SAN DIEGO, CA, November 11, 2011
/24-7PressRelease/ -- Child custody cases are often fraught with emotion, and when one parent seeks to take a child from, or has removed a child to, a different state or country, the stakes can seem even higher. Several guidelines regarding international child custody matters have been adopted by U.S. states and various foreign countries with the intent of ensuring consistent recognition and enforcement of parents' child custody rights across borders.
This article provides an overview of the major rules governing international child custody cases. However, the counsel of a knowledgeable family law attorney is advised whenever child custody issues arise, especially when they involve foreign jurisdictions.
International Child Custody Disputes
International or multi-state child custody matters are generally governed by two doctrines:
- The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been enacted by 49 U.S. states and the District of Columbia and replaces the Uniform Child Custody Jurisdiction Act (UCCJA)
- The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Abduction Convention), which has been signed by 45 member counties
When a child custody dispute involves a parent in another state or country, the provisions of these doctrines are normally used to resolve the matter.
The UCCJEA
The UCCJEA applies to child custody and visitation issues in the U.S. involving more than one state. Articles 1 and 3 of the UCCJEA provide that one state has exclusive and continuing jurisdiction over a child custody matter, and other states are bound to recognize and enforce that state's authority.
The UCCJEA expresses a preference that a child custody determination should be made in the child's "home state," which is the state in which the child has lived for the previous six months. If there is no home state for the child, the preferred state is the state with sufficient connections and evidence available to be considered by the judge.
If the child does not have a home state and no significant connections or evidence exist in a particular state, a state will be designated as the more appropriate forum for the child custody proceedings. Finally, "vacuum jurisdiction" may exist when a child has not been in any state long enough to form any legal attachment to it.
The UCCJEA authorizes courts to make temporary custody orders in emergencies, and it also denies jurisdiction, or authority, to courts in states where the child is living because of a parent's wrongful conduct, such as refusing to return a child after scheduled visitation. In addition, the UCCJEA does not apply to child support matters or adoption cases.
The Hague Abduction Convention
The Hague Abduction Convention is a treaty that may apply in cases where a child was wrongfully taken from his or her place of habitual residence to another country. According to the U.S. Department of Justice, the following conditions must be met for the rules of the treaty to apply:
- The child is under 16 years old.
- The child was a "habitual resident" of a particular country and was removed to, or retained in, another country in violation of a parent's child custody rights.
- Both the country of the child's habitual residence and the country where the child is presently must have signed the treaty before or at the time of the child's wrongful removal or retention.
If these requirements are satisfied, the country where the child is currently located will return the child to his or her country of habitual residence. However, the treaty does not declare that the original country is where the child should rightly be, and it does not decide which parent gains primary custody; instead, it simply addresses where a disputed child custody case should be evaluated by a judge.
If a petition to return a child under the Hague Abduction Convention is made after the child has been in the new country for a year or longer, the parent in the new country may challenge the child's return to the original country. Among other things, the challenging parent may argue that the child is now settled in his or her new environment, that the other parent acquiesced to the change, or that the child is in grave risk of physical or psychological harm in the original country. These circumstances are difficult to prove, however, and a challenge should be undertaken with the advice of an experienced family law lawyer.
For more information contact Boyd Contreras LLP. Telephone: 619-378-4033, 949-242-0656 or visit
http://www.karieboydlaw.com.
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