Child custody cases are complicated enough when both parents live in the US. But what happens when one parent lives outside the US or wants to relocate outside the US? If you already have a custody agreement, location changes mean changes in custody agreements. It means involving international laws – some of which might not agree with the US and Californian laws. So, how do courts navigate international child custody cases? Let's explore some of the common issues that arise in these cases and the laws courts apply.
Common Issues in International Child Custody
International child custody cases have unique factors compared to other custody cases. The most common ones include child abduction and determining the jurisdiction for the case.
Child Abduction
Instances of parental child abduction are common in international child custody cases. They arise when one parent removes or retains a child in a country outside their habitual residence, thus breaching the other parent's parental rights.
Child abduction can start as a legitimate visit with the parent, for example, as part of the visitation arrangement. However, when the parent fails to return the child to the other parent at the agreed-upon time, it becomes wrongful retention (child abduction).
The US is a part of The Hague Convention, which facilitates the expeditious return of children to the country where they habitually reside. Invoking The Hague Convention is advised when a parent abducts a child to a signatory country. Countries such as the UK, Australia, and New Zealand have an expedited removal process.
However, some countries hardly enforce the convention, meaning that if a parent abducts the child to these countries, it may take months, years or not at all for the child to be returned to their country of habitual residence.
In some cases, courts of the country to which the child was abducted may refuse the return of the child if:
- They believe that the child is at grave risk of physical or psychological harm in their country of habitual residence
- The child does not want to be returned (the views of the child are considered depending on their age and maturity)
- It has been more than a year since the abduction, and the child is settled in their new environment
- The parent requesting the child's return previously agreed to their removal or retention, then changed their mind
- The custodial parent allows the child to remain in the other country
- The parent seeking the return of the child did not have custodial rights at the time of the alleged child abduction
- The return of the child would violate their basic human rights and freedoms
Jurisdiction
Jurisdiction is one of the factors in child custody cases. The US federal court usually resolves matters involving US citizens and non-citizens, except in domestic matters such as divorce and child custody. These matters are left to the state in which the parties are domiciled.
Jurisdiction may vary depending on your current residence and the child’s habitual residence. For example, if you and your spouse moved to Italy to start your family, Italy is the child’s habitual residence and may have jurisdiction over custody issues.
However, if the child lives primarily in California, then California has jurisdiction over the child custody cases.
While one country or state may have jurisdiction and decide on the custody agreement, it is not always guaranteed that the other country will respect the custody order. This creates an issue with child visitation rights or enforcing a co-parenting agreement.
Jurisdiction determines the laws applied in these cases, including the primary custodian and child support payments. Therefore, if you live in China and your ex or children are Chinese citizens, the domestic laws there will apply to your case, despite your American citizenship.
Child Custody Relocation
When one parent plans to relocate to another country after a divorce, it affects the custody and visitation arrangements. When relocating abroad, you must go to court to prevent accusations of child abduction.
During these proceedings, the parent with sole physical custody may be allowed to move if the noncustodial parent hardly maintains a relationship with their child.
However, when the noncustodial parent has a well-established relationship with the child, the court might consider the relocation to be against the child's best interests.
When relocating out of state or the country, you should make the following considerations:
- Do not move to deprive the other parent of their custodial rights. When this happens, the courts may rule unfavorably toward you.
- You must sufficiently notify the noncustodial parent before relocation. This gives you enough time to negotiate new arrangements with the parent and allows you enough time to be in court. Of course, special circumstances such as being in the military might mean you don’t have much time to change custody plans. The court will consider such circumstances.
- When intending to relocate, you must have a plan that ensures the noncustodial parent has sufficient time with the child. This might include paying flights for the child/noncustodial parent to visit the child or allowing the child to travel to the noncustodial parent during off-school periods.
Child Support
The US has an agreement with 33 countries to work together in enforcing child support payments thanks to the ratification of The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance in 2010.
These reciprocating countries are the UK, Albania, Australia, Austria, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Ecuador, El Salvador, Estonia, France, Germany, Greece, Honduras, Hungary, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Malta, Montenegro, Netherlands, New Zealand, Nicaragua, Norway, Philippines, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, and Ukraine.
Parents who share custody with California residents can collect child support when abroad. California residents with shared custody can also claim child support when their ex moves overseas.
In these cases, either party must open an application online or at a California child support office. The state will then deal with the other country to determine whether a foreign country can enforce the child support order.
Laws on International Child Custody
The Hague Convention and the Uniform Child Custody Jurisdiction and Enforcement Act are the two laws commonly used in child custody cases where one parent lives outside the US. That said, domestic laws of different countries may apply depending on where the child custody claim is filed.
The Hague Convention
The Hague Convention helps signatory countries in recovering children when parents wrongfully abduct them. It provides a framework for countries to resolve cases of custody violations under the International Child Abduction Remedies Act (ICARA) in the US.
The enforcement of The Hague convention depends on member states and their willingness to help locate and return a child to their habitual residence.
When requesting the application of The Hague convention, the petitioning parent doesn't have to present a custody order. However, they must present proof of marriage or parenthood.
The parent who initially petitions for the return of a child under The Hague Convention bears the burden to prove that the removal or retention was wrongful. Afterward, the non-petitioning parent has the burden of presenting an affirmative defense to prevent the child's return.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a US-based law developed to deter and deal with parental kidnapping within the United States by encouraging uniform jurisdiction and enforcement of child custody orders across the US.
Differences Between the UCCJEA and The Hague Convention
The UCCJEA and The Hague Convention seek to support the custodial parent's rights by preventing parental child abduction. However, the two have significant differences.
