When a couple with children decides on divorce, child custody is usually the most emotional issue they must resolve. However, when the spouses are originally from different countries and plan to live in their nations of origin after they dissolve their marriage, child custody deliberations become infinitely more complex. If you are contemplating an international divorce, you must be aware of the potential pitfalls in child custody litigation and the steps you can take to better ensure a favorable outcome. In this article, we’ll discuss the most common child custody issues we’ve encountered with international couples in our divorce practice.
Where to File for Divorce
Where you litigate your divorce matters. If you have a choice of courts, you have to consider the laws under which they operate to see where your custody issues are likely to get the most favorable treatment. U.S. courts apply state law in divorce cases, but there is little difference among the states when it comes to the guiding principle for custody decisions: the best interests of the children.
U.S. courts generally hold that it is in the child's best interest to have stability and maintain a living standard they would have enjoyed if the parents had remained together. These factors can help an American parent who is trying to keep a foreign national parent from taking the children to a country where the culture is radically different, and where they would not enjoy similar economic advantages or security.
If you are required to litigate your divorce overseas, you could find yourself at a significant disadvantage, simply by appearing as a foreigner. In the worst case, you could have to litigate in the court of a country that is hostile to Americans.
Filing First and Without Warning
It’s generally advisable not to blindside your spouse with divorce papers. Doing so can exacerbate tensions and undermine settlement negotiations, leading to drawn-out, expensive litigation. But your circumstances might force you to play hardball. If you have a foreign national spouse, and your children of the marriage are dual citizens, you might have reason to fear your spouse will abscond with your children. Once your kids are overseas, and your spouse files for divorce in a foreign court, you’re going to face an uphill fight to win custody and repatriate your kids.
If you fear your children’s other parent might abduct them and take them outside the United States, there are steps you can take:
- Petition a New York court for an order prohibiting your children’s travel outside the country. The order should include a demand that the other parent surrender your children’s passports to you. This does not provide complete protection, since the United States does not have exit controls or require two-parent authorization for children’s international travel. Furthermore, under the Western Hemisphere Travel Initiative, minors can exit the country for certain destinations without passports.
- Please provide copies of your court order to law enforcement and advise them about the possibility of international parental child abduction.
- If, despite your efforts, you believe an abduction is occurring, contact law enforcement to request the entry of your children’s information on the National Crime Information Center missing person’s list.
- Contact airport police and airlines to advise them of the court order preventing international travel for your children.
- Contact the U.S. State Department’s Office of Children’s Issues as soon as possible at 1-888-407-4747 from the United States or +1-202-501-4444 from overseas. This office can tell you whether your spouse has attempted to get U.S passports issued for your children.
When you file first for divorce, you can get a temporary custody order that prohibits your children’s other parent from taking them out of the country. This ensures that the New York court will hear your child custody case.
Does the Hague Convention Apply?
Without international cooperation, parents could kidnap children with impunity, taking them to foreign countries and beyond the reach of an American court. Fortunately, the Hague Convention protects parents and their children in international child custody disputes. The Convention is a plethora of treaties to which 91 nations have signed on. Part of the Convention is a treaty covering The Civil Aspects of International Child Abduction, which ensures the return of a child under the age of 16 to the country of habitual residence following wrongful removal by a parent.
The Convention determines which country can exercise jurisdiction if there is no existing court order. If you are contemplating an international divorce, you must be aware of the potential pitfalls in child custody litigation and the steps you can take to ensure a favorable outcome better. Under the Uniform Child Custody Jurisdiction and Enforcement Act, you can petition a US court to modify a foreign child custody order. If the U.S. court deems jurisdiction proper, it can override a foreign order. You can also file under the Uniform Child Custody and Enforcement Act to enforce a New York custody order on foreign soil.
If a parent absconds with the children to a country that is not part of the Hague Convention, that country may not require parents to comply with US court orders. Similarly, if the parent flees to a non-signatory nation, you will face difficulty enforcing a child support order. In such cases, you might hire an attorney in a foreign country and pursue a remedy through its court system.
Relocating Children to a Foreign Country
When one parent wants to move a great distance away with the children, the relocation is going to impact the other parent's rights negatively. Distance and travel expenses make it nearly impossible to maintain frequent, meaningful contact. These problems are exacerbated when the relocation is across borders. Not only would such a move disrupt the noncustodial parent's parenting time, but that parent's ability to participate in the children's upbringing is diminished.
If a cross-border relocation is allowed, the children would be raised in a different culture, perhaps according to values at odds with those of the noncustodial parent. If the parents have religious differences and disagreements about their children's faith formation, the custodial parent could hold total sway over the children's religious lives.
Courts in the United States will seek to balance inequities by granting joint custody, basically giving one parent custody during the school year and the other parent custody for vacation periods. This can be burdensome for a noncustodial parent who, because of a demanding career, has limited opportunity to assume the role of a primary caretaker. Fair resolutions require detailed and creative planning and mechanisms for enforcement when and if a parent violates the terms of the agreement.
Because of the situation's stakes and complexity, you must consult an experienced international divorce lawyer, who can provide reliable advice on child custody matters. At Bikel Rosenthal & Schanfield, LLP, we have ample knowledge, based on decades of experience, to help you pursue the best possible results. Call us today.