With the rise of international interconnectedness, we are experiencing a rise in international marriages which more than often end in divorce. The child custody laws that apply domestically differ greatly and become more complex when a child is removed from their host country and/or retained in a country that is not their habitual residence.
San Diego Divorce Attorney understands the difficulties that arise when caught in between a divorce negotiation, let alone when a parent is relocating to a different country. We are here to provide the best representation and advice in any court of law within Southern California making sure our clients are guided throughout the whole experience to assure the most favorable outcome.
Before relocating with your child, it is essential to bring the case to a court of law within the child’s “habitual residence” (where they go to school, where their home is located, etc.), in order to proceed with a legal custody jurisdiction. If the child is relocated, the child abduction laws will prevent a parent from gaining any legal or practical advantages by taking the child outside the state or country parameters.
If the child remains within his or her habitual residence or has returned to the host state or country, please scroll down to “Types of Custody Orders”.
When a child is removed or retained in a different host state or country, one must file a petition under The Hague Convention on the Civil Aspects of International Child Abduction.
The Hague Convention
The Hague Convention is a multilateral treaty with 98 signatories in all parts of the world including most states in western and eastern Europe, and some countries within South America, Africa and the Middle East. The Hague Conference on Private International Law (HCCH) brought upon the creation of the Hague Convention treaty in order to provide an effective and efficient method to return a child to his or her own habitual residence.
The Convention states that a court must not engage in a child custody dispute when a Hague Convention action is filled. The Convention requires the immediate return of the child to his or her “habitual residence” and this process should be aided by any judicial and administrative bodies of the Contracting States. The bureaucratic bodies of the country where the child has been removed to must act quickly on the petition to return the child and must have reached a verdict within the span of six weeks by the beginning of the proceedings (Article 11 of The Hague Convention Treaty).
Wrongfully Removed or Retained
Wrongfully removed or retained is defined as a violation of law of custody rights. If a custody order has not taken place, both parents must look at their “habitual residence” law regarding legal child custody. The Hague Convention defines wrongful when:
- There is an infringement of custody accredited to a person, “under the law of the state in which the child was habitually resident” before the child was removed or confined in another place not considered his or her habitual residence (Article 3 of the Hague Convention Treaty).
- If at the time of removal or retention a parent was already given the rights or would have been given the rights of custody and of access under the law (Article 3 of The Hague Convention Treaty)
Overall, the relocation or confinement of a child by one of the parents without the prior consent of the other is considered wrongful, because it has disregarded the rights of the other parent which are also protected by law. Any person or institution or other body claiming that a child has been removed or retained may submit an appeal for return of the child to the Central Authority of the child’s habitual residence. The Central Authority must then act directly and without delay transmit the application and notify the requesting Central Authority.
Defenses Against The Hague Convention
There are ways to defend yourself if there is a claim of wrongful relocation or confinement, detailed in Articles 12, 13, and 20 of The Hague Convention Treaty. The defendant can claim:
- that more than a year has passed before the petitioner commenced a judicial proceeding for the return of the child (Article 12)
- that parent seeking the return of his or her child was not legally given custody rights of the child of his or her relocation or confinement (Article 13)
- that the child is age 16 or older with a high level of maturation to consciously oppose his or her return the parent seeking for his or her return (Article 13)
- that the parent removing the child had been provided consent prior to the relocation of the child (Article 13)
- that there is a great danger to the child's well-being if returned to the parent petitioning for the return of the child (Article 13)
- that returning the child would violate the child's civil liberties and freedoms
If your child is wrongfully removed or retained in another state or country that is not their habitual residence, you should instantly contact your experienced and competent attorney that is capable of battling international custody disputes.
To learn more about The Hague Convention on the Civil Aspects of International Child Abduction please visit: https://www.unicef.org/protection/hague_on_child_abduction.pdf
The UCCJEA: Uniform Child Custody Jurisdiction and Enforcement Act
In cases where The Hague Convention does not apply, we must look towards the child’s home state jurisdictional laws. The UCCJEA is a revision to the UCCJA which proved inconsistent with the Parental Kidnapping Prevention Act (PKPA). The UCCJEA and the Parental Kidnapping Prevention Act ensure that child custody disputes are resolved without abducting or removing a child from his habitual residence. In many cases, these acts prevent a parent from seeking other state courts willing to reverse unfavorable custody orders.
