In the realm of litigation, child custody cases can be some of the most contentious and complicated disputes. Child custody cases can become even more heated and emotionally charged when they take place in an international arena. While child custody disagreements in the United States are largely regulated by state and federal law, it can be difficult to determine which country has jurisdiction over an international custody dispute and what laws should apply.
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Determining Which Country’s Rules Should Apply
While in the United States a child’s home state generally has jurisdiction over custody matters, other countries are not required to abide by the laws of the United States. Further, a foreign court may chose to disregard any existing custody order in the United States. If the parents of a child do not reside in the same country, and the child routinely resides with both parents, it can be difficult to determine which country should have jurisdiction over a case to determine custody of the child. If a parent in one country has filed a child custody case and the other parent does not believe it is the proper venue for the action, the parent seeking to transfer the case will most likely have to file an action in the original court. The successfulness of any action seeking to transfer a child custody case will rely solely on the laws of the country and the court determining the issue, which obviously will vary greatly depending on what country is involved.
Recourse When a Child is Wrongfully Taken to a Foreign Country
If a child has been wrongfully taken to another country, a treaty referred to as the Hague Convention may aid a parent in getting the child back. The effectiveness of the Hague Convention is limited, however, as it only applies to countries which are signatories to the treaty. It is also important to note that the Hague Convention does not allow for the modification of custody rights, it simply sets forth that any child that has been abducted to a foreign country should be returned to his or her home country.
To take advantage of the Hague Convention, the parent must file a petition asking the court to invoke the Hague Convention. If the country to which the child has been abducted is a signatory to the treaty a hearing will be held. If after the hearing the court determines the child was wrongfully taken from the country in which the petition was filed, and the child was a habitual resident of said country, the child must be returned to their home country within six weeks. The term habitual resident is not defined, but courts generally weigh several factors, including where the child has historically lived and the intentions of the parents.
Even if a parent initially had permission to take a child to a foreign country, their actions could meet the standard of wrongful retention if they keep the child past the agreed return date. For example, Martha and Amelia share custody of their child, Emma. Martha receives permission from Amelia to take Emma on a month-long visit to Italy. After the month elapses, Martha announces that she intends to stay in Italy with Emma indefinitely. Martha may now be engaging in wrongful retention.
There are defenses available under the Hague Convention to a claim that a child was wrongfully removed, but they are limited. Defenses include the argument that the other parent consented to the removal, that over a year has passed since the removal, that the child is of an age where he or she can make a reasoned decision and objects to returning to his or her home country, or that the child was in danger of being harmed.
Relocating a Child to a Foreign Country
In some cases both parents will reside in the same country but due to a change in circumstances, one parent will seek to relocate to a foreign country with his or her child. In determining whether to allow a parent to move a child to a foreign country the court will weigh several factors, including whether the country is a signatory to the Hague convention, whether the foreign jurisdiction will enforce any existing custody orders, and the effect of the relocation on the current custody of the child. Of course as in any custody case, the ultimate factor in determining whether to allow one parent to relocate a child to another country is whether the relocation will be in the best interest of the child.