International Child Custody

         As businesses become more global, individual travel--for work and pleasure--has become more prevalent. This has inevitably led to the increased co-mingling of people from different countries. Sometimes this co-mingling can lead to marriages and/or children. If children are conceived and the parents no longer want to live in the same country, but both want custody, complex legal issues can arise. These issues generally center around which country has jurisdiction and how that jurisdiction defines custody.

The Hague Convention

            The Hague Convention on the Civil Aspects of Child Abduction is a multilateral treaty ratified by 98 countries and it provides a protocol for the return of a child who was taken by a parent to another country to live without the consent of the other parent.  The United States is one of the 98 countries who have signed the treaty.

Habitual Residence

A very important factor in The Hague Convention is the child’s habitual residence. The child’s habitual residence is where the child had grown up for the previous few years. For countries who signed The Hague Convention, once a left-behind parent makes a claim for the child then the child must be returned to the country of their habitual residence. The law of that state or country then determines custody. An example of this procedure in action was in the case of Redmond v. Redmond, in which an unmarried couple had a child (their names being the same is a coincidence) and when the relationship fell apart the mother took the child to Illinois. The father wanted the child back, but the Seventh Circuit did not force the mother to return the child because in Ireland a non-married father does not have rights to the child unless he makes a claim for it, so The Hague Convention did not apply. By the time the father was able to complete a petition for custody rights the United States had become the child’s habitual residence and the child was allowed to stay in the United States. 

Unmarried Parents

            Unmarried parents, especially fathers, should review the definition of custody in their jurisdiction and also future jurisdictions they could reside in. Once this research is done the unmarried parent will know whether he or she needs to petition for custody immediately.

How a Lawyer Can Help

A lawyer who specializes in custody proceedings is extremely valuable in any custody battle, but especially an international one. It may take quick action to keep your child from being ripped away from you. If you are in need of a lawyer for a custody proceeding, or if you have any other family law or estate related needs, or would like to attend one of our free seminars please call Smith Strong today at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee - Law Clerk

H. Van Smith
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