International marriages are on the rise, thanks to the global nature of society, technological advances in communication, and the decreased costs of international travel. Unfortunately, international marriages are just as likely to fail as those within the United States, leaving complex issues in their wake.
When child custody is an issue and parents are in different countries, the issue can become very complex.
While in the California, a child's home state normally has jurisdiction over child custody matters, but other countries are not required to abide by California family laws.
Also, the foreign court could choose to disregard any existing custody order issued in California.
If the parents don't live in the same country, and the child routinely resides with both parents, It's often difficult to determine which country should have jurisdiction over a case in order to determine the crucial issue of custody of the child.
In other words, international child custody cases often become a complicated dispute.
If a parent in one country files a child custody case and the other parent doesn't believe it's the appropriate jurisdiction for the action, the parent who wants to transfer the case will probably have to file an action in the original court.
The chances of success in seeking to transfer a child custody case will depend on the laws of the country and the court that will determine the child custody issue, which will vary greatly depending on what country is involved.
If you are trying to reach a custody agreement with an ex-spouse, working to keep your child in the United States, or to bring them back to the United States, a well-versed child custody attorney in Los Angeles could be the key to reaching your goal.
It is crucial that you have a child custody attorney that is experienced with dealing with custody matters on an international level.
Applying the Concept of Habitual Residence
To help combat increasing numbers of child abduction cases, the Hague Convention enacted the concept of habitual residence in 1980. However, the effectiveness is limited as it only applies to countries who signed the treaty.
Under this concept, when a divorce takes place, the couple's children should continue to reside in their country of primary residence as they did before the divorce.
The Hague Convention, unfortunately, does not explicitly define habitual residence, but it generally involves:
- The previous locations and homes of the child
- Where the child attends school or participates in religious or other activities
- A location mutually agreed upon by the parents
- Where the family lived before a divorce
If a child is removed from their country of habitual residence by one spouse, the other can file a petition with the California family courts to use the Hague Convention to bring the child back to their place of habitual residence. See “Request For Hearing Regarding Registration of an International Hague Convention Support Order.” (Form FL-594)
Using an experienced Los Angeles child custody attorney to help with this process could increase the chances of success. When filing such a petition, the parent will need to prove to the court that the child was a habitual resident of the country before the divorce took place.
Parents should be aware that not all countries abide by the Hague Convention Treaty. Only those that are signatory nations are bound to abide by it. This means that the child must have been removed from and taken to a signatory country to use the habitual residence concept for their return.
It should be noted that the Hague Convention doesn't allow modification of child custody rights, it only sets forth that any child that was abducted to a foreign country should be returned to their home country.
If the child was taken from or to a nation that does not participate in the Hague Convention, there might be other options a parent can discuss with their child custody lawyer in Los Angeles.
Will the Court Allow an International Relocation?
In some divorce cases, a parent who lives in California will seek to relocate to a foreign country with their child. In order to decide whether to allow a parent to move a child to a foreign country, they will consider several factors.
These include as whether the country is a signatory to the Hague convention, if the foreign jurisdiction will enforce existing custody orders, and the impact of relocation on the current custody of the child.
However, as with any custody case, the primary factor in determining whether to allow a parent to relocate a child to another country is whether it's in the best interest of the child. If possible, parents who desire to move their children out of the United States should try to work out an agreement with the other parent.
Due to the complex nature of international custody laws and California family courts, this is an easier option for some families. When an agreement can be reached, the courts will help ensure that it is enforced.
When couples cannot negotiate an agreement, the court is left to decide what should happen. Their job is to determine what actions are in the child's best interests, just as they would if the custody arrangements were domestic. When the case involves international moves, the courts may also consider:
- The cultural conditions and practices in the destination country
- Any possible visitation challenges for the parent residing in the United States
- Jurisdictional legal matters that may make the enforceability of the domestic custody and visitation orders problematic
- Whether or not the proposed foreign country is a signatory to the Hague convention
Whether you are the parent who wishes to move out of the country with your child or the parent who will still reside within the United States, the knowledge and experience of Los Angeles child custody lawyer could help you protect your rights as a parent.
How a Child Custody Lawyer in Los Angeles Can Help You with International Custody Cases
Custody and international law can encompass multiple jurisdictions that often lack clearly defined legal precedents. With so many what-ifs and unknowns, this can be a very emotional and tumultuous time for everyone.
Parents who believe their child was wrongfully removed or retained in another country, should not waste time contacting a qualified international child custody attorney as court action should be initiated as soon as possible.
To take advantage of the Hague Convention, a parent has to file a petition asking the court to invoke the Hague Convention.
If the country is a signatory to the treaty a hearing will be held. If the court determines the child was wrongfully taken from California where the petition was filed, and the child was a habitual resident, the child must be returned to California within six weeks.
The term “habitual resident” is not specifically defined, but courts usually consider several factors, including where the child historically lived and intent of the parents.
If you are involved in a child custody dispute in an international divorce, it is crucial that you schedule a consultation with an experienced Los Angeles child custody lawyer about your custody case.
Furman & Zavatsky are Los Angeles divorce and family law attorneys located in the San Fernando Valley area of Los Angeles County at 15821 Ventura Blvd #690 Encino, CA 91436. Contact us for a free case evaluation at (818) 528-3471.