A crucial piece of the puzzle when dealing with an international child custody case is the standards or law of the jurisdiction in which the child is currently residing. Residency determines jurisdiction in most cases.

The concept of residency is a fluid one, in some places, such as the United States of America, residency is based on duration of time in a jurisdiction. For example, under the Uniform Jurisdiction and Enforcement Act, a child’s residency is determined by where they have spent the previous six months, generally.

In some nations, it is dependent on a more flexible standard of ‘habitual residence’ which may look to where the child goes to school, attends religious services or spends the night. It can look to the overall situation rather than a bright line definition of 6 months.

Singapore uses the more flexible standard, and a society that has a highly mobile and transient population of ex-pats who come and go based on work, that makes sense for them.

In California when one parent has Primary Physical Custody and wants to leave the United States for a foreign country, the court must hold an evidentiary hearing after a child custody evaluation. The court must apply the rule as set down in La Musga and Burgess, along with the additional factors as laid out in the Condon case (62 Cal.App. 4th 533)

Under Condon, the moving party must demonstrate to the court that the de facto termination of visitation would be in the child’s best interest. Further the court can require as a condition of the move that the moving parent post a bond, and require a concession that the California courts will continue to hold jurisdiction over the case.

The drafters of the Uniform Child Custody Jurisdiction and Enforcement Act expected that it would be primarily used in the context of interstate cases among the United States of America, however, they anticipated that there would be a need for international application of the law. As we have become a more transient globally, the situation of one state having to interpret and enforce a foreign country’s child custody determinations has become more prevalent.

As a consequence the drafters of the UCCJEA put in place a provision that allows a reviewing court of the United States to either implement a foreign court order, or should the “child custody law of the foreign country violate fundamental principles of human rights” the US state court can opt out of enforcing the foreign determination.

In general US courts apply the UCCJEA standards and respect foreign nations determinations in child custody cases, and they apply the same standards that one would expect if the case was an interstate matter.

The UCCJEA – Uniform Child Custody Jurisdiction and Enforcement Act was created to allow for the recognition of another state’s child custody determination. It applies in the United States of America and is based on principles of Comity – which is the recognition and respect accorded to another jurisdiction’s decisions and judgments.

In America this is necessary as we have 50 states, each of which has slight variations on child custody law, although the best interests of the child is to prevail. The UCCJEA is also used to prevent a litigant from forum shopping to get a better judgment in their child custody battle.

The Uniform Child Custody Jurisdiction and Enforcement Act also recognizes transnational determinations. A foreign countrty is to be treated under the UCCJEA as if it were a state of the United States for enforcement purposes. This can be a beneficial tool depending on whether or not a parent has a prior court order, or wants to attain one.

The fifth defense under the Hague Convention on the Civil Aspects of Child Abduction to a return petition by a left-behind parent is that a return would violate the protection of human rights and fundamental freedoms (the Article 20 defense).

This is frequently used in the cases of international child custody disputes where domestic violence and spousal abuse have been present. In those cases where an abducting parent has fled a violent and abusive enviroment, to force a return under the Hague Convention on the Civil Aspects of Child Abduction would be to make someone choose their own safety over that of their child’s relationship with an abusive parent, a parent who is possbily abusing that same child.

This section also deals with issues of due process and notice, under the fundamental freedoms penumbra.

The Hague Convention on the Civil Aspects of Child Abduction has a built in time limit for the bringing of an action. As a defense to an abduction or wrongful retention case, a parent who has moved from one country to another can assert that it has been over a year since the move and the child has not become settled in the new environment.

This one year limit will apply if the left behind parent has taken no action to seek a judicial remedy in either the home country or the new country, essentially if a parent waits too long their remedies under the Hague Convention on the Civil Aspects of Child Abduction will disappear.

In child abduction cases the Hague Convention allows for an abducting parent to present several defenses, the third main defense is that the petitioner, the left-behind parent who is asking the court to return the child to a home country, has not been using or utilizing the custodial time they were granted in the underlying action. Additionally if the left-behind parent has acquiesced or agreed to the removal or retention then the abducting parent has a valid defense.

If a parent is not exercising their custody rights at the time or removal or retention they do not have a firm footing on which to stand in asking a court, under the Hague Convention on the Civil Aspects of Child Abduction to be asking that the child be returned to a home country.

Also, if the left-behind parent has agreed to the move, either in writing or in conduct, then they have no right to ask later that the child be returned under the Hague Convention on the Civil Aspects of Child Abduction.

International Child Custody Cases involving the Hague Convention on the Civil Aspects of Child Abduction allow for a child of sufficient age and maturity to make their wishes known. This is the second defense to a wrongful retention or parental abduction case.

Every court has their own rules and opinions on when a child is of sufficient age and maturity to express their desires to the court. However in California that age is generally between the age of 12 and over, depending on the maturity of the child.

In Los Angeles, cases have allowed children to testify through a specially appointed lawyer to represent them, calleda Minor’s Counsel. they have also spoken with the judicial officer in chambers, in open court or with a court appointed child custody evaluator or mental health professional.

In an international child custody dispute, if one parent abducts a child to a Hague Convention country, one that is a signatory to the Hague Convention on the Civil Aspects of Child Abduction, the first main defense is that of Grave Risk of Harm, either physical or psychological, to the child.

What is a grave risk of harm? this is a very fact specific issue, in some cases it is clearly female genital mutilation, but not necessarily male genital mutilation. Returning a female child to an African Nation, one that pratices female genital mutilation such as a clitorectomy would likely qualify if the child was in Los Angeles or California. However returning a male child to Israel would likely not be a grave risk of harm, at least not based on male genital mutilataion.

The Hague Convention on International Child Abduction also looks to the psychological harm that could be done to a child as a defense. This is a harder element to prove, as psychological abuse or emotional abuse can be subjective.

The third clause of the first defense is an intolerable situation that warrants denial of a return petition under the Hague Convention on Child Abduction. Just what an intolerable situation is, will be very fact dependent.

If a parent abducts a child to a country that is a signatory to the Hague Convention on Civil Aspects of Child Abduction there are five main defenses to a return petition:
1) the existence of a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
2) the child objects to return and is of sufficient age and maturity to appropriately consider the objection;
3) the petitioner was not acually exercising custody rights at the time of the removal or retention;
4) more than a year has elapsed from the date of the wrongful removal or retention until the commencement of the judicial proceeding seeking an order of return, and the child is now settled in 5) the new environment, or
the return would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms (the Article 20 defense).

In the United States the grave risk of harm and the Article 20 defenses must be established by the legal standard of Clear and Convincing Evidence.