Child custody is always a delicate process but becomes even more complex when it is across borders. Understanding the basics of how child custody works for international disputes, particularly The Hague Convention, can help protect you and your children in the event of an international dispute.
While many parents in a child custody dispute can reach a joint parenting agreement, some parents cannot, and if one parent takes a child across state lines or international waters without the other parent's consent, it can create a toxic and even dangerous environment for the child. While transporting a child out of state without the other’s parent’s consent may sound rare, most child abductions are family abductions, not stranger abductions, and the EU's Missing Children Europe estimates that around 100,000 children are illegally removed every year worldwide.
The Hague Convention is an international agreement between 90 countries that provides safeguards for children in an international abduction. In the event that one parent illegally abducts and removes a child internationally, the other parent has procedural rights to The Hague Convention safeguards. Specifically, The Hague Convention provides this parent with quick-acting proceedings to ensure a decision is made within six weeks. It is important to note, however, what qualifies as a proceeding under the Hague Convention.
First, The Hague Convention may only be used for cases between two country members of the agreement. For example, if one parent in the United States removes their child to Australia, the other parent may file under The Hague Convention because both countries are members of the Hague Convention.
Second, the parent filing under The Hague Convention must show the child was a "habitual resident" in their country before removal. A "habitual resident" is the child's regular residence. The court will look at factors like the child's history in that residence, what both parents intended to be the child's residence, etc. It is also essential to know that certain affirmative defenses remove the habitual resident requirement, such as spousal abuse, child neglect or cruelty, and consent.
Third, the parent filing must show the child was "wrongfully removed" to the other, non-residence country. The court will consider factors like the child's age and maturity, the level of risk the child is currently in and would be in if returned to their habitual residence, etc.
To best protect yourself and your children, keep a history of violence or threats, a history of any past refusals to obey court orders, keep your children's passport handy, and make sure your custody and visitation orders are clear.
If you have any further questions regarding international child custody or The Hague Convention, please feel free to reach out to The Harris Law Firm. Call (303) 622-5502 or contact us online to request a consultation.