Hague Convention and International Custody Issues
Cases involving child custody can become complicated quickly, as every family and every child is different, and each has their own issues and nuances. This is especially true when issues of international law are involved. Custody battles when more than one state is involved are usually governed by the Uniform Child Custody Jurisdiction and Enforcement Act. When an international dispute arises, the Hague Convention may come into play.
The Hague Convention is an international treaty which provides for a child to be returned to his or her country of origin when a parent has wrongfully removed a child from the original or wrongfully detained a child in another country. However, the protections afforded by this treaty can only be claimed if both countries are signatories to the treaty. The United States is a signatory to the Hague Convention, but before invoking the rights and responsibilities under the treaty, a parent must make sure that the country where the child and other parent are located is also a signatory.
A Hague Convention case would be one where, for example, there is a custody order in place from New Jersey providing that the father has joint legal custody with the mother, and also has court ordered visitation. Despite exercising visitation on a regular basis, the mother takes the child to visit her family in Argentina, but then refuses to return with the children. The father may file suit in New Jersey and invoke the protections of the Hague Convention to have the children returned. However, if the mother instead travelled to India or Pakistan, for example, the father would not be able to use the Hague Convention to seek to have the children returned to the United States, as those countries are not parties to the treaty.
The provisions of the treaty also require that a previous order involving the child must give custody rights to both parents in order to qualify under the treaty. In Abbott v. Abbott the United States Supreme Court addressed whether a simple provision in a custody order that a mother may not leave the country without the other parent’s permission qualified as a custody order. The Supreme Court held that it did, and the father could compel the mother to return the children to the country of origin under the treaty.
If you are concerned about international child abduction, you need on your side. Call us today at (732) 529-6937 to talk about your child and your case
About the Author
John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.
Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.
