Often times, questions arise in a child custody case when the child is removed from the country of the child’s habitual residence or the parents’ residence. For the parent who remains in the original locality, there is legitimate concern regarding whether custodial rights will be enforceable, or, if that parent will be able to have rights and access to their child or children.
In this article, we will address three principle questions:
- When is a parent permitted to move away to another country with their children?
- What constitutes child abduction by a parent?
- What happens if a child is abducted and transported internationally by a parent?
When is a parent permitted to move away to another country with their children?
In cases involving child custody, the presumption may be to award joint custody to both of the parents. The time that each parent spends with the child is governed by the custody agreement.
If one parent wants to move to a different location and take their child with them, often called a “move away case,” generally they must follow their custody agreement or any relevant laws of the locality in which the court order was entered. The details of each locality’s laws will vary, but generally they require the moving parent to give ample notification to the other parent. The parent opposed to the move has the right to object if they think the relocation will result in a significant reduction of the quantity and quality of time they are entitled to under the operating custody agreement.
In the event of such an objection, the matter is referred to a judge for a decision whether to permit the move and under what parameters. The judge’s primary concern is in the best interests of the child, although other questions will also play a role:
- What are the stipulations of the current custody arrangements?
- How far will the proposed move separate the child from the other parent?
- What effect will that distance have on the custody rights of the remaining parent?
- What is the reason for the move?
- What is the working relationship like between the parents in general?
- Is the child old enough to have a voice in the decision?
- What will the impact be on the child’s education, social life, and extracurricular activities?
Once the judge approves the move (or if the second parent raises no objections), a parent may then legally relocate with their child, even to an international destination.
What constitutes child abduction by a parent?
If one parent relocates with their child against the express wishes of the second parent and in violation of any court orders, that action alone does not constitute a abduction. An improper move away like this only becomes a true abduction when that parent also actively conceals the child from access by the other parent by withholding location information, shutting down communications, and disallowing visitations.
If a parent relocates without consent of the other parent or the courts, by concealing the child, and takes them across a state line or international border, this may be considered a federal offense. Severe consequences may happen, which make legal representation all that much more crucial.
What happens if a child is taken and transported internationally by a parent?
If a parent takes their child and removes them outside of U.S. sovereign territory, the process of locating and returning that child, and prosecuting the parent (if this is an unauthorized relocation), can be difficult. Each country has its own laws that govern child custody and movement, which may or may not offer the same protections and resources that our laws do in the United States.
In 1980, the Hague Convention On The Civil Aspects Of International Child Abduction tried to provide some uniform guidelines to member nations on how to address this issue. The goal was to “protect children internationally from the harmful effects of their wrongful removal or retention…as well as to secure protection for rights of access.” It stipulated that any child under the age of 16, who was taken from their country of “habitual residence” and in violation of one of their parent’s rights of custody, was to be returned to their country of “habitual residence” in as expeditious a manner as possible.
The 1980 Hague Convention was a significant step forward in protecting the wellbeing of children and the rights of their parents. Through the cooperation of member nations, many thousands of children who have been internationally abducted by a parent have been located and returned.
The 1980 Hague Convention also has its limitations. To date, only 93 countries have signed this treaty – less than half of the total countries of the world. Furthermore, not all of the countries that signed the treaty are in compliance with it. The 1980 Hague Convention also does not provide any enforcement powers between member nations.
The U.S. government ratified the 1980 Hague Convention in 1988. The International Child Abduction Remedies Act (“ICARA”) and the International Child Abduction Prevention and Return Act “ICAPRA”) both establish U.S. compliance with the 1980 Hague Convention and the procedures by which cases are processed. The International Parental Kidnapping Crime Act (“IPKCA”) made it a federal offense to remove a child from the U.S. in order to obstruct a parent’s custody rights.
The U.S. Department of State (DOS) has established their Office of Children’s Issues, which maintains a 24/7 hotline (1-888-407-4747 from the U.S. and Canada; + 1 202-501-4444 from outside the U.S.) for rapid response to even a suspected parental child abduction. A call to that number can activate, for instance, the U.S. Customs and Border Protection (CBP), which can apprehend the parent and child as they are attempting to board their international flight. Through this office those cases may be opened to work through other 1980 Hague Convention member nations to recover a child that has already departed the country.
Preserve your custody rights.
If you suspect that your child may be subject to a possible relocation across international borders by the other parent, or if you are defending your right to move your child across borders, legal representation is the next step to protect your rights. The experienced lawyers at Hoover Krepelka will guide your case for the best possible outcome.
International and domestic laws are complex, and resolving on your own may be too high a risk. Having an experienced attorney who understands the law and can aggressively work through the systems in place to get any necessary court orders, make contacts with enforcement agencies, and push for a successful resolution can expedite and legally resolve such a case.
At Hoover Krepelka, we have experienced lawyers who specialize in custody cases, including international child abduction and relocation cases. We bring experience to you, to preserve your custody rights and the wellbeing of your child.
Contact Our Experienced Attorneys Today
For all your child support and child custody needs, as well as any other issues relating to family law, know that you can rely on the family law attorneys at Hoover Krepelka, LLP. Call or Contact us today at (415) 947-7600 to schedule a consultation, and learn more about how our San Jose lawyers can assist you in achieving your goals.
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