International Custody Law

The following is intended to provide helpful information about international custody issues and international child abduction. The discussion is general, and exceptions apply. It is meant only to give a sense of the legal area, not to be exhaustive. Consult an attorney for details pertaining to your situation. Do not rely on this information alone, as your situation is unique from other situations. This firm waives any liability resulting from your relying on the information provided. Again, simply consult an attorney for a proper handling of your case.

International custody issues almost inevitably arise when two parents do not live in the same country. If you and the other parent are agreeable to custody arrangements, a lawyer can help you prepare a custody agreement. This agreement will protect your custodial rights, on one hand, and will likely be useful in a foreign country where the other parent lives, on the other hand. If you and the other parent are currently in conflict over custody arrangements, then our firm can assist with mediating and resolving that conflict out of court. If a resolution out of court is not possible, then our firm can help with litigation in court.

When it comes to international child abduction, you may find yourself in two different situations. First, your child may be abducted from you and taken abroad by the other parent. Second, while visiting a foreign country, you may take your child from the other parent back to your native country, refusing to return the child because it is in the best interests of the child to stay with you. In both cases, the crucial issue you face is jurisdiction. The laws of your native country and court decisions are not automatically recognized abroad and therefore are not directly enforceable abroad. Moreover, foreign laws are not automatically binding in your home country. If you have good legal grounds in your country not to return your child, the other parent residing abroad may be able to sue you in his or her country. The situation could arise where your home country has issued a custody order in your favor, and the foreign country of the other parent has delivered an order in the favor of the other parent. Which court order has priority?

Different countries have entered into treaties to avoid these problems. The United States of America has entered into one such treaty called the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter Hague Convention).

The Hague Convention helps a left-behind parent get access, including visitation, to the abducted child abroad. It can also force return of the abducted child. The countries that are party to the Hague Convention have agreed that a child who is habitually resident in one country and who has been removed shall be promptly returned to the country of habitual residence.

For those parents who refuse to return the child, the Hague Convention gives legal grounds for lawful retention of the child. The child in many cases need not be returned after the expiration of one year, if the child is settled well in his or her new environment. Retention of the child may also be permitted, if there is a grave risk that return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The court also has discretion to deny return of the child, if the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take into account the views of the child.

Only certain countries have adopted the Hague Convention. Some of those countries include: Argentina, Austria, Bahamas, Belize, Brazil, Canada, China, Columbia, Cyprus, Denmark, Ecuador, Finland, France, Germany, Honduras, Iceland, Ireland, Israel, Italy, Malta, Mexico, Netherlands, Norway, Panama, Romania, South Africa, Sweden, Turkey, and United Kingdom. Other treaties and legislation cover other countries. You should contact a lawyer for more details.

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