International Custody

International custody disputes typically involve a child brought to Texas from another country. These matters are governed by federal law and are crucial for a Texas court to either take jurisdiction over a child or decline jurisdiction. Among the laws at play in an international dispute are the International Parental Kidnapping Crime Act of 1993, the International Child Abduction Remedies Act, and the Hague Convention on the Civil Aspects of International Child Abduction. These acts play a large part in international child custody law in Texas.

International custody cases are complex; do not attempt to negotiate the terms of custody across the border alone. Our in-depth knowledge of international child custody laws and experience in these cases is second to none in the state of Texas. Read on to learn more about the intricacies of international child custody laws and statutes, and how our Texas child custody lawyers can help you get the results you need in court.

 

THE HAGUE CONVENTION

The Hague Convention generally governs international custody issues and related actions that can be filed in state or federal court. The Hague Convention has several parts, only a few of which relate to child issues. In short, when countries that have signed the Hague Convention are involved, it ensures:

  • Prompt return of children who have been wrongfully removed or retained
  • Custody and access rights under each country’s laws are respected

Approximately 70 countries around the world have signed on to the relevant parts of the treaty, and therefore have remedies, which can be pursued in the state of Texas.

The countries that have signed the Convention agree to take the appropriate measures to secure the intention of the Hague Convention. What’s more, they have committed to implement those procedures as expeditiously as possible.

Under Hague definitions, the removal of a child is wrongful where:

  • The removal is in violation of the rights of a person or entity under the laws of the state or country where the child was habitually residing immediately prior to the removal and retention
  • At the time of removal or retention, the custodial rights were actually exercised, or would have been exercised if the child had not been removed or retained

For purposes of these definitions, the rights of custody or possession may come from operation of law, a judicial or administrative decision, or by an agreement which has the appropriate legal effect.

The determining factor in applying international custody rules is the habitual residence of the child. This is where all of the evidence will be presented to a court. The Hague Convention applies to any child who was a habitual resident in a contracting country (a country which has signed the Hague Convention) immediately before any breach of custody or access rights. But the Hague Convention does not apply after the child reaches 16 years of age.

A big aspect of the Hague Convention is that the signatory countries to the treaty cooperate with each other. The contracting countries to the Hague Convention each have a central authority and have agreed to cooperate with the other countries for return of a child. The true extent of that cooperation, in practice, depends on the country.

Hague proceedings are also meant to be quick. The judicial or administrative authorities of contracting states are mandated to act expeditiously for the return of children. Generally, they are to be resolved in six weeks.

Filing quickly when a child has been removed from his/her habitual residence country is also important. If a proceeding for the return of a child is started within one year of that child’s removal, the foreign authority should order, if appropriate, the return of the child without delay.

But, of course, there are some defenses to the return of a child. The Hague Convention states that a court is not bound to order the return of the child if the person or entity that opposes its return establishes that:

  • The custodial person or entity wasn’t exercising custody rights or consented (or acquiesced) to the removal or retention of the child
  • There is a grave risk that the child’s return would expose that child to physical or psychological harm or otherwise place the child in an intolerable situation

The foreign country may also refuse to return a child if doing so would violate the fundamental principles of that country’s protection of human rights and fundamental freedoms.

The court, in addition to acting quickly, does not determine the merits of a child custody case, only which country should be the one to make that determination. Under the Hague Convention, after receiving notice of a wrongful removal or retention of a child, the judicial or administrative authorities of the contracting state to which the child has been removed or in which he or she has been retained shall not decide the merits of rights of custody until it has been determined that the child is not to be returned under the Convention or unless an application under the Convention is not filed within a reasonable time.

The sole fact that a decision relating to custody has been given in, or is entitled to recognition in, the requested state (country) should not be a ground for refusing to return a child under the Hague Convention, but the judicial or administrative authorities of the requested state may take the reasons into account for that decision in applying the terms and requirements of the Convention.

A decision under this Convention concerning the return of the child should not be a determinate factor in the merits of any custody issue.

Child custody cases are very important to every parent, and they are important to us. The stakes get very high very quickly when a child has been removed from Texas or to Texas. If you need access or are being prevented access to your children, call our international custody lawyers today. Here at Orsinger, Nelson, Downing and Anderson, our attorneys understand international custody cases and treat them very seriously.