A child custody order is a court order that specifies the custody and visitation arrangements concerning a minor child involved in a divorce case. Child custody gives the named parent the right to make major decisions concerning the child.
A child custody order can be useful even when the other parent is no longer involved in the child’s life. The order gives the active parent rights they might not otherwise have, such as being able to obtain a passport for the child without permission from the other biological parent. Additionally, a child custody order can be especially useful in situations in which the other parent lives in a foreign country.
When a parent wants to move the child to another state, or even another country, they must request the judge to modify the child custody order and get the court’s approval before doing so.
However, many foreign countries will not enforce United States custody orders when a parent moves to another country. This is especially true if it is done in order to avoid prosecution for violating child support or custody orders.
As noted above, many foreign countries will not enforce a United States child custody order against a parent who moves to another country to avoid prosecution for not making court ordered child support payments.
Typically, after parents separate or divorce, both parents still have ongoing custody disputes. One such common custody dispute occurs when one biological parent attempts to remove a child from their home country and relocates them to a foreign country without the consent of the other biological parent.
If you or someone you know is facing a situation where their child’s has been removed from their home country, then the remaining parent may be able to invoke the protections of the Hague Convention.
The Hague Convention Treaty seeks to make international enforcement of child custody orders possible. Because of the Hague Convention, many foreign countries will cooperate in enforcing United States child custody orders and parents can pursue private legal actions against parents in other countries.
The Hague Convention, also known as the Hague Convention on the Civil Aspects of International Child Abduction, is an international treaty that was enacted by the United States in 1980 in order to address the problem of international child abduction. The purpose of the Convention is to deter international child abduction. It also provides a legal process for the prompt return of any abducted children to their home country.
However, it is important to note that the Hague Convention only applies to signatory countries, or countries that have signed the treaty. Thus, Hague Convention remedies are limited to situations in which a child has been taken from their home country to a country that has signed the Hague Convention.
The Hague Convention itself does not provide substantive custody rights. However the Convention does provide for judicial proceedings to return the abducted child back to their home country, where a court can properly enforce a valid child custody order.
In order to enforce the Hague Convention, the parent seeking to have the abducted child returned to their home country (“the petitioner”) should first file a custody action in their local court and ask the court to invoke the Hague Convention.
In order to file the custody action, the petitioner must prove that the child was a resident of their home country immediately before the action was file. They must also show that the child was wrongfully removed from their home country.
Next, the petitioner must serve the other parent by using any legal method of process service authorized in the United States. The court will then determine whether the country in which the child has been taken is a signatory nation. It must also decide which country has proper jurisdiction to hear the child custody dispute.
Then, in accordance with the Convention, the courts of the foreign country must act quickly in returning the abducted child. This is done by ensuring that a final decision regarding the dispute is made within six weeks from the date the child custody action was filed. Other options for parents seeking the return of an abducted child include utilizing the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).
As can be seen, many unique challenges arise when obtaining a child custody order when the other biological parent resides in a foreign country. Thus, before initiating any child custody proceedings, it may be in your best interests to consult with an experienced family law attorney.
After consulting with an attorney, if you married to the other parent, you may:
- File for divorce or legal separation from your spouse;
- File a petition for child custody and child support. The petition for child custody and/or child support must be filed in the county in which the child has resided for at least the past six months; or
- If you are not married to the other parent, meaning the child’s father is not presumed by the marriage, you may file a paternity action.
As can be seen, international child custody cases are often very challenging. Further, because every country has unique laws and service requirements, international child custody cases are very complex.
Therefore, it may be in your best interests to hire an experienced and well-qualified child custody lawyer. Your attorney can assist you throughout the process of obtaining a child custody order when the other parent lives in a foreign country.