International 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:
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:
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.
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.