Technology has made the world a smaller place. People from different countries meet online, fall in love and marry. Many learn to live with the cultural differences they now share and work together to provide their children with a multi-cultural upbringing, which may include visiting friends and family in your spouse’s country of origin.
All of this makes sense and provides joy to the whole family as long as things are good between you and your spouse. If your relationship ends, the fact that your spouse is from another country could pose some unique custody issues.
Removing the child from the country
If you and your spouse have decided to end your relationship, your spouse might express the following desires:
- To move the child permanently to his or her country of origin
- To give jurisdiction of custody to another country’s courts by moving there
Alternatively, your soon-to-be former spouse may have already taken your child out of the country in an attempt to gain some advantage in custody matters. Fortunately, in most cases, both foreign and domestic laws frown on this choice. The law presumes that the court where the child “habitually” lived receives jurisdiction.
Protection: The Hague Convention
If your spouse gave you no warning and removed your child from the United States without your consent, you may file a petition to have your child returned to this country under the Hague Convention on the Civil Aspects of International Child Abduction. This treaty provides for the prompt return of children under the age of 16 to the country in which they habitually reside.
Nearly 45 countries recognize the Hague Convention, including the following:
- Nearly all countries in Europe
- Some former Yugoslav republics
- Some former Soviet republics
- A few African countries
- A few South American countries
- Some Middle Eastern countries friendly to the west
An attorney can tell you whether the country to which your child was taken recognizes the Hague Convention.
Filing a Hague Convention petition
First, you should know that a foreign court might not have to recognize your petition if your child has resided in the foreign country for at least a year. The theory is that this amount of time gives a child substantial time to assimilate to a new country and culture, and it may not be appropriate to remove the child at that point. Of course, this still depends on several factors. Other defenses your estranged or former spouse may claim include the following:
- You consented to the move
- You failed to fight the move
- You failed to exercise your custody rights
- The child’s safety, welfare or health prevents return
Filing a petition under the Hague Convention as soon as possible provides you with the best option for the return of your child. Other than the return of your child, you may also file such a petition to ensure that both countries respect your custody rights and your access to your child.
Finding legal help
Considering the importance of your international custody issues, no one should advise you to handle these matters alone. Involving a Texas attorney who understands the Hague Convention, along with other international law and treaties that could pertain to your situation could prove invaluable in your efforts.