Custody disputes, when not handled effectively, are some of the most difficult, heart-wrenching and financially draining situations a parent can encounter in a domestic relations case. Litigation is expensive, emotionally taxing, and often results in at least one parent believing that his or her role in the child’s life has been marginalized.
International custody disputes raise the stakes even higher because court orders from the United States may not even be recognized in other countries. If your child is traveling or residing within a country, with the other parent, and that country does not recognize your court order, that country’s judiciary system will do nothing to return your child to you in the United States.
How can that be? In which countries could this occur? What steps can be taken to prevent this from happening?
First, a framework to understand the rules that are currently in place:
1980 Hague Convention on the Civil Aspects of International Child Abduction
More commonly referred to as the “Hague Convention,” this treaty was signed by a number of countries to assist one another in cases involving child abductions. Without the treaty, sovereign nations cannot interfere with another’s legal systems, judiciaries, or law enforcement, and so child custody orders are unenforceable. However, the Hague Convention sets forth the following rules for all signatories:
- Each country must have a Central Authority, which is a main point of contact for parents and other local governments involved in abduction cases. Central Authority is responsible for helping locate abducted children, encouraging amicable solutions to parental abduction cases, and facilitating the safe return of children as appropriate.
- Countries are expected to conduct expedited proceedings of Hague Convention applications. Courts must explain delays if it takes more than 6 weeks.
- If custodial rights were violated when the child was taken from the child’s home country, a custody order is not necessary to begin Hague Convention proceedings.
In order to commence Hague Convention proceedings, a parent must show the following:
- The child is under the age of 16
- The child was “habitually resident” in one convention country and wrongfully removed to another convention country
- A person can only have one “habitual residence,” which pertains to the customary residence of the child prior to the removal. Habitual residence can be altered only by a change in geography and the passage of time, not by changes in parental affection and responsibility, nor the child’s citizenship. See Friedrich v. Friedrich, 983 F.2d 1396 (1993)
- The place where a person had been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from a child’s perspective. See Feder v. Evans-Feder, 63 F.3d 217 (1995)
- Removal or retention of the child is wrongful (i.e., a violation of custodial rights)
- A “violation of custodial rights” is a breach of custody attributed to a person under the law of the State in which the child was habitually resident immediately before the removal or retention
- At the time of removal or retention, those custodial rights must have been actually exercised, or would have been exercised but for the removal or retention
- The Hague Convention was in force between the two countries when the removal or retention incurred (a list of all countries that are partners to the Hague Convention can be found on the websites of the Hague Conference and the U.S. Department of State).
Compliance with the Hague Convention
One must not assume that a partner to the Hague Convention will immediately comply with its responsibilities. For example, in May 2018, the U.S. Department of State cited Japan as one of the countries showing a pattern of noncompliance with the Hague Convention. It found that “22 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months.”
Further, it found that the enforcement process is “excessively long” and it is “very difficult to achieve enforcement of Hauge return orders.” The U.S. Department of State issues an Annual Report on International Child Abduction in which it summarizes the status of all signatories to the Hague Convention.
Notwithstanding the issues surrounding noncompliance with the Hague Convention, there are legitimate reasons for denying the return of a child to his or her country of habitual residence:
- If there is a grave risk that the return would expose the child to physical or psychological harm, or otherwise place the child in an “intolerable situation”
- The child objects to being returned and has attained an age and maturity at which the court can take account of the child’s views
- More than one year has passed since the wrongful removal and the child has become settled
- The party seeking return consented to or acquiesced to the removal or retention
- Return of the child would violate human rights
- The party seeking return was not exercising rights of custody at the time of the removal
Steps to Prevent Your Child’s Wrongful Removal/Retention
For these reasons, it is prudent practice to be very specific about international travel when drafting a custody agreement. International travel requirements will be extremely helpful in pleading for the return of a child under the Hague Convention as they will help show that a party ignored specific protocols and that, therefore, the removal or retention of the child was “wrongful.”
Here are a few tips to help safeguard your family:
- The agreement should require advance notice of travel, a complete itinerary for the travel, including an exact return date, and means to communicate with the other parent and the child during the travel. If a party wishes to differentiate travel to countries that are signatories to the Hague Convention and those that are not, that must be included in the agreement as well;
- The agreement should also reference control of a child’s passport during periods of non-travel and a process for transferring the passport prior to travel;
- When traveling internationally, always carry a certified copy of your custody order. Bring a digital copy with you as well, for convenience, but do not rely on the digital copy as an official record; and
- If your child custody matter is being litigated, those specific terms should be argued, with reasons to support the inclusion of those terms in the final custody order.
If you or your loved one is faced with this frightening experience, please immediately contact your country’s officer, as well as a local domestic relations attorney with experience in international custody disputes, and begin filling out a Hague Application at the U.S. Department of State website.
If you need assistance beginning the process, have further questions about your child’s international travel, or simply wish to draft a comprehensive custody agreement that covers all aspects of international travel, the experienced Virginia divorce and family law attorneys at Curran Moher Weis are here to help you throughout the process.
Contact us to set up a consultation on our website, or by calling us at (571) 328-5020. Consultations are available in Fairfax and Alexandria, Virginia.