- Child Custody
When a parent removes a child from the U.S, what recourse does the remaining parent have?
As our world continues to grow smaller and more interconnected, marriages involving dual citizens are increasingly common, resulting in international custody battles.
Once an action is filed in Colorado, state law dictates that neither parent may remove the child from the state of Colorado without agreement of both parties or a court order. Additionally, United States Federal law prohibits a parent from unlawfully removing a child from the United States or unlawfully retaining a child in another county with the intent to obstruct another parent’s custodial rights. If despite the laws a child is removed a parent may work through both state and federal courts to get orders for the return of the child.
The Hague Convention on the Civil Aspects of International Parental Child Abduction
If a child has been abducted to a country that is a signatory to The Hague Convention on the Civil Aspects of International Parental Child Abduction (“the Convention”), the Convention will apply and should be utilized. The Convention currently applies in eighty-one countries, including nearly all of Europe and other westernized countries, a few countries in Africa and South America, and the pro-Western margins of the Middle East. The Convention is not concerned with substantive custody questions or even with jurisdiction and therefore will not dictate who ultimately should have custody of the child. The Convention provides for the immediate return of children under the age of 16 who are taken from their home county in violation of custody rights. The Convention does not define custody rights in the same terms as courts in the United States. Custody rights are defined as“any right to visitation with the children.” A violation of a parent’s custody rights will be found if the visitation has previously been exercised or would have been exercised, had the child not been wrongfully removed.
In some circumstances the Convention will not apply – for example if the child was abducted more than one year before action was taken to bring him or her back to their home country. In such circumstances the judge will look to how well the child is adjusting to their new environment and will make decisions more like a traditional custody hearing - considering the best interests of the child. Additionally, if the U.S. parent acquiesced, consented, or failed to exercise their custody rights, or there is a grave risk of physical or psychological harm to the child if returned, the Convention may not apply.
When the child has been abducted to a country that is not a signatory to the Hauge Convention, negotiations with the country of abduction is the best option for the parent left behind. Such negotiations are often long and may result in legal proceedings in the abducting county to determine custody.
At Jorgensen, Brownell & Pepin, we understand the stress involved in child custody matters, especially those crossing international borders. Our attorneys are experienced in all types of custody disputes. When you entrust our team with your case, you will never feel alone.