International child custody disputes

PassportInternational child custody cases often make the news. Such cases raise intense issues about conflicting legal systems and clashing cultural values. Scenarios in these cases can involve:

  • Parents who refuse to return a child after a visit to another country
  • Parents who refuse to let a child visit a parent in another country
  • Parents who unknowingly break another country's custody laws
  • Parents who relocate a child from one country to another without permission of the courts or the other parent (known as child abduction)
  • Children who wish to remain in another country with a parent
  • Spouses who move together to another country for work, but do not return to the U.S. as a couple and one parent wants to keep the children in the other country

The Hague Convention

Many of these scenarios are covered by the Hague Convention of 1988, an international treaty that deals with international child abduction. Unfortunately, the Hague Convention does not apply everywhere, but only in those countries that actually signed the treaty. Iran, Iraq, Saudi Arabia, China and many African countries have not signed the Hague Convention. Recovering an abducted child from a non-Hague Convention country is difficult, although not impossible.

The Hague Convention requires that children taken from their country of "habitual residence" be returned to that country. There are very few defences against this requirement. They include:

  • The defendant (the parent retaining the child in another country) can try to prove that the child should not be returned if more than a year has passed since removal from the habitual residence. The argument would be that to return the child would be disruptive because the new location is now home.
  • The defendant can try to show that returning the child would constitute a "grave risk" of physical or psychological harm.
  • The defendant can try to show that the other parent either agreed to the removal of the child or had not been exercising his or her custody rights.

To start the process of seeking a child's return under the Hague Convention, the petitioning parent or his or her attorney should contact the U.S. State Department Office of Children's Issues to complete a "petition for return."

What about children who have been brought to the United States without permission or kept in the United States longer than agreed upon? The same process applies in reverse. The parent outside the United States must file a petition to require return of the child under the Hague Convention.

There are many obstacles and hoops to jump through when trying to resolve an international child custody dispute. For example, if the other parent had permission for visitation outside the U.S., failure to return the child may not be viewed as abduction. The other country may not treat parents equally, giving more weight to the wishes of one parent over those of the other.

Other Laws Related to International Child Custody

There are other U.S. laws that parents outside the United States can use to try to resolve international child custody disputes. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been separately adopted by 49 states, the U.S. Virgin Islands, Guam and the District of Columbia. This law requires state courts to enforce custody determinations made in other countries if the parties had notice and the opportunity to be heard when the custody award was made.

International child custody cases are most common when parents are of different nationalities. When significant cultural differences also exist, the possibility of child abduction can be terrifying. It is important to have an attorney knowledgeable about the family laws that apply in the jurisdiction where the case will be heard, whether in the United States or abroad.