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International Child Custody

Child custody is never a simple situation. Custody cases can be emotional and heated battles and can take their toll on all parties involved, especially children. Add in international or interstate relocation and you have a recipe for disaster.

When two people divorce, many times one person will have (or want) to move to re-establish their lives and start fresh. In many cases, this means a move out of state or to a different country. This can be difficult for both parties involved both emotionally and logistically.

Determining when and how a child will visit a parent is difficult enough without having to worry about travel to a different state or country. Sometimes, the emotional stress caused by these types of cases is too much for the parent, leading to the abduction of a child, either intentionally or unintentionally.

Because of this, laws have been developed to facilitate the quick resolution of custody disputes and, if necessary, the return of children to the rightful custodial parent. Familiarizing yourself with these laws can help prevent any unnecessary emotional stress as you navigate your own custody case.

Types of Custody and the Child Custody Laws

There are several types of child custody. International and interstate laws apply to all types and include:

  • Joint Legal Custody – both parents are equally responsible for making decisions about the child’s health, religion, education, travel and living arrangements.
  • Joint Physical Custody – the child lives with each parent for a predetermined amount of time
  • Supervised Visitation – a neutral party must be present during visitation hours
  • Sole Legal Custody – one parent only is responsible for the child’s upbringing
  • Sole Physical Custody – the majority of the time the child lives with one parent
  • Grandparent Visitation Rights – most countries have laws that allow grandparents to continue their relationships with the children

The type of custody agreement you have with the other parent will change how the international and interstate laws apply to your case and will affect everything from child support and alimony to visitation rights and schedules.

There are two laws that govern these types of custody disputes:

  • The Hague Convention on the Civil Aspects of International Child Abduction (most commonly called The Hague Convention)
  • The Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA

In most cases, these two laws work in tandem to ensure the safety and well-being of the child so it’s important to understand both of them.

The Hague Convention

Enacted in 1980, the Hague Convention is an international treaty that allows parents to use a legal process to return a child to their “habitual residence” after “wrongful removal or retention.”

The Hague Convention is not definitive when it comes to what constitutes a habitual residence. But the courts typically consider this the place where the child normally lives with the custodial parent. The convention does give the courts a basis for this determination:

  • The history of the child’s residence including where they go to school and where they live as well as where the primary parent or caregiver resides.
  • The contents of the custody agreement between the parents prior to the “wrongful removal or retention” of the child.
  • The parents’ shared intentions for the child.

“Wrongful removal or retention” of a child is clearly defined in the Hague Convention. Wrongful removal is defined as taking the child out of state or country without the consent of the custodial parent. Wrongful retention is defined as taking the child with consent but not returning them to the custodial parent. A good example of this would be taking the child for normal visitation hours, but not returning them as specified in the custody agreement.

The Convention further states that:

  • The removal or retention of a child violates one parent’s custody rights which are subject to the laws of the child’s home state prior to the incident.
  • The rights of the custodial parent that have been violated would have been exercised or were being exercised at the time the incident took place.
     

The law was designed to make sure children would be promptly returned to the country of their “habitual residence” while still preserving the original agreement that was enacted prior to the child’s abduction.

Over 90 countries have signed the Hague Convention Treaty including:

  • Australia
  • Belgium
  • Canada
  • France
  • Germany
  • Mexico
  • Netherlands
  • Spain
  • Switzerland
  • United Kingdom
  • United States

While the Hague Convention does not provide custody rights, it does provide legal recourse for you to get your child back if they are taken to another country without your permission.  If your child has been taken or is being held out of the country, you can petition your local court to invoke the Hague Convention.

The court will determine if both countries involved are signatories of the Convention, meaning which countries have signed the treaty. They will also determine which country has the jurisdiction to hear the case. The Convention ensures that all courts will act quickly in regards to the case and that a decision is made within six weeks of the initial petition.

However, the Hague Convention only applies to countries that have signed the treaty. This means if your child is taken to a country that has not accepted the Hague Convention, but you live in the US which has accepted the treaty, the Hague Convention does not apply. Both countries involved must be part of the treaty for it to apply.

Visitation and the Hague Convention

When it comes to visitation, both parents are encouraged to work together to come up with a schedule that works for both the children and the parents.  A reasonable visitation schedule requires that both parents can communicate and cooperate to maintain a flexible schedule.

If the relationship between the parents is not amicable, the courts can impose a fixed visitation schedule. This means a judge will develop a schedule that created arbitrarily and made into a court order, meaning both parties have to adhere to it.

