When parents divorce, one of the hot-button topics in their split is often centered around custody. This issue can get particularly complicated when one parent has business or family ties in another country.
What happens if your spouse takes your child to another country (legally or not) and refuses to come back, despite the existing custody order you have in place? Here’s what you need to know:
Determining which country has jurisdiction may not be easy
Generally speaking, a custody order from the child’s home state will control what happens in any court inside the United States – but the harsh reality of your situation is different. Foreign courts are under no obligation to follow U.S. laws, nor do they necessarily have to respect a U.S. custody order if they’re disinclined to do so.
This can get incredibly difficult to parse if one parent actually resides in the foreign country in question and the other parent is U.S.-based. The foreign-based parent may not believe that it’s fair for the U.S. court to hold sway over the situation if the court in their own country is more favorable to their case and willing to accept jurisdiction.
The Hague Convention may offer some recourse over parental abductions
Sometimes, parents refuse to even try to work things out legally. They’re willing to engage in parental abduction and simply flee the country to maintain full custody of their child or children.
In situations where a parent has absconded with the child to a foreign country illegally (without the court’s permission or even against the rules of the existing custody order), the Hague Convention may be helpful.
If the country your children are in is a signatory to the Hague Convention, you can invoke this treaty to ask for a hearing. If the child was wrongfully removed from their country of habitual residence (the United States), the treaty requires the child to be returned.
Unfortunately, the definition of what makes for “habitual residence” isn’t always clear, and the longer a child stays in a foreign land the more likely that country could decide that it should retain jurisdiction of the case. That means you need to act quickly to resolve an international custody dispute.
