Due to the global nature of today’s society, the reduced cost of international travel and the technological advances in communication, there are more international marriages today than ever before. Unfortunately, many of these marriages will end in divorce, which may result in increased child abductions and international child-custody litigation. This article provides an overview of the laws relating to international child abductions and international move-away cases.
International Child Custody and Abduction Laws
Oftentimes after parents separate or divorce, they have ongoing custody disputes. Some of the most difficult custody disputes involve one parent’s decision to wrongfully remove a child from his or her home country, or retain the child in a foreign country, without the other parent’s consent. In such cases, the parent that’s been left behind may be able to invoke the protections of the Hague Convention in order to help remedy the situation.
What is the Hague Convention?
In 1980, the United States enacted the Hague Convention on the Civil Aspects of International Child Abduction (also called the “Hague Convention”), which is an international treaty promulgated to respond to the problem of international child abduction. The Convention’s overall purpose is to deter international child abduction and provide a legal process for the prompt return of abducted children to their home countries, where the local courts can resolve custody disputes on their merits.
For more information on the Convention and the full text of the Civil Aspects of International Child Abduction, click here.
The Hague Convention applies only in “signatory nations” (nations that have adopted the Convention), so its remedies are available only when a child is wrongfully removed from a signatory country and retained in another signatory country.
For a complete list of signatory nations, check the U.S. Department of State’s website here.
What remedies are available under the Hague Convention?
The Convention doesn’t provide substantive custody rights, but instead deals primarily with the procedural aspects of judicial proceedings for the return of children to other signatory countries.
If there has been a violation of custody rights or a wrongful removal of a child to a foreign nation, a “petitioner” (the parent seeking to have the child returned) must file a local court custody action, and ask the local court to invoke the Hague Convention. The court must determine whether both countries are signatories to the Convention and which country has “jurisdiction” (meaning authority) to hear the dispute.
The Convention provides that signatory nations, their courts and administrative bodies should act quickly in all proceeding seeking the return of abducted children and ensure that a final decision is made within six weeks from the filing of the action.
In order for the court hearing the action to invoke the provisions of the Hague Convention, the parent/ petitioner must show that the child was a “habitual resident” in a signatory nation immediately before the action was filed, and that the child was “wrongfully” removed to or retained in a different signatory nation.
What is a “habitual resident?”
The Convention does not provide a specific definition of a “habitual resident,” but courts will generally look to the child’s ordinary residence before the allegedly wrongful removal took place. This will be a fact-based determination based on several factors, including:
- the shared intentions of the parents
- the history of the child’s locations and residences (where the child’s school, home and care giver(s) have been located), and
- the settled nature of the family prior to the facts giving rise to the action (prior to the removal or retention).
What is “wrongful removal or retention?”
Generally speaking, the removal or retention of a child by one of the joint custody holders without the other’s consent is “wrongful.” Under the Convention, the following circumstances constitute wrongful removal or retention:
- when the removal or retention of a child violates one parent’s (or guardian’s) custody rights under the laws of the state in which the child was a habitually resident before the removal or retention, and
- at the time of the removal or retention, those rights were actually exercised, or would have been exercised but for the removal or retention (these custody rights may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of habitual residence).
Are there any defenses to a claim of wrongful removal or retention of a child?
There are a few defenses to a claim of wrongful removal or retention under the Hague Convention, which include:
- that the petitioner (parent seeking the return of the child) was not “actually exercising custody rights at the time of the removal or retention” under Article 13
- that the petitioner “had consented to or acquiesced in the removal or retention” under Article 13
- that more than one year passed from the time of the wrongful removal or retention until the date the petitioner commenced a judicial or administrative proceeding for the return of the child, under Article 12
- that the child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the petitioner and that it is appropriate to heed that objection, under Article 13
- that “there is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” under Article 13(b), and
- that return of the child would subject the child to violation of basic human rights and fundamental freedoms, under Article 20.
If your child has been wrongfully removed to (or retained in) a foreign country, you should immediately contact a local attorney that is experienced in international custody disputes for help. You will need advice on how to institute a court action right away.
International Relocation or Move Away Cases
Often, parents will try to work out their custody disputes in court rather than resort to wrongful removal or retention. Divorced or separated parents that want to move their children out of the United States will have to file specific custody actions, commonly referred to as “international relocations” or “international move-away cases.”
How do courts determine whether to allow an international relocation?
In deciding whether to authorize a child’s relocation to a foreign country, U.S. courts will try to determine the best interests of the child, considering the same factors they normally consider in domestic move-away cases (these factors depend on the laws of state that has jurisdiction to hear the case). In addition, with international move-away cases, most state courts will also consider several additional factors, including:
- the cultural conditions and practices in the foreign country
- any potential visitation difficulties for the parent that gets left behind
- jurisdictional issues that may make the enforceability of the domestic custody and visitation orders problematic (meaning the extent to which the foreign country would enforce the left-behind parent’s visitation or rights to access the child), and
- whether or not the proposed foreign country is a signatory to the Hague convention (however, the fact that the proposed country is not a signatory does not automatically mean the request to relocate will be denied).
If you want to move your child out of the United States or your child’s other parent does, you should definitely contact an experienced custody attorney for advice on how to protect your parental rights.