Originally published by The Law Office of Bryan Fagan, PLLC Blog.
What court will hear issues about your child in relation to an international divorce?
There is a great deal of uncertainty associated with divorce. For starters, you have no idea how long your case could last. You’ve probably heard horror stories about divorces that have taken years to complete and are worried about yours ending up the same way. Tied to that concern you may be wondering how you are going to afford to pay for the divorce. Attorney’s fees, court costs are just the tip of the iceberg from what you can tell.
What if you were also in a position where you didn’t even know where you would need to ask for a divorce? Many Texas residents know that all we would need to do in order to file for divorce was to submit some paperwork at the local county courthouse in order to start the process. You may not be in that same position, however. If you have resided outside of the State of Texas- or outside of the United States altogether- you may have questions about what court will be able to hear your case in the first place.
Beyond any immediate concerns about yourself, you are likely concerned with what outcome your children will encounter because of your divorce. Kids are the innocent by-standards in any divorce. Because you and your spouse are ending your marriage your children are now facing up to the effects of that choice. You want to do every possible to shield them from the brunt of the divorce but are unclear on some issues associated with your potential case. For starters, what will happen if your child has ties to more than one state- or more than one country?
Custody options that are available when a child has lived in multiple countries
Knowing what options are available to you as well as what courts are available to issue rulings regarding child custody matters ought to be one of the first issues that you explore as you prepare to file for a divorce.
The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) has been adopted by all fifty states and seeks to address jurisdictional problems that are relevant in our country and across the globe. Asking and answering a few questions within the framework of the UCCJEA can tell you a great deal of information about what court is the appropriate venue to file your divorce or child custody case within.
For starters, you will need to determine where your child has been a resident for the past six months. Next, consider whether or not your child has a true home country. If you and your spouse have moved so frequently that it would not be fair to call one country or another their “home” for the purposes of a divorce then you would be going off of where your child has lived during the past six months.
If your child does have a home country where he or she has been raised and is attending school, the next question you need to ask yourself is whether or not a court in that country has already stated that jurisdiction is proper there. However, consider that if you now reside in the United States and have done so for at least six months it may be better suited for your family to file your divorce in the U.S. All of these considerations go out the window if an emergency arises that requires intervention by a court at a moment’s notice, such as when an abduction of your child occurs.
Jurisdiction in international child custody cases is far from simple
As we have seen in the past few blog posts on our website, determining child custody jurisdiction in international cases is not simple at all, unfortunately. You need to be able to balance complex issues with one another while balancing what is in the best interests of your child throughout the evaluation.
Under the UCCJEA a court in the United States may be required to apply the custody laws or another nation in enforcing a foreign court order or even creating a brand-new order for you and your child. As with anything associated with family law, it is strongly recommended that your attorney not only have experience handling child custody cases but also have experience in handling cases that involve the UCCJEA.
Be aware of child abduction issues in connection with international child abduction cases
It is not uncommon to encounter child custody cases wherein one parent attempts to ignore, brazenly, the child custody laws of one country in order to gain entry to a nation whose circumstances are more advantageous. If your child’s other parent believes the laws in their country of origin are “better suited” for him or her then it is not out of the question for him or her to attempt to remove your child without your permission from the United States or whatever country, you currently reside in.
I do not tell you all this in order to frighten or intimidate you. I mention it because it is a relevant consideration in an age where mobility has never been easier. Courts in the United States hear issues all the time of international child abduction cases. The goals of these courts are to quickly and correctly address the issues in that specific case with the goal of returning the children to their home country.
When courts are effective in addressing issues and returning children back to their parents, they not only help the family who is involved in the case but also discourage parents from taking matters into their own hands by attempting to create jurisdiction over a child by means of abduction. What these parents do not consider is that almost every country in the world has signed on to the UCCJEA and would apply the laws of the nation where the child just left in any custody case.
How you can present a case to have your child returned to you
In the event that you are left behind by your child’s other parent, there are concrete steps that you can legally take in order to have your child returned to you. First, you must be able to establish that he or she was consistently a resident of that country. As a parent, you must next show that based on the laws of your home country you had parental rights. Keep in mind that if you are an absentee parent this could cause problems for you, given that those parental rights must be acted upon. If you do not have a minimal amount of contact with your child it will be difficult to convince a court to have your child returned home.
What can the “other” parent argue in a contested child custody hearing regarding abduction?
If you are in a position where your child has been removed from the United States and taken to another country, you may have some concerns about what your spouse or child’s other parent may be able to argue as far as why the abduction was justified under the law. As I just mentioned, one of the most effective means of legitimizing the actions of the abducting parent would be to argue that you as the non-abducting parent has not attempted to exercise your parental rights. Your not taking an active role in the life of your child could come back to haunt you if this is the case.
Next, if you agreed to the removal of your child from the United States at any point this could also hamper your argument that your child needs to be returned. An email from a few weeks ago where you and your child’s other parent outlined an agreement between the two of you to allow him to take your daughter to Saudi Arabia can diminish the strength of any arguments you have as to why your child needs to be returned to you.
At the very least, if the abducting parent can show a court that while you did not exactly endorse the move if you were not vociferous or took no action to prevent the abduction then it probably cannot properly be called an abduction at all.
Finally, your child’s other parent may attempt to present an argument that your child was facing a serious risk of harm by remaining with you in their “home” country. If there is an issue related to your family, or to the political climate of your home country this can be an effective argument to make. The best interests of your child are going to bee at the forefront of the decision making any court utilizes and showing that child abuse had been ongoing can be an effective tool to utilize.
The age of your child may be a relevant consideration, as well
Even if your spouse or child’s other parent cannot effectively present an argument such as the ones, we have just been discussing it is possible that if your child is old enough, his or her preference to remain in the new country could bolster the case of the abducting parent. The opinion and/or wishes of your sixteen-year-old are likely to be taken a lot more seriously than those of your six-year-old child, mind you.
Do not delay if you seek to challenge the abduction of your child to another country
Act quickly if your child has been abducted from the United States. Under the relevant international treaty, a case requesting the return of your child to this country must be filed within a year of the removal. Once you get beyond this one-year time-frame it is simpler for the abducting parent to make an argument that your child has become more familiar and comfortable in their surroundings. Finding a home, a place to go to school and friends will create a home-like atmosphere that will be tougher for you to counter with arguments of your own. Keep in mind that if you file your lawsuit to have your child returned to the United States within a year of their removal then the opposing party cannot present this argument.
The bottom line is that you need to have a sense of urgency when it comes to your actions that are taken in the time period immediately following the abduction of your child. I’m sure that this will not be difficult, as I can only imagine the fear and anger that would arise in me if this happened to one of my children. Do not let fear or the unknown or concerns about external issues weigh you down and prevent you from making a decision that could save your family from a great deal of hardship,
If you find yourself in a position where you need to hire an attorney to help you fight for you, make sure that you verify that the attorney has experience in international child custody matters. Family law experience is not good enough for one of these cases. When your relationship with your child is concerned you cannot afford to take any chances. Seek out representation that has had proven results in order to give yourself the best chance at a successful outcome.
Questions about international divorce or child custody cases? Contact the Law Office of Bryan Fagan
Thank you for your interest in this topic. If you have any questions about the material that we presented today or seek clarification on anything please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions and address your concerns in a comfortable and pressure-free environment. Our attorneys and staff take a great deal of pride in providing comprehensive, family law services to our clients.
No matter where you live in southeast Texas, we are here to serve you. From Baytown to Waller and up to Conroe, our attorneys will put your interests first and advise you to take steps that will seek to improve your family’s well-being.