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.
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.
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.
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.
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:
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:
There are a few defenses to a claim of wrongful removal or retention under the Hague Convention, which include:
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.
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.”
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:
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.