Lessons From an International Child Custody Case – Part One

divorce involving small children

A Colorado family court is hoping to bring a six-year international custody battle to a positive conclusion soon. The saga has much to teach about wrongful retention (or child abduction) and how to handle both relocation and custody when one spouse may want to leave the United States. We will discuss these issues over two posts.

First, the background. Mother is a native of Argentina, father was born in the United States. The couple married and resided in Colorado, where they had two girls. The marriage broke down and after a lengthy divorce process the parents had shared custody. Soon after the entry of the divorce, mother obtained permission to take the girls to Argentina for a short-term visit. Once she arrived in Argentina, she chose not to return the children to Colorado, and the legal adventures began.

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 which, in 1982, created a uniform remedy for international child custody disputes designed to deter parental kidnapping.

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. Habitual residence is the key to the Hague Convention and is defined as the place where the children had a settled intention to live prior to the wrongful removal.

In our Colorado case, the children resided with both parents in Colorado both before the divorce and after the divorce, and the family court in Colorado 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 was Colorado, and mother had 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 had 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 Colorado. Father did so, but the process moved very slowly and it took four years for the Argentinian courts to finally order the return of the children. In that time, father was deprived of his custodial rights and did not see his children except through Argentinian court orders. Other countries process Hague cases faster; usually, a Hague case in the federal court in the United States will be heard and decided within six to eight months. It is somewhat unusual for the process to drag on for several years, but unfortunately can be the norm in certain countries.

Had the facts of this case replaced Missouri for Colorado, father would still have had to go to Argentina to secure the return of the children.

In our next post we will discuss the custody proceedings in the Colorado case and how that would play out in Missouri.

If you have questions about international child custody issues, contact us – we can help.