International Custody Orders
Today advances in technology and the globalization of the world marketplace have made it increasingly common for American citizens to have relationships with citizens of other countries. With the frequency and ease of these connections, international marriages have become more and more commonplace. When a couple from different nations with children decides to end their marriage, and one or both wish to return to their respective country, the issue of child custody can become very complicated and fraught with bad feeling and pain.
The first thing to determine is where all the parties are located. Child custody jurisdiction is usually dependent on where the child is living and has been living. In New York, like most other states, the courts follow the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA provides that a court will have jurisdiction over a child’s case in their “home state,” which means the state where the child has lived with a parent for six consecutive months before the beginning of the case or since birth for children younger than six months. Some other basis for the New York court’s jurisdiction is that the child and at least one parent have significant connections with New York, it is a more appropriate forum for the case, and something called “vacuum jurisdiction” which is invoked when a child has not been in any state long enough to establish jurisdiction. Additionally, if there is an emergency concerning the safety of the child, the court may be able to exercise jurisdiction. The UCCJEA is usually applied when looking at cases where there are citizens of different states. However, it is also useful for a New York parent who is seeking to establish that New York is the court with jurisdiction to decide custody when the other parent resides in another country.
When parents live in different countries, there can be a concern that one parent will take the child to their home country and refuse to allow the other parent access to them. If a parent improperly removes a child from New York, the courts will look to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) in order to determine if a court in the foreign country can require the parent to send the child back. The Hague Convention decides which country’s courts get to determine custody by looking at the child’s “habitual residence.” Like the UCCJEA, where the child has lived for six months before the abduction is usually a deciding factor. The Convention was created in order to help ensure children are returned to their proper country when they have been abducted. However, not every country is party to the Hague Convention. Further, the Convention’s terms are applicable to children under a certain age.
When facing a custody dispute where international law issues may be applicable, it is important to consult with an experienced family law attorney. We understand the issues which can arise under circumstances involving international custody and have experienced family law attorneys who can help. Contact us to schedule a consultation. https://westchesterfamilylaw.com/; info@WestchesterFamilyLaw.com; 1-914-738-7765