On behalf of The Marks Law Firm, L.L.C. posted in Divorce on Wednesday, January 23, 2013

Consider the following scenario. Kalinda, an Indian woman born in Mumbai, falls in love with Robert, a Frenchman born in Paris but raised in the United States and a naturalized American citizen, while both pursued medical studies at the University of Chicago. They marry and eighteen months later, Kalinda gives birth to a son, Max, in a hospital in Rome, where the couple had been enjoying a vacation after their dual graduations from medical school.

Young Max is quite the citizen of the world at birth! Under Italian law, he is a citizen of Italy. Under Indian law, he is a citizen of India. Under French law, he is a citizen of France. And under U.S. law, he is an American citizen.

Besides making an interesting trivia question, does this have any practical significance? Yes, should Kalinda or Robert one day seek a divorce.

Suppose that Max continues to reside with Kalinda and Robert in the United States, but that Kalinda maintains a home in Mumbai and all three regularly spend the summers together in Mumbai as a family. One year, Kalinda decides to extend her and Max’s time in Mumbai to stay close to her mother, who has fragile health. After Max has lived in Mumbai for seven consecutive months, Kalinda decides to file for divorce in India and has no intention of ever returning with Max to the United States. Robert, now in shock, wonders how – or if – he can regain custody of Max.

Citizenship alone will not determine the proper forum for divorce; that remains a question of residence or domicile. However, having citizenship in multiple countries may make “forum shopping” much easier. For example, an Indian citizen usually has the ability to obtain a divorce in India regardless of actual residence. Further complicating matters, India is not a member nation of the Hague Treaty on International Child Abduction – which means in our scenario with Max, Robert would have a very difficult legal challenge to secure custodial rights to Max.

Suppose we change our scenario by having Robert file for divorce in Illinois before Kalinda files for divorce in India. Both parties obtain a final decree in their respective countries. Which decree is valid? In the United States, we follow the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), under which the residence of the child at the time of the filing of the petition for divorce determines the only recognizable forum. In this case, Robert would have met the legal residency requirement for divorce in Illinois, and no American court would recognize the Indian decree secured by Kalinda. But since Kalinda remains in India and is not a party to the Hague Treaty, retrieving Max would require help from the State Department and Interpol.

The saga of Max is hardly hypothetical. David Goldman, an American citizen married Bruna, a Brazilian woman, and together had a son, Sean, born in the United States. When Sean was four years old, Bruna took him on a vacation to Sao Paolo, Brazil, but quickly secured a divorce in Brazil and married another man. Brazil is not a party to the Hague Treaty, so David had incredible difficulty obtaining custody in the Brazilian courts. His journey became an international story and his face familiar to viewers of the Today show on NBC.

Citizenship in multiple countries can give a spouse an advantage in an attempt to “legally abduct” the parties’ child through a foreign divorce. Anyone who enters a marriage with such a spouse should consider making prenuptial agreements regarding custody as one possible method to avoid the fate of Robert or David Goldman.

At the Marks Law Firm, LLC, we have successfully handled cases of international child abduction, and advised clients seeking to marry a spouse with dual citizenship. If you find yourself in a similar situation, we can help.