The most complex and controversial legal conflicts are those involving child custody. A child custody dispute becomes even more emotionally heated when it takes place in a global setting. Both state and federal laws in the United States govern Child custody issues. Determining which nation has jurisdiction over an international child custody issue and whose laws should be used is often a challenge. The Los Angeles Divorce Lawyer can assist you in pursuing your child custody and visitation rights if you are involved in an international child custody dispute.
International Child Custody Explained
Typically, international child custody disputes are disagreements between parents with competing countries. For example, one parent could plan to relocate with the children to another country without the other parent's consent. Most international child custody disputes arise due to the following:
- Student or work visas
- Differing citizenships
- Long term travel
- International job opportunities, or
- Several other scenarios
Under the above circumstances, if both parents recognize the United States court's authority to resolve the dispute, the court will treat the case as a typical custody dispute. However, the problem could arise if one parent raises a jurisdictional contest. In this case, the judges will be compelled to adopt the rules and guidelines laid down by federal law and international agreements. The California state courts, on their own, do not have the authority to negotiate with foreign courts.
Determining The Country’s Laws That Should Apply
In the United States, custody disputes are often decided by the state where the kid resides. However, another nation is not bound to accept American law regarding international child custody disputes. A foreign court can decide not to follow the current United States custody order. Even though the parents do not reside in the same nation, the child may frequently live with both parents. Determining which country has jurisdiction over the child custody dispute may be difficult.
A parent from a foreign country could file a child custody lawsuit in their home country. However, the other parent in California feels they should change the venue for the action. In this situation, the parent in the foreign country can seek to transfer the child custody lawsuit by filing an action in their home court. The parent from the foreign country can only succeed depending on the laws in their country and the court handling the matter.
The Bodies Of Law That Govern International Child Custody In The United States
Two major bodies of law govern international child custody in the United States. These bodies are:
The Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA)
This is a federal statute that assists courts in different states in the U.S. to ascertain who has jurisdiction over an international child custody dispute. This statute demands that courts in California abide by the laws of the child's home country if it is decided that the U.S. has no jurisdiction.
The Hague Convention
This is an international treaty that handles international child abduction. This treaty comes in handy, mainly where parents are involved in child abduction. It offers a judicial protocol for returning a child to their home country of birth for custody resolution.
When a foreign nation presents an international child custody case to California, the state will first confirm if the said nation has signed The Hague Convention treaty. If the foreign country has not signed The Hague Convention treaty, the court will decide who has jurisdiction over the case. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is responsible for this determination.
According to the UCCJEA, a child’s ‘’home’’ is where the child was raised for six months before the child custody disagreement. Therefore, the court could apply the foreign nation's statutes during the dispute resolution if it establishes that it is the child's home. However, the court is not obligated to follow the foreign nation’s laws if they violate human rights. On the other hand, the United States will make custody decisions based on its laws if the child's home is in the U.S.
If the foreign country has signed the Hague Convention, the convention will only act if the child has been illegally abducted from their habitual residence or home country. In this case, the nation that files a lawsuit has two options:
- Request an arrangement for the other parent to have continued access to the child
- Demand the immediate return of the child
However, the problem arises when the two nations have signed onto the convention. Often, foreign courts do not agree and, at times, fail to comply. Foreign courts do not comply because there are no repercussions for not adhering to the convention.
Abduction Laws And International Child Custody
Often, when a couple divorces or separates, custody disputes arise. For example, one of the parents could decide to retain the child in a foreign country or wrongfully remove the child from their home country without the other parent's consent. This is one of the most complex international child custody disputes. In this case, the parent who remains could invoke The Hague Convention protection to help resolve the case.
Typically, the convention does not offer sufficient rights to custody rights; it primarily handles the legal process of returning the child to other signatory countries. The parent seeking to have the child returned must file a local court custody action. He/she could do so by requesting the court to invoke The Hague Convention if there has been a wrongful removal of the child to a foreign nation or a violation of custody rights. However, the court will first examine if both countries are signatories to The Hague Convention and the country that has the authority to hear the case.
Often, The Hague Convention demands that the signatory nation, their courts, and administrative bodies act immediately in all proceedings to return the abducted child. The convention also demands that signatory countries make the final determination within six weeks of the action filing. The petitioning parent must provide sufficient evidence that the child was a ‘’habitual resident in a signatory nation for the court to invoke the provision. He/she must also prove that the child was ‘’wrongfully’’ retained or removed from a different signatory nation.
The Hague Convention does not provide the proper meaning of a ''habitual resident'' in international child custody cases. However, the courts often look to the child's ordinary residence before the wrongful removal occurs. This is a fact-based decision based on the following factors:
- The settled nature of the family before the facts that gave rise to the action before the retention or removal
- The history of the child’s locations and residences — this is where the child's caregiver, school, and home are located
- The shared intentions of the parent
’’Wrongful Removal Or Retention’’
Typically, ‘’wrongful removal or retention’’ is the removal or retention of the child by one parent without the consent of another parent. According to The Hague Convention, several factors constitute wrongful removal or retention of a child. The factors include:
- When the act of removal or retention of the child violates the custody rights of one parent according to the laws in the state in which the child was habitually resident before the removal or retention
- At the time of removal or retention, those rights would have been exercised or were exercised but for the removal or retention. These rights of custody could arise because of administrative or judicial decision, by operation of law, or because of an agreement having legal impact according to the law of the nation of habitual residence
Defenses To The Allegations Of Wrongful Removal or Retention Of A Child
According to The Hague Convention, several defenses are available against the allegations of wrongful removal or retention of a child. They include:
- The return of the child would subject the child to violation of basic human rights and fundamental freedoms
- There is a significant risk that the child's return could expose them to psychological or physical harm or otherwise put them in an intolerable condition.
