Manassas International Family Attorneys
Compassionate Attorneys Dedicated to Your Success
At Dougherty Tobias Iszard, Northern Virginia Law, P.C., we are equipped with many years of professional experience representing our clients in cases going as high up as the Supreme Court. We take each case with immense care and seek to come up with creative solutions for our clients’ cases, which can be critical in a case of international family law. Whether you are facing the wrongful removal of your child to a foreign country or seek an international move-away custody order, our international family lawyers can handle your case.
International Child Abduction
Naturally after a divorce, custody disputes will arise. Some of the most complicated disputes, however, involve one parent’s decision to wrongfully remove a child from their home country or retain the child in a foreign country without the other parent’s consent. In such cases, the parent left behind may invoke the protections of the Hague Convention in order to remedy the situation.
In 1980, the United States enacted the Hague Convention on the Civil Aspects of International Child Abduction, which is an international treaty addressing the problem of international child abduction. The Convention’s overall purpose is to deter international child abduction and provide a legal process for the return of abducted children to their home countries, where the local courts can resolve custody disputes on their local merits. Be aware that the Convention does not provide substantive custody rights to the requesting parent; it primarily handles the judicial proceedings for the return of the children.
Note that the Hague Convention applies only in nations that have adopted the Convention (signatory nations), so its remedies are available only when a child is wrongfully removed from a signatory country and retained in another signatory country. Visit the U.S. Department of State’s website for a complete list of signatory nations a parent can invoke the Hague Convention in for the return of their child.
International Custody Violations
If there has been a violation of custody rights or a wrongful removal of a child to a foreign nation, the parent seeking to have the child returned (the petitioner) must file a local court custody action and ask the local court to invoke the Hague Convention. The court must determine whether both countries are signatories to the Convention and which country has jurisdiction to hear the dispute. The Convention provides that signatory nations, their courts, and the administrative bodies act quickly and ensure that a final decision is made within 6 weeks from the filing of the action.
Note that in order for the court hearing the action to invoke the provisions of the Hague Convention, the petitioner must show that:
- the child was a habitual resident in a signatory nation immediately before the action was filed; and
- the child was wrongfully removed to or retained in a different signatory nation.
The Convention does not provide a specific definition of a “habitual resident,” but courts will generally look to the child’s ordinary residence before the allegedly wrongful removal took place. This will be determined based on factors including:
- the shared intentions of the parents;
- the history of the child’s locations and residences (where the child’s school, home, and caregivers have been located); and
- the settled nature of the family prior to the facts giving rise to the action (prior to the removal or retention).
Seeking International Move-Away
If the child has been wrongfully removed to or retained in a foreign country, the parent left behind should immediately contact a local attorney that is experienced in international custody disputes for help to institute a court action. Divorced or separated parents that want to move their children out of the United States will have to file specific custody actions, commonly referred to as “international relocations” or “international move-away cases,” if they seek legal custody of their child in a foreign country.
In deciding whether to authorize a child’s relocation to a foreign country, U.S. courts will consider the best interests of the child, the same factors they normally consider in domestic move-away cases. In addition, with international move-away cases, most state courts will also consider several additional factors, including:
- the cultural conditions and practices in the foreign country;
- any potential visitation difficulties for the parent that gets left behind;
- jurisdictional issues that may make the enforceability of the domestic custody and visitation orders problematic (the extent to which the foreign country would enforce the left-behind parent’s visitation or rights to access the child); and
- whether or not the proposed foreign country is a signatory to the Hague Convention.
If a parent seeks to move their child out of the United States or the child’s other parent does, they should definitely contact an experienced custody attorney for advice on how to protect their parental rights across borders.
Let Our Firm Protect You and Your Child
Custody arrangements are complex enough domestically, but when it comes to international disputes, it is critical to work with an experienced international family attorney to better navigate the process efficiently. Whether you seek to move to another country with your child following divorce or the other parent has retained the child in the foreign country they are residing, our attorneys at Dougherty Tobias Iszard, Northern Virginia Law, P.C. can handle your international custody case with your and your child’s best interests in mind.