International Custody Disputes
International child custody disputes are complicated due to the intersection of family laws from multiple countries. When contested child custody claims are in courts from countries that are signatories to The Hague Convention on the Civil Aspects of Child Abduction, convention procedures dictate the resolution of the international child custody dispute. The Hague Convention is an international agreement created with the goal of returning children wrongfully removed from any of the signatory states. The Hague Convention was created in 1980 and has steadily been gaining signatories since then. To date, 96 nations are members to the convention, including all of North America and most of Europe. The Hague Convention is not substantive custody law, meaning custody rights of parents will not be resolved under the Convention. Rather, it is a process to ensure that custody issues are heard in the appropriate court. Where countries are not signatories to the Hague Convention, other procedures must be used to resolve the matter, including intervention by the United States State Department and use of the Uniform Child Custody Jurisdiction Enforcement Act.
In simple terms, under the Hague Convention, the removal of a child is considered improper if the child was a habitual resident of another signatory country prior to their removal. In the case of two parents with equal custody rights over a child, the consent of both parents is generally necessary in order for a child to be removed from the home country.[1] When a dispute arises concerning custody of a child between countries that are signatories of the Hague Convention, the courts of the country to which the child is brought is obligated to return the child, if that court finds the return to be appropriate. Under the Hague Convention, the return proceedings are to last no longer than six weeks.
While the presumption under the act is that a child should be quickly returned to the country in which he or she was a habitual resident prior to his or her removal, there are limited exceptions. If a party with custody rights over a child either consents or later acquiesces to the removal, then there may be an argument against returning the child to the original home country. A child may also successfully object to his or her own return if they have reached an age and degree of maturity to make a reasoned decision regarding their future. Further, if one year has elapsed since the removal, and the child is settled in a new environment, then a court may properly decline to return them. A court may also decline to return a child if the custody law of the state from which the child was removed violates human rights, or if the child’s return would put them in grave risk of physical or psychological harm.
Illinois International Custody Attorneys
International child abduction is a delicate situation, and great care must be taken in order to safeguard the best interest of the child. Peskind Law Firm is an experienced child custody law firm available to prosecute and defend claims under the Hague Convention for parents whose child was abducted, either improperly brought to, or removed from the United States. A parent who feels that their child was wrongfully removed should seek immediate advice from Peskind Law Firm, and an appropriate consular authority (such as the United States Department of State) in order to ensure the child’s speedy return. Contact Jenna Adams at Jenna@peskindlaw.com to schedule a consultation with a lawyer.
[1] Elisa Perez–Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session (“Explanatory Report”), 71, at 447–48