International Child Custody Laws and Jurisdictional Challenges

Child custody disputes can be emotionally overwhelming and legally complex. However, custody issues can be even more nuanced when a parent lives overseas. Since they can involve the laws of different countries, and working out intricate parenting plans, international child custody matters are often much more complicated than domestic custody issues. Whether you or your child’s other parent live or work in another country, understanding jurisdiction and the challenges that can arise is critical.

What are the Challenges in an International Child Custody Matter?

When a child lives in the United States, the laws of the state in which the child has last resided for a period of six months or more usually would govern any child custody matters that arise. Parents often assume that if their child is born stateside the laws of that jurisdiction would govern any international child custody disputes that arise — but this is not always the case. When it comes to international custody issues, not only might a parent encounter language barriers and cultural differences, but they could also have the challenge of facing a different legal system.

Every situation is unique. Even if a child is a U.S. citizen, custody and visitation may still be determined by the laws of a foreign country. For instance, if the child spends the majority of their time in a different country, their courts would typically decide these matters. In addition, even if a custody order was obtained in the U.S., this doesn’t mean that it would be enforced internationally since other countries are not obligated to adhere to the laws of the United States.

What Happens if a Child is Wrongfully Taken to Another Country?

The 1980 Hague Convention on the Civil Aspects of Child Abduction, sometimes called the Abduction Convention or just the Hague Convention for short, even though there are many Hague Conventions, is meant to protect children from being taken across international borders by one parent without the consent of the other. It also provides a legal framework for countries to work together to resolve international child abduction cases and ensures that custody disputes are resolved in the country where the child usually resides. If a parent wrongfully takes a child across international borders, the other can initiate proceedings under the Hague Convention to seek the return of the child to their home country.

However, filing a petition under the Hague Convention does not always guarantee the return of a child. First, the child must have been removed to another member country of the Hague Convention. While many countries are members, many are not. Second, a parent must be able to demonstrate that the child was a habitual resident of a Hague Convention country. They must also show that the removal violated their custody rights — and they would have been exercising their custody rights, except for the removal. A court may deny the return of an abducted child in the event any of the following circumstances apply:

• There is a risk the child would be exposed to physical or psychological harm
• The child objects to their return (if they are of sufficient age and maturity)
• The child is settled in their new environment (this only applies if the petition is brought a year or more after the wrongful removal)
• The parent seeking return consented to the child’s removal
• Returning the child would violate fundamental human rights and freedoms
• The parent seeking return was not exercising custodial rights at the time of the child’s removal

In some international child custody cases, a parent may wish to relocate to another country for work or to be closer to family. While a parent cannot simply remove the child from the United States without the other’s consent (or the court’s permission), they could ask a court in the child’s home jurisdiction to allow the child to move with them.

Parenting Plans in International Child Custody Matters

The logistics of a parenting plan involving an international child custody matter will likely look much different from one where both parents live close to each other. Parents will need to consider whether it is safe for the child to visit the other parent outside the country or it would be more practical for the parent to travel to visit with the child. They will also need to think about the child’s travel arrangements and who will cover the costs. In addition, communication should be addressed to ensure each parent can stay in touch with the child when they are not with them.

Mediation can be a highly effective tool for resolving international child custody disputes and creating a parenting plan. It gives parents the opportunity to find creative solutions that fit the unique needs of their family that might not otherwise be available when a case is litigated in the courtroom. Using mediation can also help ensure the best interests of the child come first and foremost.

Contact an Experienced International Child Custody Attorney

When dealing with an international child custody matter, it’s crucial to have an attorney on your side who understands the complexities of these cases. The attorneys of Strickler, Platnick & Hatfield have the experience and knowledge necessary to assist clients with a broad scope of international family law matters in the Washington D.C. metro area and abroad. To learn more about the services we offer, contact Strickler, Platnick & Hatfield to schedule a consultation.