International Child Custody Disputes: A Primer

When parents split up, it’s often difficult to determine child custody. This is especially true when one parent relocates to a different city or state.

When a parent relocates to a completely different country after a divorce, however, child custody becomes an extremely complex situation.

Difficulties of International Child Custody

Traditionally, family law — including divorce and child custody — is handled differently in each state, but new federal family laws have been emerging given the increasing frequency of interstate and international child custody disputes.

While state legislation typically governs child custody jurisdiction, the federal Parental Kidnapping Prevention Act was enacted in 1980 to prevent parental competition over child custody.

The Parental Kidnapping Prevention Act was also enacted to deter parents from abducting children. In a heated custody battle, it is unfortunately not completely uncommon for a parent to abduct a child in an attempt to win custody rights or even just disappear with the child. The act protects the right of the state issuing a child custody decree, and it is also aimed at resolving the issues that often arise in interstate and international child custody disputes.

Abduction & Laws Regulating International Child Custody

Unfortunately, a parent who takes a child to a different country can gain jurisdictional advantage by reopening litigation in another country. The parent is then awarded custody, while the parent in the child’s original country of residence is completely excluded.

This is a form of kidnapping, and many countries realize this. This is why nations all over the world have adopted the Hague Convention on the Civil Aspects of International Child Abduction. The Convention consists of the following objectives: “To secure the prompt return of children wrongfully removed or retained in any Contracting state; and to ensure that the rights of custody and access under the laws of one Contracting state are effectively respected in the other Contracting states.”

The return of the abducted child to the country of his or her “habitual residence” is the goal of the Convention. That is, the country that the child had lived and grown up in should be the place with the right to decide the outcome of a custody dispute.

However, the Hague Convention can only come into play if both countries involved in the international child custody dispute have adopted the Convention. The United States is party to the Convention, but if the child has been taken to a country that is not party, the “left-behind” parent must rely on the new country’s law to settle a custody dispute — and the court often does not take into account the abduction of the child.

How Can Child Abduction Be Prevented?

Prevention is the best way to deal with abduction within international child custody disputes.

If you are planning a marriage to someone from another country, it may serve you will to draw up a prenuptial agreement that considers children and custody arrangements in case the marriage does not last.

If you are already married and encountering problems, legal advice should be sought right away in terms of international child custody and the protection of all parties involved.