International child custody is a very specialized area of law that may involve multiple courts in multiple countries, laws of different nations, as well as international treaties. As cross-border marriages proliferate, so do international family law disputes: while to a parent, a move-away case within the United States might appear no less daunting, removal of children into a foreign jurisdiction requires a very specific skillset from a lawyer.
In a globalized world, international marriages are becoming increasingly common. The Economist called cross-border marriages “one of the world’s biggest social trends,” pointing out that marriages involving spouses of different nationalities are no longer limited to the wealthiest members of society.
For example, in 2010 more than 10% of all marriages in South Korea included a foreign spouse, in France the number was 16% for the same year, and in Spain marriages involving citizens of different countries reached 22% in 2009. Because the laws of multiple nations are implicated by definition, legal complexities are inherent in such marriage from its inception. For instance, the place of marriage has effects on its validity: recognition of a marriage conducted outside of the United States is not automatic.
So, when a dispute about child custody arises in the context of an international marriage, issues arise that are not usually present during a divorce between two American nationals. Although, an American might just as well decide to relocate abroad, and move the children with her, leaving a spouse or domestic partner behind.
In a situation that involves children removed or retained in a foreign country, there are several options available:
- Bringing a custody suit into a domestic court
- Asking for the child’s return in a foreign court
- Using procedure under the Hague Convention on International Child Abduction
THE HAGUE CONVENTION ON CHILD ABDUCTION
Recognizing the growing number of international child abductions, in 1981, the United States became a signatory state of The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“Hague Convention” or “Hague Convention on Child Abduction”). This convention became the law domestically in 1988, when was implemented by federal legislation, specifically the International Child Abduction Remedies Act (“ICARA”).
The Act is important, no less because it sets forth the governmental policies on the issue of wrongful removal of children from the country, and the courts are compelled to adhere to it. The general idea is that nobody should be allowed to gain custody merely because they succeed to remove the children out of the reach of national courts.
The primary goal of the Hague Convention is “to secure the prompt return of children wrongfully removed” or retained in any of the signatory states. The removal is considered wrongful, when it violates custody rights of another person, under the laws of the country, where the child habitually resides. This means that the outcomes of an international child custody dispute will vary widely, depending on where the family lived before the dispute arose. But, Saudi Arabia, for instance, is not a signatory of the Hague Convention, so Saudi courts are not required to respect a US child custody decision. However, the number of the accessions to the Hague Convention on International Child Abduction is steadily increasing. There were 86 parties to the Convention as of 2011. One of the most recent members is Japan.
There is one important caveat: the Hague Convention only applies to children under sixteen years of age. The success rate of return for applications made under the Convention was 46% in 2008. Of these, more than half were court ordered. This reflects only applications made through so-called Central Agencies that were created in each contracting state for the purpose of coordination of international child custody matters. The contact information for the Central Agencies in every member state can be found in the country profiles on the Hague Convention website.
The Convention does not prevent individuals in a custody dispute from filing directly with the courts or other institutions in the country, where the children are physically located. Such filings were not included in the success rate statistic reported under the Convention. An argument in favor of choosing to proceed through a Central Agency might be, as the American Bar Association points out, that the procedure under the Hague Convention is accelerated, because there is only a limited number of issues to be decided:
- Was the removal of the child “wrongful” (meaning did it violate somebody else’s custodial rights)?
- Did less than one year elapse since the wrongful retention or removal of the child?
- Would the return of the child harm the child’s mental or physical wellbeing?
Under Article 12 of the Convention, if the procedure for the minor’s return was initiated when the child has already lived out of the country more than a year, it should not be dismissed, “unless it is demonstrated that the child is now settled in its new environment.” However, the one-year benchmark does have significance.
CALIFORNIA LAW & INTERNATIONAL CUSTODY
Under the Uniform Child Custody Jurisdiction and Enforcement Act, for the purposes of determining jurisdiction in a child custody case, a California court “shall treat a foreign country as if it were a state of the United States.” This means, that a decision about child custody made in a foreign court will be given full force in California, unless it would violate fundamental principles of human rights.
This generally means that California courts will be able to make an initial child custody determination, if:
- The child has lived in California within six months before the filing, or lives in California now. Should the child no longer lives here; a parent must continue to reside in the state.
- A foreign state has declined to hear the case, the child or one of the parents continues to have a significant connection with California, and substantial evidence regarding the case is available here.
“Significant connection” and “substantial evidence” are terms of art, meaning that whether or not these conditions are fulfilled requires careful case-by-case scrutiny by the court. The six-month period is critical to retain jurisdiction in California for a move-away, whether within the United States, or internationally. Hence, the decision on how to proceed, might depend on the timing of the filings in the custody dispute.
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