What happens in an International Custody Dispute?

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For several years, the U.S. State Department has invited me to speak to a group of attorneys and judges from countries other than the United States who handle international child custody disputes in their respective countries. I focused on the role of the Hague Convention on the Civil Aspects of Child Abduction (the Hague Treaty) and how it governs international custody issues for signatory countries. As I answered questions, I realized that all would benefit from a brief review of the law of international child abduction.

For many years, a parent’s greatest fear in case of divorce 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 significant 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, courts in many countries have adopted a common sense approach, looking to the factors that lead to habitual residency. These factors include intent to remain in a country, the duration of the stay, community ties to the location and actions of legal residency.
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. Parent A is a citizen of the United States; Parent B is a naturalized citizen of the United States and a native citizen of Spain. The parents married in the United States and resided there for two years before moving to the United Kingdom, where they lived for five years and had a child. After five years, they divorced. One year after divorce, Parent B took the child to the United States and will not return. Under the Hague Treaty (which applies because the United Kingdom is also a Hague country) Parent A needs to file a Petition for Return under the Hague Treaty in the federal district court where the child is presently located. The district court will hear evidence and barring any evidence of imminent threat of harm to the child from Parent A, the district court will order the return of the child. Why? Because the child resided all its life in the United Kingdom and had no ties to the United States, its habitual residence is the United Kingdom. Further, the United Kingdom dissolved the parties’ marriage and entered a custody order, so under the UCCJEA and the Hague Treaty, the state in which Parent A resides would determine all custody issues.

Situations become more complicated when duration in one country may be short, or parents kept residence in two countries. Also, when parents have not divorced or never married, no custody order is in place. In these situations, the United States relies on the Parental Kidnapping Protection Act (PKPA) that criminalizes such behavior and can serve as a basis in a Hague proceeding to return a child.

What happens if a parent removes a child to a country like India that is not a signatory to the Hague Treaty? Unfortunately, the Hague has no impact, and the parent must resort to filing complaints with the State Department and Interpol to locate the child. The parent may also have to go to that country and fight on its turf for return, which may be incredibly difficult.

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.


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