International family law matters can create complex legal challenges, particularly in custody battles involving children with dual citizenship. How do U.S. custody courts handle situations involving children with dual nationality?
"Dual citizenship" means an individual is legally recognized as a citizen of two countries simultaneously. Children acquire dual citizenship through various circumstances, including:
- Birthplace: Many countries, including the U.S., grant citizenship to anyone born on their soil (jus soli).
- Parentage: A child may gain the nationality of their parents if the parents are citizens of another country (jus sanguinis).
- Naturalization: If a child or their parents become naturalized in a new country, the child might retain original citizenship while gaining new citizenship.
A child with dual status enjoys the rights and responsibilities of both countries, including travel, education, and health care access. They could also be subject to the laws of both jurisdictions.
Jurisdiction in International Custody Matters
Jurisdiction is of primary importance in international custody cases. When separated or divorced parents live in different countries and disagree about custody or relocation, the key legal question becomes: Which country has jurisdiction to decide the case?
Determining jurisdiction in international custody matters involves several steps:
- Determining the child's "habitual residence" by examining their primary spoken language and the place where they live with their family, attend school, and receive medical treatment.
- Identifying whether the countries involved are part of the Hague Convention.
- Filing petitions for custody or return in appropriate jurisdictions.
- Navigating conflicting legal systems, cultural norms, and enforcement mechanisms.
If a child has dual citizenship, both countries might have a theoretical claim to jurisdiction. However, the court that can establish the child's habitual residence will usually take the lead. Courts must also consider laws from both countries and any relevant international treaties.
The Hague Convention and UCCJEA
Two legal structures, the Hague Convention and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), govern jurisdictional issues related to international custody.
Before 1980, "forum shopping" was a major problem. One parent could abduct a child to their country of habitual residence, where custody decisions are typically made, and there was no legal mechanism to return the child.
Established in 1980, the Hague Convention on the Civil Aspects of International Child Abduction, or "Hague Convention," was designed to prevent one parent from gaining an advantage by relocating a child to a country they believe will be more favorable to their custody claim. Signatory countries agree to honor each other's custody laws, expedite the return of abducted children, and protect custody rights.
However, not all countries are signatories. Some non-signatories include Afghanistan, Algeria, Angola, and Bangladesh. Additionally, several signatory countries, including Brazil and the Dominican Republic, are considered non-compliant with the Hague Convention and do not fully implement its provisions.
Enforcing custody or return orders becomes much more challenging in cases involving non-signatories or noncompliant signatory countries.
The UCCJEA and the Convention are often applied together in cases involving countries that are signatories to the Hague Convention. The Hague Convention focuses on the return of abducted children to their country of habitual residence. At the same time, the UCCJEA ensures that, once returned, custody decisions are respected and enforced across U.S. jurisdictions and potentially with compliant foreign orders.
In the United States, the UCCJEA ensures that only one state at a time has jurisdiction over a custody case to avoid conflicting orders. While the UCCJEA primarily applies within U.S. states, it also recognizes international custody orders under specific conditions.
For example, a U.S. court can recognize and enforce a foreign custody order under the UCCJEA if the following criteria are met:
- Substantial Conformity with U.S. Standards: The foreign court exercises jurisdiction in a manner that substantially conforms to UCCJEA standards, basing its decisions on similar jurisdictional principles, such as the child's habitual residence or a legitimate parental connection to the country.
- Due Process: The foreign legal process must respect basic principles of due process, including giving both parents notice and the opportunity to be heard.
- Public Policy Exception: A U.S. court may refuse to enforce a foreign custody order if it is repugnant to the state’s public policy. For example, if the order discriminates based on gender or religion, or endangers the welfare of the child, the U.S. court may choose not to recognize it.
- No Conflicting U.S. Orders: A U.S. court is more likely to enforce a foreign custody order if no conflicting custody order exists from another U.S. jurisdiction with valid authority.
If a foreign custody order meets these criteria, a U.S. court can register the order for enforcement, issue enforcement mechanisms (including law enforcement assistance) to ensure compliance, and help prevent abduction or concealment by applying the same remedies available for enforcing U.S.-state custody orders.
Notably, enforcement doesn't mean the foreign court retains jurisdiction for future modifications. Depending on habitual residence and other factors, the U.S. court will typically take over ongoing jurisdiction if the child now resides in the U.S.
How U.S. Courts Determine Custody for Children with Dual Citizenship
U.S. courts apply a "best interests of the child" standard when making custody decisions, regardless of citizenship. When the child is a dual citizen, the court considers:
- The child's primary residence and school enrollment.
- Each parent's ability to provide stability.
- The strength of the child's ties to each country.
- Any history of abduction or international travel concerns.
If an international element exists, the court may also assess whether the custody decisions of other countries need to be recognized under international agreements or state law.
Can a Non-U.S. Citizen Get Custody of a Child?
Yes, U.S. courts can and do award custody to non-U.S. citizens. Parental citizenship alone is not a deciding factor. Instead, the court focuses on the parents' relationship with the child and their ability to provide a suitable living environment.
Sometimes, a non-citizen parent may face immigration challenges, such as visa issues, that could impact custody logistics. While immigration status does not automatically determine custody, it can influence the court's decision regarding stability and ability to care for the child.
For example, a parent facing deportation or without legal status may have a harder time convincing a court that they can provide long-term care. That said, undocumented parents are not automatically disqualified from gaining custody or visitation, especially if they are otherwise capable and have strong bonds with the child.
Does the U.S. Enforce Foreign Child Custody Orders?
A court in another country may legally determine custody or visitation. U.S. courts may choose to recognize and enforce foreign child custody orders, especially if they are consistent with U.S. public policy and the child's best interests.
As mentioned above, under the UCCJEA, foreign orders are treated similarly to those from another U.S. state, provided due process was followed and the foreign court had proper jurisdiction.
Can a Mother Take a Dual-Citizen Child Out of the Country Without the Father's Consent?
It depends on the custody agreement. If the parents share joint legal custody, one parent typically cannot unilaterally remove the child from the country without the other's permission or a court order. Doing so can be considered parental abduction under both U.S. and international law.
Parents often need to obtain written consent or court approval for international travel, particularly when the destination is a country outside the Hague Convention.
Navigating international custody disputes is incredibly complex. A lawyer experienced in international family law can:
- Help determine which court has jurisdiction.
- Assist in filing or responding to Hague Convention petitions.
- Coordinate with foreign legal counsel.
- Prepare legal documents in compliance with international treaties.
- Represent the client in hearings and negotiations.
Moreover, your custody lawyer can work to enforce or challenge foreign custody orders and help ensure compliance with international visitation arrangements.
If you have any questions about custody for children with dual citizenship or other international custody matters, our experienced custody attorneys are here to help. Contact us today. 212.682.6222 or Connect Online.