In the case of a parent who moves to another state or country, the court visitation order will need to be revised to reflect the changes. With a reasonable visitation schedule, the parents can alter a schedule to allow time for travel to the other parent’s location and make any other changes without having to go through the court system. If there is a fixed visitation schedule in place, a petition will have to be filed to have a judge change the current visitation schedule, requiring a hearing to discuss the case.

Defense Against the Hague Convention

There are instances when a parent or guardian might be wrongfully accused of abducting a child and in these cases, it is possible for an experienced attorney to mount a defense. There are several ways your attorney can defend you should you be wrongly accused.

  • Proving that the custodial parent was not exercising their custody rights at the time the child was taken
  • Showing proof that the custodial parent had “consented or acquiesced” to the child being taken or held
  • Showing that one year had passed since the child was taken and when the petition for return of the child was filed
  • Proving that returning the child would put him or her in physical or psychological danger or that the child would be returning to an intolerable situation
  • Proving that returning the child would violate his or her human rights
  • The child can object to being returned to the custodial parent if they are mature enough to knowingly do so and explain why they object

When defending against the Hague Convention, the evidence is a key factor. In these cases, evidence restrictions are typically relaxed, meaning every effort should be made to submit evidence in any form. Text messages and emails, for example, can be an invaluable resource, especially when they contain evidence of the parents’ agreements and intentions.  However, live testimony is usually the best choice.

The International Child Abduction Remedies Act (ICARA)

The ICARA authorizes federal or state courts to provide “provisional remedies” that protect a child’s well-being and prevent the child from being hidden or removed from the current jurisdiction before the petition’s final disposition. The ICARA also allows the custodial parent interim access to the child.

The UCCJEA and Interstate Custody

The Uniform Child Custody Jurisdiction and Enforcement Act is designed to govern custody disputes across state lines. The UCCJEA has been adopted in every state except Massachusetts where the legislature is currently considering it. The law has also been accepted in:

  • Guam
  • District of Columbia
  • Virgin Islands

However, Puerto Rico does not currently recognize the law.

UCCJEA  “Home State” and State Jurisdiction

Both the UCCJEA and the Hague Convention reference a child’s home residence when discussing the return of a child. But unlike the Hague Convention, the UCCJEA refers to this as the “home state” and is very specific about its definition.

Home state is defined as the child’s place of residence with a parent for the past consecutive six months prior to the start of the child custody proceedings. If the child is younger than six months old, it is defined as the child’s place of residence since birth.

If the parent has not lived with the child in the same state for six months consecutively, the home state is defined as a place in which a parent and child have a significant connection to the state. This “connection” has to more than just the child and parent being present. There also needs to be substantial evidence in the state regarding the child custody proceedings. If there is no state that meets these requirements, the home state is defined as any state that has an appropriate connection with the child.

It should be noted that the home state has the right to decline exercising its jurisdiction in which case the jurisdiction will be transferred to another state that is convenient for both parties.

Once an agreement has been reached in regards to the child’s custody, the state in which the agreement was made retains jurisdiction for any future custody disputes and all other matters concerning that child. This is called exclusive, continuing jurisdiction and can only be changed if:

  • Both parents (or acting parents) no longer live in the state or
  • A court in the state with the jurisdiction determines that the child and parent no longer have a significant connection to the state and substantial evidence regarding the custody of the child is not available in the state.

Interstate and International Relocation

Humans are nomadic by nature. The allure of a fresh start and the desire for change is powerful and after a divorce, many people feel that a move to a new community is the only way to start over. But this can make custody cases complex, and it puts more stress on the children than a typical custody case.

Regardless of whether the relocation is interstate or international, the courts will try to determine the course of action that is in your child’s best interests. The criteria to determine this varies from state to state. However, international relocation requires additional factors for the courts to consider including:

  • Cultural practices and conditions in the destination country
  • Potential difficulties regarding visitation for the parent who remains in the home country
  • Issues regarding jurisdiction that would make the enforcement of the domestic child custody agreement and visitation orders (in other words, the extent to which the foreign country would enforce the custody agreement and visitation rights of the parent in the home country)
  • Whether or not the destination country is part of the Hague Convention

Contact Us for a Child Custody Consultation

International child custody matters can be extremely complex situations that require an attorney with knowledge of all aspects of the issues. If you or someone you know has an international child custody case that needs help, working with a knowledgeable and experienced attorney can make this emotional situation much easier.

At San Diego Family Law Attorney, our team has years of experience in child custody cases and our number one priority is the well-being of your child. Call us today at 619-610-7425 to speak to one of our experienced team members and take the first step to ensuring you and your child’s rights are protected. 

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