International Child Custody Issues

International Child Custody Issues

Given that our firm handles immigration matters as well as family law, many visitors to this site may be foreign nationals.  Many have children.  Some of those children have dual citizenship.  There is much to be known about how divorce law and custody rules are influenced by international law.  Rules were established back in the 1980s through the Hague Convention, particularly in situations of international kidnapping by one parent.  This article attempts to make those rules easier to understand how the Hague Convention Rules may or may not apply to your situation.

First, a little background:  For a long period of time, many parents struggled with the frustration of having custody orders that were not recognized in other countries. If one parent, who was a foreign national, decided to take their child to the country of their birth and then decide not to return to the United States, there was little the parent left behind in the US could do about it. Even despite the most stringent orders, many parents faced the frustrating and frightening experience of their children being kidnapped by an ex-spouse. Such a situation becomes even more dismaying when that spouse takes the child out of the country, creating a judicial nightmare in securing the child’s return.To address the rising number of international child abductions, several countries united together and signed a treaty known as The Hague Convention on the Civil Aspects of International Child Abduction

The Hague Convention basically provides a venue for one parent to solicit the return of their child when the child has been wrongfully taken out of the country. Under this treaty, each “contracting state” has set up a Central Authority (or command post) that acts as the contact point for other countries seeking relief. Once an application has been made from the child’s home country (usually by the complaining parent), the Central Authority in the suspected country must do everything in its power to determine the whereabouts of the child and secure his or her voluntary return.

This treaty can be invoked even if there is no custody order in effect. A cause of action may be brought as long as:

  • 1. The petitioning parent had custody of the child (sole or joint) either by a custody order or operation of the law. This means that the petitioning parent had been acting in a custodial manner or that custody was assumed and agreed to in practice;
  • 2. The child was habitually a resident of the country from where he was abducted; and
  • 3. At the time of the wrongful removal, the petitioning parent was exercising his or her custodial rights.

The Hague Convention only works when both the residence country and the country to which the child was taken have agreed to the treaty. It cannot be used on children that are 16 years of age or older.

 

This treaty is not designed to settle custody disputes but rather to keep the dispute in the residence country, where both parents have an opportunity to exercise their custodial rights.

The Hague Convention was drafted with the intent to remove forever the incentive for a parent to flee across borders to obtain a favorable custody order.  Under the Convention, a child is to be quickly returned to his or her state of habitual residence “so that a court there can examine the merits of the custody dispute and award custody in the child’s best interests.” Pub.Notice 957, 51 Fed.Reg. at 10505.

As such, the Hague Convention does not provide any substantive rights and does not allow the court before which a Hague Convention action is filed to consider the merits of any underlying child custody claims. Instead, it only establishes a procedure in those countries that have adopted it by which the return of children under the age of sixteen years may be accomplished if the removal or retention of those children is determined to be “wrongful” under the Convention.

Every family dispute has its own unique set of facts and there are situations in which such an abduction may be justified and the return of a child may be denied. An attorney familiar with the rules of the Hague convention will be able to explain these rules to you and determine if your situation justifies the filing of an action under the Hague Convention.

Our office handles such cases in which one parent has removed the child from the United States (for example, to India) without permission or against the will of the other parent or spouse left behind.  We have been successful in getting favorable Court orders for the petitioning parents and therefore successfully bringing the child(ren) back to the United States.

We handle Child Custody cases in Superior Courts of Alameda County, Santa Clara County, Contra Costa County, San Joaquin County & Stanislaus County.