- The child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the petitioner, and it is appropriate to heed that objection.
- It is more than one year since the wrongful removal or retention and the date the petitioner began a judicial or administrative proceeding for the child's return.
- The petitioner had acquiesced or consented to the removal or retention
- The parent seeking the return of the child did not exercise custody rights at the time of the removal or retention
International Child Custody And Move Away Requests
The court could sometimes receive an international move-away request after finalizing a divorce. Generally, a move-away request is a petition for custody modification. The modification allows a custodial parent to transfer the child to a specified country of their parenting agreement. Like in a standard move-away request, the court will look into the merits of various factors to decide in the child's best interest. The factors that will be considered include the following:
- The current custody arrangement, including who the custodial parent is
- The distance of the move
- The relationship between the two parents, including how each communicates and if both are willing to facilitate the child’s relationship with the other
- The reasons for the proposed move
- The child’s relationship with both parents
- The child’s age
- The child’s need for stability and continuity
- The child’s wishes if he/she is old enough
Additionally, if the child is transferred from the United States, the court will consider the following:
- Any ongoing jurisdictional problems with the foreign nation — for example, whether the foreign country was part of The Hague Convention
- The distance of the move and what it would mean in terms of travel costs, time difference, jet lag, and obstruction of contact with the child’s other parent
- The cultural difference between what the child has in California and the experience in the foreign nation and how the disruption will affect the child
Preventing Child Abuse In An International Child Custody Arrangement
While most international child custody cases are contentious, the child's well-being is the first concern of most parents. Unfortunately, it is not always guaranteed that a child will be secure with a parent. The court could intervene to protect the child in cases where a parent has a record of domestic violence. The court could also intervene when one parent suspects the other parent could be placing the child in an abusive environment. The court takes allegations of child abuse in international child custody seriously, and the perpetrator could face severe punishment.
Child abuse is not limited to causing a child physical harm or emotional distress; it also includes causing the child psychological harm. Generally, the court likes to maintain the parent-child relationship intact, but it could deny you child custody or visitation if it is in the child's best interest. For example, in international child custody, the court could prohibit you from accessing the child if you are an abuser.
If one parent suspects that the other parent is abusing the child, he/she can file a petition for an order eliminating or limiting the custody rights of the co-parent. The court could issue a temporary order if it finds substantial evidence.
In other cases, the court could set a custody order to allow both parents to spend time with the child without causing harm to the child. In this case, the court could order supervised visitation. If you are subject to a supervised visitation order, you can only have time with your child in the presence of another adult. Supervised visitation order is different from other orders. It permits you to visit your child at a designated time and location, with someone else supervising the interaction. A supervised visitation order dictates that you must be under the supervision of another adult any time you visit the child.
The period a supervised visitation could take varies based on what the court considers necessary for the child's safety. The court could order supervised visitation for a set period or indefinitely. Indefinite supervised visitation will continue until the court decides that the supervision is no longer necessary. The court will also lift the supervised visitation on the following conditions:
- If the parent subject to the supervision shows that he/she has successfully rehabilitated any concerning conduct
- If the factors that caused the court to issue the supervision are no longer present
However, some situations could compel the court to terminate your rights to custody of the child. The court could order you to undergo treatment or counseling if it believes your anger issues will be resolved. You could also face criminal charges in cases with substantial evidence of child abuse.
International Child Custody Mediation
Child custody disagreements can be emotionally draining, particularly in situations that involve separation or divorce. Child custody mediation is essential in these cases, where both parents meet with a mediator. A mediator often tries to evaluate the facts of the dispute and come up with recommendations about how custody should be shared. Mediation aims to encourage parents to discuss and agree on custody sharing. Generally, a mediator is an impartial person who objectively evaluates the dispute without involving emotions.
In most cases, mediators are attorneys licensed to handle child custody cases. These attorneys have also handled family law for a long time and can offer insight based on their experience. However, each parent needs to be represented by an attorney regardless of whether the mediator is an attorney. The attorney's responsibility is to guide the parent on the terms of any custody agreement resulting from the mediation.
Each parent is supposed to discuss their opinion about custody with their attorney before mediation and go into mediation with defined expectations. It is also necessary for both parents to be open to suggestions and go into mediation with open minds. Often, mediation helps to reduce hostility and animosity between parents. It is also easier to resolve custody cases than to engage in protracted litigation. Mediation is often confidential since it is conducted without a court reporter. This enables the parents to speak freely without fear of victimization. During litigation, most people do not feel free to express their viewpoints and concerns, unlike during mediation.
Find A Los Angeles Divorce Attorney Near Me
International child custody cases are more complex than local child custody cases. Even when the parents are eager to negotiate a custody arrangement, these cases are frequently difficult to resolve. The good news is that you do not have to fight an international child custody battle alone. You should speak with a lawyer familiar with child custody and visitation issues if you have an overseas child custody dispute. We at the Los Angeles Divorce Lawyer are known for our top-notch customer service and successful resolutions of all family law matters. Our lawyers will assess your situation and recommend the best line of action for you. Call us at 310-695-5212 to schedule a consultation with a lawyer.