International Child Custody Law in the United States

Expats in the United States with children may face special and unusual challenges concerning child custody, international visitation and international relocation. The rules and practices in the United States on such matters are quite different from those in the rest of the world.

 

Initial Child Custody Jurisdiction

Whether a court in a state in the United States has jurisdiction to make decisions concerning the custody of a child depends on the applicability of the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”) (or its predecessor, the Uniform Child Custody Jurisdiction Act in the case of Massachusetts).

The UCCJEA provides, in the broadest of terms and with extremely significant exceptions and additions, that (a) a child’s ““home state”” is the state (or foreign country) where the child has lived for the past six months and (b) the home state has exclusive jurisdiction to handle child custody issues unless a prior home state has previously issued a custody order concerning the child. If the child is less than six months of age, the home state is the state in which the child has lived with a parent from birth. A period of temporary absence is part of these periods. It is most important to note that each of the U.S. states is a different jurisdiction for these purposes, so that, for example, 3 months in New York followed by 3 months in California does not fulfil the 6-month requirement.

 

Continuing Exclusive Jurisdiction

The UCCJEA provides that once a “home state” court has issued a custody order the courts in that state may have ““continuing exclusive jurisdiction”” until a requisite connection with the state no longer exists. This means that, even if the child and one parent move to another country in accordance with a custody order issued by the home state court, that court may assert its continuing jurisdiction concerning the child’s custody as long as one parent continues to live there even though the child and primary care provider have long been habitually resident overseas. This might lead to conflicting orders between the courts in the current and prior jurisdictions.

 

Foreign Countries as Sister States

The UCCJEA provides that a foreign country must be treated in almost all cases as if it were a U.S. state. This means that a child custody determination made in a foreign country must generally be recognized and enforced throughout the United States if it was issued “in substantial conformity with the jurisdictional standards of the UCCJEA.

However, if it is proven that the child custody laws of the foreign country “violates fundamental principles of human rights these rules do not apply. In almost all states the focus is on the foreign law as it is written, rather than the law as it is applied in practice, but New York’s version of the UCCJEA allows for a broader review of the ways in which the courts in the foreign country actually operate to determine whether they comply with fundamental human rights norms.

 

Relocation: Interstate and International   

Once children are living in the United States, the courts and laws in the U.S. might prevent relocation to another country without the consent of both parents. Several relevant factors must be considered:

• Many U.S. states require a parent who intends to relocate a child to another country to give prior notice–ranging in most but not all cases from 30 to 90 days of the intended move – if the non-residential parent does not consent.
• Relocating a child who is habitually resident in the United States to another country which is a U.S. treaty partner under the Hague Convention on the Civil Aspects of International Child Abduction will normally constitute a wrongful removal or wrongful retention within the meaning of the treaty requiring the prompt return of the child.
• The federal International Parental Kidnapping Act makes it an offense to remove a child from the United States with the intent to obstruct the lawful exercise of parental rights. The term “p“arental rights” ”means the right to physical custody of the child, whether joint or sole, and includes visiting rights, whether arising by operation of law, court order, or legally binding agreement of the parties. This means that even if one parent has sole custody of a child while the other parent has nothing but limited rights of access, it would normally be felonious for the custodial parent to relocate the child to another country without either the other parent’s consent or a court order authorizing the relocation.
• Every U.S. state has a provision of its criminal law that bars parental kidnapping in one form or another. New York’s Penal Law provides that a parent is guilty of custodial interference in the second degree when, intending to hold such child permanently or for a protracted period, and knowing that he has no legal right to do so, he takes or entices such child from his lawful custodian. It becomes first degree custodial interference if done “with intent to permanently remove the victim from this state.”
• The child’s home state will normally continue to have exclusive custody jurisdiction for at least six months after a unilateral relocation. This means that a left-behind parent may seek an emergency order directing the taking parent to return the child to the state, and perhaps to the custody of the other parent, forthwith. If such an order is violated the taking parent could be held in contempt of court.

 

Relocation Factors

Courts must consider the best interests of the child in deciding whether to authorize the relocation of the child.

The current state of U.S. relocation jurisprudence reflects three distinct and contradictory trends. The first trend is the traditional view that relocation should be discouraged. Many states enacted statutes that created a rebuttable presumption that a change of a child’s principal residence is not in the best interests of the child. In other states, the presumption against relocation was a matter of common law. The presumption survives in several states.

Some states have framed the rule as one that requires a custodial parent who wishes to relocate to establish that the move will substantially improve the custodial parent’s and the child’s quality of life.

The second trend, which flourished a decade or so ago, was to favor relocation unless it were shown in a specific case as being likely to hurt the child. The change was reflected in presumptions and burdens of proof, in both statutory law and case law, many of which continue in full force and effect today in many states.

The third trend, which is the current favorite, has been to abandon most of the presumptions and to require that each case be analyzed individually and at great length to determine what is in the best interest of the child before an individual decision can be reached. This is the approach that was adopted by New York’s Court of Appeals in the landmark case of Tropea, 87 N.Y.2d 727 (1996), and it has gradually spread to other states.

The “Tropea Factors” are as follows:

(1) The good faith of the parents in requesting or opposing the move;

(2) The child’s respective attachments to the custodial and non-custodial parents;

(3) The possibility of devising a visitation schedule that will enable the non-custodial parent to maintain a meaningful relationship with the child;

(4) The impact of the move would have on the quality of the life of the child;

(5) Any negative impact from hostility between the parents;

(6) The effect on extended family relationships; and

(7) Any other factors the court may consider.

 

International Child Visitation

A parent who fears that the other parent or another party might abduct a child may seek an order from a court in the child’s home state barring the other party from taking the child out of the United States, even for a family visit to a parent’s country of origin or on a vacation. A court may bar international visits even if there has been no prior actual harmful conduct toward the child. Some states have adopted legislation to facilitate the entry of orders designed to prevent international child abduction.

The courts in such cases must weigh the magnitude of the risk of abduction presented by the facts concerning the specific parent against the likelihood that the specific country will cause the child to be located and returned safely and expeditiously. The more likely it is that the country to which the child might be taken is a fully compliant Hague Abduction Convention treaty partner with an effective legal system and a history of prompt returns of abducted children, the higher the burden of proof that a parent seeking to prevent an abduction must satisfy as to the extent of the risk that the other parent is likely to be an international child abductor.

Conversely, if the foreign country is not a Hague treaty partner, or is not compliant with the Convention, and has little or no history of returning abducted children to the United States, then far less evidence of the parent being a likely international child abductor is necessary in order to justify –   and require –   a court to take effective steps to prevent a potential child abduction.

It is impossible to evaluate the true risks that arise from authorizing international child visitation, or from failing to effectively prevent international child abduction, without considering the laws and procedures of the foreign country that will apply once the child is physically in the foreign country, and without evaluating the effectiveness of the foreign legal system in remedying the potential wrongful retention of the child in that country.

 

The Law Office of Jeremy D. Morley handles child custody cases in New York and New Jersey and with local counsel throughout the U.S. and globally. We usually commence our matters with a consultation. Most consultations are by telephone, since our clients are all over the world. To set up a consultation call Mark at 1-212-372-3425 or email [email protected]