Custody disputes, when they are in a single case, in a single jurisdiction, are complicated. At the end of a dispute, there is a judgment, which defines what parenting time will be for each parent, and who has decision making authority, which is the essence of what having “custody” means. Having decision making authority does not mean that authority is absolute. It does not mean that you have the authority to move with the child without giving notice to the other parent and the court, and usually getting court approval for a move.
Sometimes a parent leaves with the child and moves to another state anyway, and seeks legal protection in the other state. All states in the United States have some version of the Uniform Child Custody Jurisdiction Enforcement Act, which sets out clear guidelines as to which jurisdiction’s orders control. Generally, the state in which the general judgment was established retains jurisdiction and that state’s court order regarding custody and parenting time control any other state’s ability to modify that first judgment, so long as at least one parent or the child continue to reside in the originating state. The purpose of having a uniform jurisdiction enforcement act is so that parents do not easily have the option of looking for another state court to give them a “second opinion” as to who should have custody and parenting time. Such laws promote stability for children so that they are not taken legally out of the jurisdiction solely because one parent did not like the result in the first custody and parenting time judgment.
But what if it isn’t another state within the United States, but another country? What happens then?
There are many countries who have signed the Hague Convention treaty, which agrees to an international standard for cooperation between different countries for mutual enforcement of laws in many different areas, including an enforcement of custody orders from countries that are signatories of the Hague Convention treaty. The purpose of being a Hague Convention signatory country in the area of custody disputes is the same purpose as the uniform jurisdiction enforcement statutes within the United States: not to have conflicting court systems giving conflicting orders. You should be able to rely upon that country to enforce the originating country’s legal judgment of custody and parenting time. If the other country is not a Hague Convention signature, you cannot rely on the country to enforce your custody and parenting time order. Japan, for example, is not a Hague Convention treaty signatory. If a Japanese national takes a child out of the United States against a US order of custody and parenting time, the only legal redress to get the child returned is to ask a Japanese court to make a decision under Japanese laws, which favor Japanese nationals in establishing custody and parenting time. There are not many legal options to getting the child legally returned to the United States, and so long as the parent keeps the child in Japan, the US court order cannot be enforced.
If the country to which the child is taken is a Hague Convention treat signatory, the preamble and Article 1 of the treaty sets out the principles of the Convention, which include:
- The interests of children are of paramount importance.
- Children must be protected from the harmful effects of abduction.
- Children must be promptly return to the originating country.
- The law relating to the “rights of custody and access” in the originating country must be respected in all other Convention countries.
- The court in the originating county is the most appropriate forum for determining the relative merits of custody and parenting time disputes.
Custody doesn’t only mean “legal custody”, it also means the right of physical access to the child for parenting time. If you are the legal custodial parent, and the other parent has parenting time, this does not give you the ability to take the child to another country against the order of the originating state.
The question doesn’t necessarily end there, however. There are exceptions to the enforcement of the Hague Convention treat. Some exceptions are grave risk of physical and psychological harm; grave risk of an intolerable situation; the child’s objections to being returned to the country of origin. It is not enough to assert that the child would be in grave risk of harm, because there is an expectation that the legal systems of other countries will protect children from harm. There may be specific circumstances in which the originating country has a war going on, such that the legal systems are not able to function effectively, or that the laws of the country do not reflect the principle that the best interests of the child are paramount. So long as the country of origin make the best interests of the child paramount, and provide mechanisms to allow that to happen, the appropriate result should be to return the child to the country of origin and allow that country to take action to protect the child from threat of grave harm alleged by the parent who has left the country of origin.
Similarly, a grave risk of an intolerable situation does not mean that if the abducting parent who removed the child illegally from the country of origin can gain protection from the second country if the abducting parent would be arrested upon re-entry to the originating country, especially if the criminal charges relate to the abduction of the child in the first place. Another example might be that the abducting parent committed a serious crime in the country of origin, such as murder, and would be arrested upon return, leaving the child without a familiar parent to provide care for them. A parent cannot create the intolerable situation through their own actions, then ask the second country for protection from accountability for their actions, particularly actions resulting from the abduction. An intolerable situation that might be considered an exception might be where the parent would be executed for committing adultery, and leave the child without a parent to care for them.
The child objection defense has to take into account the child’s age and maturity in whether the child’s wishes should be given weight, and if the child is of sufficient maturity, how much weight should be given the child’s wishes. This is not dissimilar to the child’s wishes as to custody in a custody dispute in a state court in the United States. If a 5 year old child states that she wants to live with one parent because one parent has promised her a pony, a court is not likely to take the preferences of such a young child into account. If the child is 15 years old, and wishes to live with one parent because one parent has promised to give that child a car, even though the 15 year old may be of an age and maturity to make decisions as to where the child wants to live, the reasons for why the 15 year old want to live with the other are not likely to be given a great deal of weight. However, if the 15 year old wants to live with one parent because the relationship with the other parent has significantly deteriorated, and the child’s life would be more stable living with the other parent, the court is likely to give a great deal of deference to the child’s wishes.