International Child Custody and Hague Convention

In our increasingly mobile world, it is not uncommon for one or both parents to have ties with a country other than the one in which they are currently living with their child. Unfortunately, those global connections can increase the risk of one parent removing the child to another country without the other parent’s permission.

International child custody and abduction issues can be complex and costly to resolve, whether the child is a few miles away across the border with Canada, or across the globe. Here is what parents need to understand about preventing and resolving international child custody matters.

How International Child Custody and Abduction Matters Arise

There are a few scenarios in which international parental abduction cases arise. One of these is when one parent, without advance agreement, leaves for another country with the children. Another common scenario is for one parent to take the children on an international trip (for example, to visit grandparents overseas) with the other parent’s agreement.

However, once in the second country, the parent finds reasons to extend the trip, or refuses to return altogether. The decision to remain in the other country may have been made before departing the United States, or after the parent arrived abroad with the child. Less commonly, the parent in the United States may give permission for the travel, then falsely claim after the other parent’s departure that it was a parental abduction.

If you are part of an international family, you may believe that your partner would never remove your child to another country without your permission; hopefully, you are right. Unfortunately, circumstances can change. It is important for international families to anticipate the possibility of a child being removed or kept from their home country, and take measures to prevent it.

Preventing International Child Abduction

It is generally easier to prevent a child from being removed to another country than to have a child returned to the United States once they have been removed. Therefore, parents in international families should be proactive in protecting their children and their parental rights, even if the possibility of abduction seems remote.

The first line of defense is a thorough, clearly-drafted child custody order. You can agree to prevention measures in your divorce settlement agreement or custody agreement. The order should state that Michigan is the child’s “home state” as defined in the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA). The order should be explicit that the child is not to be removed from the state of Michigan or from the United States. The order may also provide that law enforcement and airline personnel are authorized to enforce the prohibition on removal. The order should specify which parent is to hold the child’s passport, or for a neutral third party to have custody of the passport.

If your child does not yet have a passport, you can also enroll them in the Children’s Passport Issuance Alert Program (CPIAP) through the United States Department of State. Because both parents are required to sign a U.S. passport application for a child under 16, a parent of a child in CPIAP will be notified if the other parent tries to obtain a passport for the child. You do not need to have custody of your child to enroll him or her in the program.

You should be aware that a U.S. citizen child with dual nationality may be able to get a passport from the other country and may not need a U.S. passport to travel abroad. In this situation, you can contact the foreign embassy or consulate in writing and request them not to issue your child a visa or passport. Include any supporting documentation, such as a custody order, and copy the U.S. Department of State on the correspondence. The foreign country is not compelled to honor your request, but it may choose to do so voluntarily.

There may be circumstances in which you are willing to allow your child to travel to a foreign country, but want to protect against him or her being kept there longer than agreed. In those situations, a travel consent letter defining the terms of the travel, including the date the child is to be returned to the home country, may be useful. Consult an experienced international custody attorney regarding effective travel consent letters and their limitations.

Risk Factors for International Abduction by a Parent

In any co-parenting relationship involving an international component, you should also be alert to risk factors for international child abduction. Documenting risk will also be helpful in the event you need to persuade a judge to include protections against international abduction in a custody order.

The following are known risk factors for parental abduction to another country:

  • The other parent has made a previous abduction attempt or threat to abduct the child
  • The other parent is a citizen of another country, and has strong cultural or emotional ties to the home country
  • The other parent has no strong ties to your child’s home state, other than the child
  • The other parent has many family members or friends in their home country
  • The other parent has no strong financial reason to remain in the child’s home state or the United States. For example, the parent is able to work remotely, is financially independent, or is unemployed
  • The other parent has recently quit a job locally without seeking other local employment
  • The other parent has engaged in activities suggesting plans to travel abroad, such as obtaining a passport, school or medical records, terminating a lease or selling a home, closing a bank account, or liquidating assets
  • The other parent has a history of marital instability, domestic violence, child abuse, and has tended to be uncooperative with you regarding parenting decisions.
  • The other parent has seemed jealous about your subsequent dating or romantic relationships
  • The other parent has a criminal record

While the presence of one or more of these factors does not guarantee that the other parent is planning an abduction, it does mean that there is an increased risk. Take all possible preventive measures, including consulting with an experienced international custody attorney.

The Hague Convention and Responding to International Custody Issues

The unfortunate reality is that most people don’t take steps to prevent an international child abduction, and instead find themselves scrambling to respond to one. The Hague Convention on the Civil Aspects of International Child abduction is a treaty that creates a mechanism for the return of a child abducted from one member nation to another. Over 100 nations, including the United States, are signatories to the treaty. If your child was abducted to a non-member nation, it may be even more difficult to arrange for their return to the United States.

Whether or not your child was taken to a country that is a signatory to the Hague Convention, you must respond immediately to an abduction. Do not allow the other parent to lull you into a false sense of security by saying that they will send your child home after a week or so. Swift action will help to defeat any claims by the other parent that you agreed to the child remaining in the other country.

You should file a judicial action for the return of your child not only in your own state court, but also in the jurisdiction to which the child has been removed. If you don’t know where your child has been taken, you should still file a motion for the return of your child in the domestic court. In addition, you should notify the U.S. Department of State that your child has been unlawfully removed to, or kept in, another country.

The assistance of an experienced child custody attorney is essential for the successful resolution of an international child abduction. These cases are time-sensitive and complex, often playing out in the courts of two or three countries. With no less than your child’s future at stake, there is no time for an attorney who is inexperienced to get up to speed.

As you can imagine, litigating a child custody dispute in the courts of multiple countries is very costly. It may be possible to resolve an international child abduction through alternative dispute resolution such as Collaborative practice, minimizing the need for court involvement, but the initial response must be decisive action in the courts in order to preserve your rights and those of your child.

If you are concerned about the possibility of your child’s other parent abducting them to another country, or if your child has been abducted and you need help, please contact NSSS&B without delay.