How to Get a Child Custody Order When a Parent Lives in a Foreign Country

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The Benefits of a Custody Order

A formal child custody order can be valuable if the other parent lives in a foreign country. It can prevent conflict about each parent’s custody and visitation rights.

A custody order can even be beneficial if the other parent is no longer involved in your child’s life. For example, it can enable you to get a passport for your child without having to get written permission from the other parent.

How to Initiate Child Custody Proceedings

There are unique challenges that arise when the other parent lives in a foreign country. Before initiating custody proceedings, you should consider consulting with an experienced family law attorney.

After consulting with an attorney, the next step will depend on your state’s laws and your marital status.

Generally, if you are married to the other parent, you can either:

If you are not married to the other parent, you can file a paternity action.

The petition should usually be filed in the county where the child has resided for at least the past six months.

Serving the Other Parent

After filing the petition, you must have someone over 18, besides you, serve the other parent with a copy of the summons and petition

In most jurisdictions, you can serve the other parent using any method authorized in the United States. The most common method is personal service, but this can be impractical if the other parent lives overseas. Other options may be available depending on your jurisdiction, such as service by registered mail with returned receipt requested.

International treaties also provide unique requirements for international service. The most important is the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("Hague Service Convention").

What Is the Hague Service Convention?

The Hague Service Convention is a multinational treaty that governs international service of process. There are approximately 50 signatory countries. If the other parent lives in a signatory country, the Hague Service Convention may apply.

The Hague Service Convention requires signatory nations to create central authorities to receive requests for service of documents from other countries. Signatory nations may also have special provisions about service in their countries.

How Do I Know If the Hague Service Convention Applies?

The Hague Service Convention applies to all civil or commercial cases. Most courts interpret "civil" to include family law proceedings. Some jurisdictions also have laws expressly stating that the Hague Service Convention applies to family law cases.

While the Hague Service Convention will usually apply to your family law case, it does not apply if:

What If I Don’t Follow the Hague Service Convention?

Failure to properly serve a party who resides in a signatory country will make any default judgment or order void, even if you can prove that the other parent actually received the summons and petition.

What If the Other Parent Has My Child?

If your child has been living with the other parent for longer than six months, you can usually request a court in the country where your child is living to decide custody. Most states will honor a foreign custody order.

If the other parent recently moved with your child overseas, the Hague Convention on the Civil Aspects of International Child Abduction, which provides for the prompt return of children taken from their place of "habitual residence," may apply. You should consult with an attorney immediately to discuss your options and take emergency action if necessary.

Should I Contact an Attorney?

International child custody cases are very factually and procedurally challenging. Each country has unique service requirements and jurisdictional laws. To best ensure that you follow the applicable laws and avoid delays, you should consider consulting with an experienced family law attorney.

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Last Modified: 07-16-2014 10:29 AM PDT

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