Exploring Out-of-Country Custody Disputes

  • Parental kidnapping is among the biggest fears in out-of-country child custody situations.
  • Treaties are in place to retrieve children in specific countries.
  • Through moving to a different country, a child's relationship with one parent is at risk.

When a co-parent is on the job hunt, it can make the other parent nervous. You never know where the other will land, and how that will affect custody, visitation, and the general well-being of your child. If they are in another state, it can create travel issues during weekends and holidays, but those pale in comparison to the visiting and scheduling problems created when a co-parent lives in another country.

One of the biggest fears for the co-parent that is located in the United States is parental kidnapping. Given the distance and variances in foreign laws, it is an understandable fear. However, there are specific guidelines to the laws involving moving a child to another country, amid divorce and custody issues. According to the American Bar Association, the first step in sorting out international child custody is finding a lawyer who has experience in the manner.

Legal details

Due to child abduction and custody jurisdiction law, a parent is not supposed to gain any practical or legal advantage by taking a child to a new state or country. However, this is not always the case, depending on the situation or the parents involved.

There is a substantive law on relocation that varies between states and between both the mover and other parent. International moves fall under a greater microscope.

There are specific treaties that allow the United States to garner input on international moves involving child custody: the Hague Convention on the Civil Aspects of International Child Abduction and the Uniform Child Custody Jurisdiction and Enforcement Act.

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention) is the primary civil law mechanism for parents seeking the return of their child or children from other treaty partner countries, according to the United States Bureau of Consular Affairs. There are 45 countries that currently have a participating treaty in the Hague Convention on the Civil Aspects of International Child.

Distance factors

In most state, when one party files for divorce, a filing is imposed that includes prohibitions about relocating a distance from the other parent or out of the court’s jurisdiction until a determination has been made on custody and placement of the child, according to Dad’s Divorce.

Thus, when a parent takes a child overseas, they are typically in violation of court mandates, depending on the state guidelines.

If a parent wishes to move, the judge may grant them the opportunity to do so, but it would be under the stipulation that the child would have to stay behind.

‘Beneficial evidence’

According to Dad’s Divorce, the only way a judge would be convinced that it would be beneficial for the child, would be if there was substantial evidence corroborating that claim.

According to The Huffington Post, some of the things courts look into are in regards to the distance of the move, the reason for the move, the child’s age, the ability to effectively co-parent, where the child would like to live, and the child’s relationship with each parent. These factors give the judge all of the information that they need to effectively render a verdict.

However, the court also would consider what would be the consequences of the child’s relationship with the parent that is left behind.

Parental kidnapping

The Uniform Child Custody Jurisdiction and Enforcement Act discourages interstate kidnapping by non-custodial parents. Due to the lack of established custody, many parents believe that they can take their children without facing prosecution, when the reality is the opposite.

It is in the child’s best interest to allow the courts to sort out parental custody and visitation without the fear that a nervous parent will take their child and run.

Travel honestly

Many parents might exit the country under the guise that they are taking their child on vacation. This can entail making actual vacation or travel plans without the consent of the other parent, and when the parent tells the child about the exciting vacation and they go and tell the other parent, there is an inevitable blow up about to occur that could result in legal action curbing everything. It is in the best interest of all parties that any traveling and vacationing is done in honesty and communication. Uprooting a child’s life under less than forthcoming circumstances only makes everything worse.

The child in this scenario is facing a no-win situation, according to The Huffington Post. On one hand, a judge could grant the move and the noncustodial parent will miss out on the day-to-day life of their child. On the other hand, the judge could reject the move, and the child would miss out on spending time with the parent that is moving away. Either way, a parent will lose time spent with their child.

It’s important to explore every possibility in making child custody work for the parents and the children involved. Just because a great opportunity exists in another country for a parent, does not mean they should pursue it. When you become a parent, your needs take a backseat to the needs of your child, and you should want them to. Splitting a relationship between a parent and child could result in being resented for the entirety of your child’s life. It’s better to try and make custody and co-parenting work right where you are, for your child’s sake.

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