According to the UCCJEA and the PKPA, child custody can only be fought for in a court of law by either parent if and when the child is present in the court residing in their habitual residence or in a place where the child has settled for six successive months.
For example, a young child under the age of 16 has inhabited the state of California for four years. If his or her mother or father moves to Florida, and the child remains in California, then Florida will not have the right to determine the custody of the child. California, in this case, would be the only state that can lawfully act to decide on the custody dispute.
Types of Custody Orders
Once it is established which state can determine custody, we can begin looking at local custody jurisdiction and laws. In California, there are two types of child custody:
- Legal custody determines which parent (if not both) is allowed to make the critical life decisions for the child including the child’s healthcare, education, etc.
- Physical custody determines the parent (if not both) which will handle the living arrangements for the child.
Legal Custody is either “joint” or “sole”. Joint legal custody is where both parents share the rights and responsibilities to make the important decisions about the child's health care, education, etc. Though the parents share the responsibility to make important decisions upon the child, parents are not obligated to always. We recommend a high level of communication between parents in this situation in order avoid another visit to the court.
Physical custody like legal custody can also be “joint” or “sole”. Joint physical custody means that both parents must share the child between households. Sole or exclusive physical custody regulates that the child must live with the appointed parent while the other parent must follow the given visitation rights. On the other hand, joint or shared physical custody explains that parents have more freedom to choose the child’s living schedule.
In these cases, the child will typically live with one parent more than the other. In many cases, the judge can choose to give both parents legal custody, but will refrain from giving both parents physical custody. While both parents can make the important decision for their child, the child must live with the parent who was assigned the right to physical custody.
Types of Visitation Orders
Visitation is arranged for parents who have the children for less than half of the time. Visitation is a plan for how parents will share time with their children. Visitation orders vary depending on the circumstances of the separation, the best interests of the child, and other independent components.
The court can rule visitation as follows:
- Visitation according to a schedule: this type of visitation is where parents create a detailed visiting program which includes dates and times to assure parents avoid future conflicts
- Reasonable visitation: this type of order does not require a detailed visitation program. This order works when parents get along well and are open to letting their child visit each other at any time
- Supervised visitation: this type of visitation order requires a parent, another adult, or a professional agent to accompany the child when visiting the other parent
- No visitation: this type of visitation is ordered when it is too physically or emotionally harmful for the child to visit the other parent
To decide what visitation order to enact, the court will consider the following:
- The age of the child
- The well-being of the child
- The emotional relationship between both parents and their child
- The capability of either parent to care for the child emotionally and financially
- If relevant, any history of domestic violence
- And finally, the child's ties to school, home, and community
To learn more about visitation orders you can visit: http://www.courts.ca.gov/17975.htm
In California, courts do not automatically give the right to either parent (father or mother). The court must decide what is the best outcome for the child given the considerations above. In some cases, courts can choose to give custody to another legal agent if they deem both parents unable to provide and care for the child.
In most cases, both parents will seek to work out their disagreement in a lawful court rather than wrongfully removing a child to another country or state. Parents who wish to remove their child out of the United States or California, will need to file a specific custody claim that approaches international relocation laws.
For these cases, a court will consider many factors including:
- The cultural conditions abroad
- If it conflicts with a visitation order
- If the foreign country would enforce their own visitation rights and limit the rights of the parent with visitation rights
- If the country is a signatory of The Hague Convention
The domestic custody and visitation laws are complicated when parents inhabit the same state or region. For international matters, to secure a favorable outcome, you must contact an experienced attorney with the knowledge and capability to defend your lawful rights.
International Child Custody is a very serious and complicated matter which is why we employ the best attorneys ready to ensure your rights are not violated. To learn more about your rights to custody and visitation, contact San Diego Divorce Attorney at 858-529-5150 or visit us at www.SanDiego-DivorceAttorney.com.