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As our world becomes interconnected across international borders, more corporations require U.S. citizens to re-locate to foreign countries, and international romance blossoms, issues of child custody, usually “domestic” legal matters, take on international significance.

Consider the father whose job takes him to France for an indefinite term. He moves his wife and family to France and enrolls the older children in the local schools, even as one or more additional children are born in France. When the parents encounter marital difficulties and the wife wishes to separate from her husband, she may simply put the children on a plane with her to return “home” to the U.S. Under international law, however, if the father did not consent to the children’s removal to the U.S., the mother may have abducted the children in violation of international law.

Or consider a child born to an international marriage between a U.S. father and a foreign mother in a country with dramatically limited education and economic opportunities for the child. When the marriage breaks up and the U.S. father takes the child to the States, over the mother’s objection, to access the improved opportunities and standard of living available here, the father has abducted the child under international law.

In the early 1980’s, many countries (including the U.S.) became part of the Hague Convention on the Civil Aspects of International Child Abduction. Countries who adopted the Convention (an international treaty) agreed to standards of process and procedure to address international child custody disputes when a child aged 16 or under has been removed from one country to another without the consent of the parent(s). The parent who objects to the removal of the child must begin legal proceedings within a year to have a court determine whether the child should be returned to the country from which he was taken, or whether the child can stay with the parent in the new country. The Hague Convention has a strong presumption favoring the return of a wrongfully removed child to the country from which he was taken.

The legal proceedings for return of the child are brought in the courts of the country where the child has been taken. For the objecting parent, this means hiring an attorney in the foreign country where the child is newly located to bring a court action for the return of the child under the Hague Convention. In the two examples above, those cases would be brought in U.S. courts, where the children were removed and reside.

The Hague Convention is designed to make the process as speedy and efficient as possible. Within 6 weeks of the filing of the petition, the court must reach a decision on whether the child was wrongfully taken. Like most family law courts in the U.S., the court is not required to stand on formalities of evidence or procedure, but looks to understand the facts as thoroughly as possible, through any relevant means—including video and telephone testimony. Importantly, the custodial rights of the petitioner (the objecting parent) are determined by the law of the country where the child was “habitually resident,” before the child was removed. It is not unusual that these custody rights may be dramatically different than those granted under U.S. law. (Consider, for example, the strict right of exclusive custody of fathers to children in many Middle East countries, where the mother has little or no say in the custody of her child.)

The Hague Convention may refuse to order a return of the child to the country from which he was taken if certain circumstances are proven:

  • The objecting parent had no custodial right to the child.
  • Return of the child would expose the child to physical or psychological harm or otherwise place the child in an “intolerable situation.”
  • Evidence of domestic violence by the objecting parent would indicate a likelihood of abuse toward the child.
  • Return of the child would be to an area of war, famine or disease.

The court may also consider the child’s desires as to where to live, if the child is sufficiently “mature” to make such a determination. As in most child custody disputes in the U.S., the court can also make interim or emergency orders for custody of the child, including directing law enforcement to locate and immediately pick up the child, to surrender passports of the “abducting” parent and child, and to order interim visitation for the objecting parent.

Finally, the Hague Convention requires the “abducting” parent to pay the legal fees of the objecting parent, if the objecting parent prevails to obtain the return of the child to the country from which he was taken.

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