Parents who are sharing child custody, whether it is joint physical custody or sole physical custody, across borders have an especially difficult situation and one that requires lawyers who are experienced in child custody and visitation under the Hague Convention.
Based in Los Angeles, California, which is a multi-ethnic and multi-cultural community, our lawyers have experience in working with clients from across the globe and their local counsel in countries as diverse as Norway, Thailand, Singapore, Portugal, Spain, Canada, Mexico and the Czech Republic.
The Hague Convention is an international treaty that allows for enforcement of court orders, once they are issued, but it does not provide a way for a court to make determinations of what should be the Child Custody and Visitation under the Hague Convention on the Civil Aspects of International Child Abduction.
When parents share custody of their child or children, whether across the street or across the planet they run the risk that the other parent won’t return the child on time or according to an agreement. When that happens it is called Wrongful Retention – the custodial parent is holding the child in violation of their parenting plan or court order.
Frequently it is a matter of a few hours and in the long run, it is not a big issue, but when the Wrongful Retention becomes days, weeks or months, then it becomes an abduction. The wrongful retention of a child becomes an Abducted Child and the problems with enforcing a return order grow with each passing day.
Police will look to the court order to determine if they can do anything, usually they want to find a way to not act. Police do not like to enforce custody orders whether they are from a local court, another state and definitely not if it is another country. Which is why all court orders need to be registered with a local court in a process known as Domestication for international child custody cases, and for interstate cases.
As experienced lawyers who have worked with international child custody cases, we can help get abducted children back, depending on where they are.
In a sad case of delayed justice, a Canadian judge has dismissed a Petition for return of a child who was kidnapped by his mother when he was five and taken to Canada, and hidden from his father by a fake name and papers.
A decade later, he was found and his father sought his return, but because the child is doing well in school and is settled, and “vehemently” did not want to return to Zimbabwe the court dismissed the petition.
This is the Hague Convention on the Civil Aspects of International Child Abduction in action, protecting the best interests of the child, even in situations that seem filled with injustice all around.
Read the article here.
Japan, the only country in the Group of 8 industrialized nations that doesn’t abide by the Hague Convention on International Child Abduction, has returned a girl to her father in Chicago.
It was truly a matter of constant vigilance by the father, good luck, and an alert Immigration official that created enough pressure on the mother to agree to send the daughter back to her father.
In the world of International Child Custody, those cases involving Japan have been lost causes to date. This case was a fluke and should not be considered a standard practice, but it does show that constant work and hope MAY pay off sometimes.
Read the article here.
When a left behind parent is seeking to have a relationship with their removed child, whether through a wrongful removal or by way of a court order, the Hague Convention on the Civil Aspects of International Child Abduction has a provision allowing for a petition for “access” which is equivalent to visitation or parenting time. HOwever the treaty has no real “teeth” under this provision and the left behind parent, when seeking an order, is essentially at the mercy of the new country and their child custody and visitation laws.
This is one of the reasons why international move-away cases are fraught with such danger for the non-custodial parent, who may find themselves cut off from their child, having to fight in a foreign court for access.
The Hague Convention on the Civil Aspects of International Child Abduction provides for a petitioner to seek return of a child that is being wrongfully withheld or was removed in violation of a parent’s custodial rights.
In countries that are signatories to the Hague Convention, there is still not complete compliance with a return request and estimates are that less than 60% of all petitions result in a return order. Some countries have higher compliance than others, and other countries are too new to the Convention to have a reliable return percentage.
For example, Singapore is a new signatory and there is simply not enough data, on the other hand Israel has been a signatory long enough to establish that a return order is highly unlikely.
Once a return order has been issued, there is still the issue of having the order enforced, and of those, only about 50% are implemented. It is dependent on the country and if they have the mechanisms in place under their local law enforcement to process and return an abducted child.
The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that provides for the return of a child who is being wrongfully withheld or removed from their country of habitual residence.
Thinking of this process as similar to an extradition process is helpful in that the treaty does not, on its own, provide for custody determinations. It provides that a jurisdiciton which has been the habitual residence of the child will make the decision of where the child shall reside and with whom.
The Hague Convention on the Civil Aspects of International Child Abduction also no longer applies to a child who has reached the age of 16, which is limiting in its application because the waiting game is played as a consequence.
Terms as understood in one country are not necessarily applied in the same manner in another country, such as Joint Custody can have vastly different legal meanings.
In short, the Hague Convention on the Civil Aspects of International Child Abduction is not as comprehensive a law as some may want, and more comprehensive than others would want. It needs to be interpreted in light of the particular facts of each child custody case, and the countries involved.
When a child custody dispute arises in the United States of America that has an international element, there is always a question for the moving party to decide whether they want to proceed under the Uniform Child Custody Jurisdiction and Enforcement Act or whether they should proceed under the Hague Convention on the Civil Aspects of International Child Abduction.
There are different remedies and tools available under each, and depending on which side of the child custody dispute a party is on, and what they want to accomplish choosing to move forward with a petition for either access or custody, under either the UCCJEA or the Hague Convention on the Civil Aspects of International Child Abduction can make all the difference in the world.
The UCCJEA has stronger enforcement mechanisms if a pre-exisiting child custody ruling has been made, and the Hague Convention on the Civil Aspects of International Child Abduction has provisions that may be more advantageous if a party is trying to avoid a return to a foreign country.
When a custodial parent relocates to the United States and has a child custody order from a foreign jurisdiction, in order for it to be enforceable in the U.S. it must be registered with the local jurisdiction.
For example, if a Spanish court orders that a father is to have primary physical custody of his son, and he then relocates to Los Angeles that court order needs to be filed with the Los Angeles Superior Court, either in the Central District downtown, or in the appropriate branch district such as West District which covers Santa Monica to Malibu and south to El Segundo and as far east as Beverly Hills.
The process for domesticating a foreign court order is rather simple, we need to have certified copies, and if necessary they need to be translated into english. We then need to have a case opened in the appropriate court and serve a copy on the opposing party and their counsel. After a short period of time, usually 20 days, which gives the opposing party time to object to the order on whatever grounds they have deem appropriate, the court will make the foreign order an order effective for all purposes in California.
In Norway, a child custody case is opened, the court will hear evidence and make a determination of custody, and then close the case.
What this means for child custody on an international level is that Norway and the Norwegian courts, do not maintain ongoing jurisdiction. So that if a custodial parent moves away from Norway, the Norwegian court can relinquish child custody jurisdiction to a foreign court to make orders that are more appropriate on the new habitual residence of the child.
Our firm has litigated this issue in the Los Angeles Superior Court and has coordinated with local legal counsel in Oslo Norway to achieve a positive result for our child custody client.