For many years, a parent’s greatest fear in case of divorce or child custody was that one parent would simply remove the child to another country and that parent would have no immediate legal recourse and would have to try and fight for custody in the country where the child had been taken. To deter parental kidnapping and bring some uniformity to handling cases where parents and children have citizenship in different countries, the Hague Convention convened a large number of countries to devise a governing document, the Hague Treaty. The United States is a signatory and governed by it, as are the dozens of other countries who have ratified it since 1980.
The Hague Treaty works around a central principle – a child can have only one residence, and that is his or her habitual residence. The Treaty does not define habitual residence; however, on February 25, 2020, the U.S. Supreme Court issued its opinion in Monasky v. Taglieri. SCOTUS held that a child’s habitual residence depends on the totality of the circumstances specific to the case – providing one uniform legal standard for this key term for the first time, applicable to all children. This decision altered habitual residence determinations in the US and changed the language and the landscape of habitual residence going forward.
The Hague Treaty is narrow, concerned only with wrongful removal of a child from his or her habitual residence or wrongful retention of a child outside of his or her habitual residence. The Hague Treaty is not a forum for deciding custody issues; rather, it is a forum for securing the safe return of a child who has been wrongfully removed or retained.
Consider a common Hague scenario.
Mother is a native of Argentina, father was born in the United States. The couple married and resided in Missouri, where they had two girls. The marriage broke down and after a lengthy divorce process the parents were awarded joint legal and joint physical custody of their children. Soon after the entry of the divorce, mother obtains permission to take the girls to Argentina for a short-term visit. Once mother arrived in Argentina, she chooses not to return the children to Missouri.
When one parent takes a child to another country in violation of a valid custody order, the parent seeking the return of the child has two potential remedies depending upon the countries involved. If both countries are signatories to the Hague Convention on International Child Abduction (the Hague Convention), that treaty governs and the parent would follow the Hague rules for the return of the child. If one country is not a signatory to the Hague Convention, a parent must use the State Department and Interpol to try and seek the return of the child. Fortunately, most countries are signatories to the Hague Convention.
How does the Hague Convention work? The Hague Convention has two objectives: to provide a uniform means of safely securing the return of children wrongfully retained by a parent in a country different than the habitual residence of the children, and to leave all custody determinations to the country that is the habitual residence of the children.
In our hypothetical case, the children resided with both parents in Missouri both before the divorce and after the divorce, and the family court in Missouri issued a custody order defining the specific custodial rights of each parent. The children never lived in any settled fashion in Argentina prior to mother taking the children to Argentina. So, the habitual residence of the children would be Missouri, and mother has no right to remove them to Argentina.
That is the legal part; the challenging part is securing the actual return of the children. Under the Hague Convention, father has to initiate a Hague proceeding in Argentina, where the children were located, and ask the Argentinian court to find mother wrongfully removed the children to Argentina and order their return to Missouri.
Let’s assume that the children are ordered by the Argentinian court to return to Missouri.
Once the children return to Missouri, one would not expect mother to simply give up. Instead, we would expect her to file a motion to modify custody and request to relocate with the children to Argentina.
Missouri family court judges face some of the most difficult decisions when faced with parents who want to reside in separate countries. Given the long distance between residences, assuring the children have frequent contact with both parents becomes nearly impossible, and the lengthy travel is not only expensive but highly disruptive to the lives of the children. Also, the judges have to deal with the fear that the parent who resides outside the United States will not return the children as ordered. All of these factors tend to dissuade judges to allow a relocation without very strict control over the ability of the children to travel outside the country.
How would a Missouri family court judge look at this custody problem?
The legal standard for relocation is whether it is made in good faith and is in the best interests of the child. In this case, mother wrongfully retained the children in Argentina; it is doubtful her request to relocate is in good faith rather than for the purpose to keep the children away from father. The court would still need to consider joint physical custody as its first option. Assuming that the children are bonded with father, you would expect the court to find that it would be in the best interest of the children for the parents to reside in Missouri and for the children to have frequent contact with both parents. However, the extreme actions by mother suggest she may not always act in the best interests of the children, and the court could consider awarding father sole legal custody of the children.
Could Missouri ever order a shared custody situation where one parent can live with the children in another country for part of the year? Yes, under the right circumstances. If both parents show a willingness to put the interests of the children first and will not resort to wrongfully removing or retaining the children in a foreign country, such a custody arrangement could exist, but would at a minimum require the children reside principally in the United States to attend school and have a stable home, as well as require the consent of both parents in writing before the children could travel out of the country.
International child abduction issues involve a mixture of state, federal and international law and require real expertise and experience. The Marks Law Firm has handled multiple complex international abduction cases; if you have such a case, contact us – we can help.