Enforcing a custody order in a foreign country

One of the least expected but most contentious post-divorce issues is enforcing (or modifying) an order for child custody when one of the parties want to or has already moved to a foreign country with the children. A treaty known as the Hague Convention on the Civil Aspects of International Child Abduction provides several methods of enforcing an American child custody order.

Returning the child to the United States

The treaty does not define who is entitled to custody of a foreign-born child, but the treaty provides several potential solutions if a child has been taken to another country. If the child is under age16 and lived in a country that was a member of the convention, the child will be returned to its country of origin if that country has signed the Hague convention and if someone removed them and prevented them from returning to their country of origin. The person seeking return of the children must demonstrate a legal right to custody of the children. Living on an American military base is not equivalent to having “lived in the United States;” military bases are not regarded as U.S. territory.

Filing an application for under the convention

An application for the return of children as provided in the convention must be filed within one year of the child’s removal to a foreign country. An application for a child’s return to the United States must be filed with Office of Children’s Issues in the United States State Department.

Preventing removal

A non-custodial parent can prevent the custodial parent from removing children to another country by getting a domestic court to issue an order that prohibits the children from leaving the United States without the consent of the non-custodial parent.

International custody issues can become very complex. Anyone who thinks they may be required to deal with a spouse who wants to remove the children to another country should consult a lawyer with experience in international family law matters.

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