Emerging Trends - International Custody Litigation

INTERNATIONAL CUSTODY LITIGATION

A significant fear of many separated parents, whose spouses or former spouses live or have lived outside the United States, is that the other parent will take a child outside the U.S. to defeat U.S. custody laws. News accounts of such cases make clear the difficulties these cases present. Often, for example, foreign custody laws are very different from U.S. laws, sometimes favoring the parent of a particular gender.

To address these concerns, many countries have adopted a treaty known as the Hague Convention. The treaty seeks to expedite international custody disputes, for example, by requiring that a court dealing with such a dispute act within six weeks of the date a custody proceeding began, or explain its reasons for delay.

A U.S. parent has two options in seeking a child’s return from another country that has adopted the Hague Convention. One is to present the parent’s case in writing to the U.S. State Department’s Office of Children’s Issues in the Bureau of Consular Affairs. The second is to initiate proceedings in the country where the child is located. The parent may request either 1) the return of the child; or, 2) “arrangements for organizing or securing the effective exercise of rights of access to a child.”

Generally, a child’s citizenship is not relevant to a custody issue under the Convention. More important is the child’s “habitual residence,” or what one court called “the place where he or she had been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.”

An important statute of limitation affecting such disputes is that the parent seeking return of a child must formally act within one year of learning the child is with the other parent in violation of a custody decree, unless after that year the child is still not settled in the new country. In addition, another barrier under the Convention to a child’s return would a judicial finding that “there is a grave risk the returned child would be expose to physical and psychological harm or otherwise placed in to an intolerable situation.” A United States Court of Appeals has determined that a “grave risk of harm” can exist only where 1) returning the child would put the child in imminent danger prior to the resolution of the custody dispute, e.g. returning the child to zone of war, famine or disease, or 2) if there is evidence of serious abuse or neglect, or extraordinary emotional dependence, and if the court in the country of habitual residence is incapable or unwilling to give the child adequate protection. A child of sufficient “age and degree of maturity” may also object to being returned to the U.S.

Because of the complexity of such issues and the variance in how countries address custody issues, international custody litigation, even under the Hague Convention can be very difficult. Such litigation is even more difficult, or even impossible, where one of the countries, and there are many, is not a party to the treaty. Custodial parents must act carefully and quickly, therefore, in these often-tragic cases.

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