What You Need To Know About International Custody Disputes
Even despite the most stringent orders, many parents still face the frustrating and frightening experience of their children being kidnapped by an ex-spouse. Such a situation becomes even more dismaying when that spouse takes the child out of the country, creating a judicial nightmare in securing the child’s return.
To address the rising number of international child abductions, several countries united together and signed a treaty known as The Hague Convention on the Civil Aspects of International Child Abduction.
The Hague Convention basically provides a venue for one parent to solicit the return of their child when the child has been wrongfully taken out of the country. Under this treaty, each “contracting state” has set up a Central Authority (or command post) that acts as the contact point for other countries seeking relief. Once an application has been made from the child’s home country (usually by the complaining parent), the Central Authority in the suspected country must do everything in its power to determine the whereabouts of the child and secure his voluntary return.
This treaty can be enacted even if there is nocustody order in effect. A cause of action may be brought as long as:
- The petitioning parent had custody of the child (sole or joint ) either by a custody order or operation of the law, known as du jure. This means that the petitioning parent had been acting in a custodial manner or that custody was assumed and agreed to in practice;
- The child was habitually a resident of the country from where he was abducted; and
- At the time of the wrongful removal, the petitioning parent was exercising his or her custodial rights.
The Hague Convention provides some defenses to such a petition including the claim that the petitioning parent knew the child’s whereabouts and did not act for more than a year. In addition, the court may refuse to return the child if the petitioning parent was not exercising his or her custodial rights voluntarily or if returning the child would causephysical or emotional harm to the child. And if the child has reached an age of reasonable maturity, the child’s documented desire to stay in the new country can also be enough to have the petition for return denied.
These are what is known as “affirmative defenses”, meaning that it is the responsibility of the abducting parent to prove their claim of defense.
The Hague Convention only works when both the residence country and the country to which the child was taken have agreed to the treaty. It can also not be used on children that are 16 years of age or older.
This treaty is not designed to settle custody disputes but rather to keep the dispute in the residence country where both parents have a opportunity to exercise their custodial rights.
To learn more about whether the Hague Convention applies for you, and how to enact it, contact a Family Law Attorney in your area.
4 Comments
I am a New Zealander that has resided in the US for 14 years with a 1 year period of living back in New Zealand. My ex husband is from the US. We have an 8 year old son. He was born in New Zealand. We moved back to the States when our son was 5 months old against my wishes. I was trying to save my marriage at the time. When our son was 2 years old we separated and then divorced. I have been living here against my will for the most part. I have approached my ex husband about all of re locating to New Zealand and continuing the current 50/50 legal and physical custody order, but he will only commit if we get back together. This is not an option as he is abusive toward me.
I want to know if there is anything that I can do to file a motion for a move to New Zealand with an offer to have my ex husband go too.
The reason this has become urgent is that I lost my Dad last year and now my Mum’s health is failing. I am an only child, so my Mum is alone and I feel I need to return home to take care of her and also for my son to spend time with his Grandmother in the event that her health further deteriorates.
Thank you
[Name Removed]
You should file a motion requesting permission to move with your son. The motion should be filed in the county in which you presently live.
I have shared parental custody ex moved to Guatemala does not pay support but kids have to go per divorce decree kids do not want to go but scared- father intimidates them – what can I do? he doesnt physically hurt them just mentally & emotionally they are a wreck when they get back to me- they are very scared in guatemala it is not safe- I told the judge and nothing-need help!!! anything I can do?
I am originaly from Japan. I’ve in United state for over 12 years. I am trying to finalize my divorse case with Drug adict hasband.He hasn’t paid any child support . We sepalated since last September. I filed restraining order last Sep.25th. I have sole custody.He was able to see kids with his mother supervised them until March 2010. He hasn’t seen kids (2 and 7 year old)since I requested hair folicle test result from him 3month after trial before he start having parenting time with boys with out his mom suppervising. (which he agreed to take at trial in Dec 15th last year). I asume he is still using. But Even he is a drug dealer and user and ID thief( stolen my ID) never be arested…
So, my question is Do I get to move back to my Own country with minor kids when I want to?with out my x husband agreement ? He hasn’t contact kids or paying anything to boys. Even He doesn’t have custedy he has a right to stop us moving? I don’t have any family here , no support. How difficult to move out with out being a kidnapper.
If I dicide to move, doI need to file or go to the court ?
Please give me some advice!!
Thank you,