In a world where many families travel frequently and may have homes in several countries, international travel can play a significant role in your custody case. Additionally, you may have concerns about the other parent taking your child to another country and not returning.
International Travel & Your Child
It's common for a custody order to have a provision in it that parents must notify each other in advance if they plan to take the child out of the state or out of the country. Some custody agreements require the non-traveling parent to consent to the travel plans.
If you have concerns about the other parent taking your child out of the country without your permission, there are several avenues your attorney can pursue. To bring up this issue in court, you will need to show you have reasonable concerns about this. If the other parent has a home, work connections, or family in another country, this could be the basis for concern.
Your attorney can request any of the following:
- A provision in your custody order that the child cannot be removed from the country without court permission
- A provision that the child can leave the country only if both parents agree in writing
- A provision that the child may travel out of the country, but only with notice to the court and contact information provided
- A provision that the traveling parent must post a bond before they travel with the child outside of the country
- A provision that the child's passport will be held by the court and released only when travel plans are approved
These options place limits on a parents' ability to travel with the child. If your child does not currently have a passport, you can register for the Children's Passport Issuance Alert Program through the State Department. This program will notify you if a passport application is submitted for your child. You can then contact your attorney, who will take legal action to prevent the issuance of the passport or to request one of the measures described above to protect your child.
International Relocation Cases
If you or the other parent wishes to relocate with your child to another country, the court will decide as to what is in the best interests of the child. New York courts must consider some very specific factors when evaluating a request for relocation, including:
- The reason the parent wants to move
- The reasons the other parent is opposed to the move
- The quality of the relationships between the child and both parents
- The impact the move will have on the quality of life for the child and the relocating parent and can include consideration of the safety, culture, freedoms, and quality of education in the country involved
- The impact the move will have on the child's contact with the parent who is not moving
- The challenge of maintaining a long-distance relationship between the child and the parent who is not moving, which is impacted by the distance and time zone issues
Where the parent is moving to will also be an important factor. If the country being relocated is not part of the Hague Convention (see below), the court may be less likely to approve the move because the non-moving parent has little hope of enforcing their rights to visitation in that situation.
The Hague Convention & Child Abduction
When a custody dispute involves a child being removed from the United States by a parent who does not have permission to do so (referred to as parental kidnapping), there is an international convention, called The Hague Convention, that applies. The Hague Convention provides guidelines about where these cases should be heard and when an abducted child must be returned to another country.
The key factor to be aware of is that the Hague Convention only applies to countries that are signatories to it. Ninety-six countries are signatories, but many countries are not, including China, Thailand, Vietnam, Cuba, Philippines, Egypt, and Jamaica that do not participate. If your child is taken to a country that is not a signatory, your attorney can request assistance from the State Department, but do note that it is more challenging to get the child returned.
Under the Hague Convention, the child must be a "habitual resident" in the country where the objecting parent files the case. The removing parent must have taken the child without permission or in violation of an existing custody order to the other country where the child is now located.
The Hague Convention states that the courts in the country where the child has been brought without permission must return the child to the home country within six weeks. There are some exceptions to this rule:
- The other parent consented to or later agreed with the child's move
- The child does not wish to return to the home country and is of sufficient maturity to make that decision
- One year has passed since the child was removed from the home country and the child is now settled in the new country
- Returning the child to the home country would violate the child's human rights or place them in danger
Child Abduction Penalties
When a parent abducts their own child, New York courts consider this to be a serious crime. A parent who abducts their own child to another country can be charged with Class B felony kidnapping with a maximum sentence of 25 years in prison. Federal law can also be applied with a maximum penalty of three years for violating the International Parental Kidnapping Crime Act of 1993 if a child is removed from the country with the intent to obstruct the other parents' rights.
International Child Custody: A Cautionary Tale
Actress Kelly Rutherford (who appeared on Gossip Girl) and her husband Daniel Giersch had two children together and were awarded joint custody. Giersch lives in Monaco and flew back and forth to utilize his parenting time. His visa was revoked (and some media outlets report Rutherford provided information that led to the revocation). Instead of reducing his role as a parent, this instead eventually led to Giersch being granted residential custody in Monaco since he could not travel to the U.S. to visit the children.
At one point, Rutherford had the children in the U.S. for a visit and refused to return them to him. Giersch was able to invoke the Hague Convention, and the children were returned to him. Rutherford must now fly to Monaco to visit them. This case shows not only that seeking to prevent the other parent from entering the country can backfire, but also that American courts will invoke the Hague Convention and have children returned overseas if that is where they reside.
Child custody is complicated and confusing. International elements only make it even more complex. It's crucial to work with an attorney who thoroughly understands international rules and can present the best case possible to protect your rights.