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 Do I Enforce a Child Custody Order When a Parent Moves Abroad?
When a parent wants to move a child to another state or country, they must modify a child custody order and get approval. There are unique challenges that arise when the parent moves abroad to avoid child custody orders. Many foreign countries will not enforce U.S. child custody orders when a parent who moves to another country to avoid prosecution for not making child custody orders or support payments. However, the Hague Convention Treaty seeks to make international enforcement possible. Many foreign countries will cooperate in enforcing U.S. child custody orders and parents can pursue private legal actions against parents in other countries.
How Do I 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:
- File for divorce or legal separation;
- File a petition for custody and support; and/or
- 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.
How Do I Serve the Custody Order to 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:
- The other parent’s country is not a signatory nation.
- The address of the other parent is not known. But you may have to persuade the court that you made reasonable efforts to locate the other parent.
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.
Do I Need a Family Lawyer?
International child custody cases are very factually and procedurally challenging. Each country has unique service requirements and jurisdictional laws. Child custody can involve many complex and emotional issues. An experienced child custody lawyer or general practice family law attorney can help defend your rights In a custody battle.