An international custody dispute can develop when parents are temporarily residing in a foreign country. You might return to the United States with your child, leaving the other parent in the foreign country. You refuse to return the child to the foreign country. Meanwhile, the other parent is demanding that the child be returned to there. Must you return the child?
The United States has signed a treaty with other countries to handle this situation: the Hague Convention on the Civil Aspects of International Child Abduction. The treaty requires the child to be returned to the country of the child’s habitual residence. As you can see, which country the child habitually resides in can be argued by both sides. If your move to the foreign country was temporary, you can argue that the U.S. is where the child habitually resides. By contrast, if you have lived in the foreign country for quite some time, then the other parent can argue that the foreign country is now the habitual residence.
Even if the habitual residence is the foreign country, there are some exceptions when the child does not have to be returned. The child in many cases need not be returned after the expiration of one year, if the child is well-settled 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.
If you brought your child back to the U.S. and are facing an international custody dispute, our firm can help. You might be able to avoid a lawsuit if our firm gets involved beforehand, as we can contact the other parent (or his or her attorney) and explain your rights.
Another scenario with international custody cases is the following. You and the other parent live in the United States with your child. The other parent takes the child to a foreign country and does not return. What can you do?
If the foreign country has also signed the relevant treaty, then you would have to ask a court in that foreign country to enforce the treaty. That foreign court should then order the return of your child to the U.S. Some countries have not signed the treaty (some countries from the Middle East and Africa). In this unfortunate case, you would have to hope that a foreign court would grant you some kind of custody order, although that order can be difficult to acquire.
Preventing your child from leaving the U.S. may be your best protection against an international custody case. (Beware that some parents will say they are taking the child to a foreign country just to visit relatives, but then they do not come back.) You might refuse to obtain a passport for your child, as it requires the signatures of both parents (until a certain age). If your child has a passport, you might seize it and prevent the other parent from using it. You can also request a court order from your local custody court, asking that the other parent be prohibited from taking the child outside the U.S.
If you need help finding and working with a foreign attorney for an international custody case, our firm can assist you. If you and your child live in Western Pennsylvania, we can help request a local custody order which bars the other parent from leaving the U.S. with your child.