Lessons From an International Child Custody Case – Part Two

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In our previous post, we introduced the saga of a Colorado couple embroiled in an international child custody dispute. After mother and father divorced in Colorado and the court entered a shared custody order, mother took the children, Colorado residents, to Argentina, the native country of mother. Mother refused to return the children to Colorado and father began a Hague proceeding in Argentina. After four years, Argentina finally ordered the children’s return.

Once the children returned to Colorado, mother did not just give up. Instead, she filed a motion to modify custody and to relocate with the children to Argentina.

Family courts 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 courts 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 courts to allow a relocation without very strict control over the ability of the children to travel outside the country.

In the Colorado case, the court appointed a guardian ad litem to represent the interests of the children and also utilized psychologists as experts to determine the relationship of the children with each parent and what custody arrangement would be best for the minor children.

When the children returned to Colorado, the court gave father principal custody, mainly due to the intentional act of mother wrongfully depriving father of custody for four years. The court hoped to rehabilitate the relationship between the children and their father. As a result, mother had visitation with the children for only 30% of the time.

The experts reported to the court that the children had made great progress reestablishing residency in Colorado, making new friends, adjusting to school and forming meaningful relationships with teachers and peers. Fortunately, the girls have managed to bond in a positive fashion with both parents, but the experts advised the court that moving to Argentina or New York (a second choice offered by mother) would be detrimental to the girls because it would deprive them of meaningful access to father. Another move would be “traumatic” according to the experts.

The court has yet to enter a final order, but it is likely the court will follow the recommendation of the experts and designate father as the sole legal and physical custodian, with mother granted reasonable visitation in Colorado and limited ability to travel with the children.

If this case had been in Missouri, courts would likely reach a similar result. 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. Given the expert testimony, it would be in the best interest for the parents to reside in Colorado and for the children to have frequent contact with both parents. The extreme actions by mother suggest she cannot act in the best interests of the children, and so our courts would likely entrust father with sole legal custody.

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.

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