International Child Custody Laws

International marriages are more common today than ever, thanks to affordable international travel, global careers, and technology that connects people across borders. When these marriages end in divorce, they can lead to complex international child custody disputes, including cases involving parental child abduction and requests to relocate a child abroad ("international move-away" cases).

Here's an overview of what happens in civil court when a parent wrongfully takes or keeps a child in another country and what courts consider when a parent asks to move a child out of the United States.

International Child Custody and Abduction Laws

Custody disputes often continue long after parents separate or divorce. Some of the most difficult custody disputes involve international child abduction—when one parent removes a child from their home country, or keeps the child in a foreign country, without the other parent's consent. In these cases, the parent who's been left behind may be able to use the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") to seek the child's return.

What Is the Hague Convention?

In 1988, the United States ratified the Hague Convention, an international treaty designed to establish procedures to handle 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.

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.

The U.S. Department of State maintains a list of U.S. Hague Convention Treaty Partners.

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. The Convention directs courts to act quickly and states that, as a benchmark, proceedings should ordinarily be decided within six weeks.

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 local court must determine whether both countries are signatories to the Convention and which country has “jurisdiction” (meaning authority) to hear the dispute. The Convention only applies to children younger than age 16.

For the court hearing the action to invoke the provisions of the Hague Convention, the 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 doesn't provide a specific definition of a habitual resident, but courts generally look to the child’s ordinary residence before the allegedly wrongful removal. 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 caregivers have been located), and
• the settled nature of the family prior to the facts giving rise to the action (before the removal or retention).

The U.S. Supreme Court has ruled that no single factor is required or controls—judges must weigh the totality of the circumstances. (Monasky v. Taglieri, 589 U.S. 68 (2020).)

What Is a Wrongful Removal or Retention?

Generally speaking, it's wrongful for one parent with joint custody to remove a child from their home country, or keep the child in another country, without the other parent's consent. Under the Convention, removal or retention is wrongful when both of these are true:

• the removal or retention violates the other parent's or guardian's custody rights under the law of the country where the child lived immediately before the removal or retention, and
• that parent was actually exercising those custody rights at the time, or would have been if the removal or retention hadn't happened.

These custody rights can come from a law, a court or agency decision, or an agreement that's legally binding in the child's home country.

Are Any Defenses Available to a Claim of Wrongful Removal or Retention of a Child?

A parent accused of wrongfully removing or retaining a child can raise several defenses under the Hague Convention:

• the other parent was not “actually exercising custody rights at the time of the removal or retention” (Article 13)
• the other parent consented to or later agreed to the removal or retention (Article 13)
• more than a year passed between the wrongful removal or retention and the start of the court case seeking the child's return, and the child has since become settled in their new home (Article 12)
• the child is old enough and mature enough to object to being returned and the court decides to honor the objection (Article 13)
• returning the child would create a grave risk of physical or psychological harm, or otherwise put the child in an intolerable situation (Article 13), and
• returning the child would violate their basic human rights and freedoms (Article 20).

If your child has been wrongfully removed to (or retained in) a foreign country, you should immediately contact a local attorney who is experienced in international custody disputes for help. You will need advice on how to start a court case quickly.

How Do Courts Decide Whether to Allow an International Relocation?

Often, parents will try to work out their custody disputes in court rather than resort to wrongful removal or retention. Custodial parents who want to move their child out of the state or country have to file specific custody actions.

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 the 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).

Getting Legal Help

If you're a parent facing (or considering) international relocation with your child, or you're the parent left behind, talk to a family law attorney with experience in international custody disputes before acting. The line between a lawful move and a federal crime often comes down to details that are easy to get wrong without legal advice.