Child Custody Across National Borders
The recent swearing-in of our newest Commander in Chief had left no small number of people openly talking about emigrating from the United States. While that’s a much more difficult task than many people realize, it can happen — which leads us to wonder, what happens if someone who shares custody of a child should move to a different country? Or if someone in the middle of a divorce does the same?
The short answer it “it’s crazy complicated.” The slightly-less-short-but-still-definitely-too-short answer is this:
Jurisdiction is Far and Away the Most Important Thing to Establish
You’ve probably heard arguments about jurisdiction on Law & Order or CSI. The question of jurisdiction — that is, which courts have the right to try a case — is absolutely the most critical question of any international custody dispute. The problem is that there are multiple different laws that govern which country gets jurisdiction, and not all countries obey the same laws.
The law in the USA is the Uniform Child Custody Jurisdiction and Enforcement Act. In the EU, the law in force is the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children About half of the territories in the world, including the US and EU in cases where the respective Union’s law doesn’t apply, follows the Hague Convention on the Civil Aspects of International Child Abduction. But that excludes some very large and important countries and regions, including:
- China,
- India,
- Brazil,
- Iran and Saudi Arabia,
- Most of Africa,
- Most of the Pacific Islands,
- Most of the Caribbean Islands, and
- Much of Central Asia.
Each country in these areas has either no law dealing with international custody disputes, or has a law that applies only within their own borders. This is the latest — but still probably already out-of-date — summary report.
Needless to say, if your ex has moved to any of these areas with your child, the chances of getting a fair hearing in regards to your custody dispute are (mostly) much worse than if they have moved to a country that follows the Hague Convention.
You Need More than a Typical Family Attorney
Gucciardo Family Law isn’t the law firm to go to if your ex has swept your child off to Sao Tome or Kyrgyzstan. You need to find an attorney who is familiar with civil international child custody law, and its criminal-court twin brother, international parental kidnapping. There are several in our area.
Your Best Bet is to Keep the Child Inside the US
If you have even a hint that your spouse may be preparing to take your child across a national border — even if it’s just over to Canada — immediately use the Children’s Passport Alert System to prevent the State Department from issuing a passport to your child. Once a passport is issued, your child can be removed from the country — but if you get on top of it, you can make sure the custody battle doesn’t become a whole lot more complicated overnight.
Too much information?
We focus exclusively on family law matters so we are always available to answer your questions and help.
Leave a Reply