First, parents can request their child's return under The Hague Convention without a custody or visitation order. On the other hand, you must seek a visitation or custody order to request a return under the UCCJEA.
UCCJEA requires that the child be returned immediately (the next day) to restore the child to the rightful parent as soon as possible. While The Hague Convention facilitates fast returns, it may take about six weeks or more.
Parents can request the return of a child of up to 16 years, while under the UCCJEA, parents can request the return of children of up to 18 years.
Working with an attorney will help you determine the best course of action and the process of requesting the return of a child under both laws. They will also help you understand the common defenses used to expedite the process.
If you are the parent trying to keep the child, they can advise you on the defenses that can be applied as exceptions to return orders.
Tips for Handling International Child Custody Disputes
International child custody disputes create confusion for most people. You're likely to make costly mistakes that jeopardize the child custody case through this confusion.
-
Hire Attorneys in Both Jurisdictions
Child custody laws vary in different countries. They do not match California laws. In some cases, the laws might appear to say the same thing, but their practice and application are wildly different. Therefore, hiring family attorneys in both jurisdictions is wise to help you navigate both court systems.
The embassy or consulate is a good place to help you get referrals to reputable family law attorneys in the other jurisdiction.
-
File First
In most divorce cases where parents wish to relocate, they rush into moving the children first, triggering a child abduction case. Instead, file for custody first, preferably in the jurisdiction where you want to live with your children after the divorce.
-
Don’t Relocate Your Children
Suppose you live in California with your children and the other parent in the UK. If you want your children's primary residence to be in California, do not relocate them, even for a vacation. In international child custody cases, the habitual residence gets more preference as it's the least disruptive to the children's lives.
Relocating them amidst a custody proceeding could interfere with their ‘habitual residence.’ In California, for example, a child's habitual residence is the country or state where they lived for the previous six months before the custody dispute.
-
Compare Custody Laws in Both Countries
In cases where you and your children have dual citizenship, you can compare the custody laws in both countries to determine the country with the most favorable laws. Consult with family law attorneys from both countries to help you compare these laws.
When comparing these laws, check whether both countries are signatories to The Hague Convention. The Hague Convention provides instructions on preventing child abduction, including the expedient return of abducted children in child custody cases.
However, being a member of The Hague Convention is not a guarantee that your children may be returned expeditiously once parental abduction occurs.
-
Negotiate a Custody Agreement with Your Spouse
Cases where both parents are looking out for the child's best interests are easier to handle. Therefore, negotiating with your spouse can make the process easier for you. It can eliminate the need to go through intensive court battles that drain you emotionally and financially.
Suppose, for example, that one parent wants to relocate outside the US and they share joint custody with the other parent. In this case, the child has spent more time in the US and has roots there. Therefore, it makes sense for the parent remaining in the US to have primary custody while the other parent gets visitation. Make sure to update the court with the modified custody agreement to prevent issues in the future.
During negotiations with your spouse, ensure that any agreements are in writing. Verbal agreements are often dishonored, especially in family law situations, and can be hard to enforce in international child custody cases, which are already complicated.
-
Collect Evidence
Child custody cases differ. That means the evidence you’ll need will depend on your circumstances. For example, if your ex wants to relocate with your child to another country, you can present evidence of their ties and roots in the US.
If you're concerned that your ex is abusive to your children, present evidence supporting and demonstrating that the parent is not safe for your child. Other evidence helpful in international child custody cases includes:
- Expert testimony about the safety of the overseas country
- Past threats and behavior, including previous parental abduction attempts
- The laws in the other country and how often these countries honor US child custody orders
-
Be Strategic
When considering a divorce, especially overseas, you should think carefully about the implications. You should look at the big picture to determine what's in the best interests of everyone involved.
This involves getting professional advice about what you can expect, the required evidence, and the steps you can take to strengthen your case.
Most parents make the grievous mistake of running off with their kids back to or from the United States. When you do this, you're opening yourself up to charges of parental child abduction. It also does not help your case to get your child's custody.
You should also be strategic about the agreements you make with your ex. Get everything in writing to protect yourself. While these agreements may not work in all cases, they are much better than he-said/she-said declarations.
Remain calm and respectful of the other parent during all court proceedings, even if the other party is unreasonable or acting out of spite. In child custody cases, the court is concerned with the child's best interests. Therefore, behavior that could be seen as unstable may raise the question of your suitability as a parent over the other party.
Frequently Asked Questions
-
What is the international law on child custody?
Child custody laws differ depending on the country. There's no international law on child custody. Still, certain treaties, such as The Hague Convention, provide a means to restore parental rights to the custodial parent when a child is abducted to or outside the US.
Since countries apply different custody laws, they are under no obligation to abide by custody orders from California or the US.
-
Can a non-citizen of the US take the child back to their country?
Non-citizens with sole legal custody have the right to take the child to their country of origin. However, when they have joint-shared custody with a citizen, taking the child with them becomes illegal, even in the event of deportation.
-
Can a mother take a child abroad to live without the father’s consent?
The custodial parent must have the noncustodial parent's consent to move with their child abroad. When the noncustodial parent does not consent, the custodial parent can petition the court for permission to move abroad with their child.
When this happens, the court will consider what is in the child's best interests. This means considering factors such as the child's age, their familiar connections in the US, the country they are moving to, the relationship with the noncustodial parent, and the child's safety in the new country.
Find a Family Law Attorney Near Me
International child custody cases are complicated. Family laws differ, but their application in real-life cases also varies vastly. Depending on the country and culture, it is even harder to enforce child custody orders from the US or allow a parent to access their child. If you are dealing with custody issues due to another parent being overseas, contact San Diego Family Law Attorney at 619-610-7425 for assistance with your case.
