and divorce cases involving people from different countries can get complicated quickly. If you are facing child custody problems in your divorce, you can contact the San Diego Divorce Attorney. We are a California family law firm that serves the city of San Diego. Call us today at 858-529-5150.
