Child Custody When Parents Live in Different Countries

Maybe your ex just told you about a job offer overseas and wants to take your child along, or your child has lived abroad with the other parent and you're wondering where you can even file. In most cases, the court that decides custody is the one in the place where your child has actually been living. A U.S. court treats a foreign country much like another U.S. state. If a child is wrongfully moved between countries that are treaty partners, an international treaty gives you a way to get the child sent home so that home court can decide.

The first question is which court gets to decide

Before any judge considers who should have custody, the judge has to decide whether their court has the power to hear the case at all. In the United States, that question is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Forty-nine states, the District of Columbia, and the U.S. territories have adopted it. It controls which court can issue an initial custody order and how orders are enforced across state and international lines.

The UCCJEA's main test is the child's "home state." That is the place where the child lived with a parent for at least six consecutive months immediately before the case was filed. The rule doesn't stop at the U.S. border. Section 105 of the act tells state courts to treat a foreign country as if it were a U.S. state, both for deciding jurisdiction and for enforcing custody orders. So if your child has spent the past year living with the other parent in another country, a U.S. court may well conclude that the case belongs there, not here.

A real example of a court turning a case away

Courts outside the United States apply similar thinking. In Atout v. Atout, 2016 ONSC 5487, the Ontario Superior Court of Justice in Canada was asked to make a custody order. The children had lived their entire lives in Qatar. The court held it had no jurisdiction because the children were not habitually resident in Ontario.

The lesson carries across borders. Moving to a new country, or filing in the country where you happen to live, does not by itself give that country's courts the power to decide custody. The child's settled home matters far more than either parent's address.

Will a foreign custody order hold up in the United States?

A custody order made abroad isn't worthless here. Under the UCCJEA, a U.S. court will recognize and enforce a foreign child-custody determination if the foreign court's process was in substantial conformity with the UCCJEA's jurisdictional standards. The main exception is when the foreign country's custody law violates fundamental principles of human rights.

This works in your favor if you have a valid order from the country where your child lived. It also means a parent can't usually escape a legitimate foreign order just by bringing the child to the United States and starting over.

When a child is taken or kept abroad: the Hague Abduction Convention

Jurisdiction rules assume both parents follow them. When one parent instead removes a child to another country, or keeps the child there past an agreed visit, the main legal tool is the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The Convention is often misunderstood. It does not decide who gets custody. Its purpose is to secure the prompt return of a child who was wrongfully removed from, or kept outside, their country of habitual residence. Once the child is back, the courts in that home country decide custody and visitation. In other words, it is a remedy after the fact. It returns the case to the right courtroom rather than policing borders ahead of time.

Several features make it work in practice:

• It only applies between treaty partners. The United States has a Convention partnership with countries such as the United Kingdom and the Dominican Republic, but not with India. Whether the other country is a U.S. partner is one of the first things to find out.
• Each country has a Central Authority. Every participating nation designates an official office to process applications and coordinate with other countries. In the United States, that is the Department of State, which can also use government databases to help locate abducted children.
• Paperwork moves more easily. Documents submitted as part of a Hague application are admissible in a partner country's courts without the usual authentication formalities required for foreign legal records.

How the Convention works in U.S. courts

The Convention is put into effect in the United States by the International Child Abduction Remedies Act (ICARA), 22 U.S.C. § 9001 and following. Under ICARA, both state courts and federal district courts can hear Hague petitions. Either can be the place where a return case is filed.

ICARA also addresses cost, which is often a major worry in international cases. Under 22 U.S.C. § 9007(b)(3), a parent who wins an order for the child's return may recover necessary expenses and attorney fees incurred because of the wrongful removal or retention.

When the Convention isn't enough

The Hague return process isn't available when the other country isn't a U.S. treaty partner. Even among partners, some countries follow it less reliably than others. Congress responded with the Sean and David Goldman International Child Abduction Prevention and Return Act of 2014 (ICAPRA), 22 U.S.C. § 9101 and following. It requires the Secretary of State to send Congress an annual report on international parental child abductions. The report identifies countries that show a pattern of noncompliance and is worth checking if your child's other parent lives in a country you're unsure about.

Criminal law applies as well. Under the International Parental Kidnapping Crime Act, 18 U.S.C. § 1204, it is a federal crime to remove a child from the United States, to attempt to, or to keep a child outside the country with intent to obstruct another parent's lawful parental rights. The penalty is up to three years in prison.

Preventing an abduction before it happens

Because the Convention mostly acts after a child is gone, prevention matters. The United States does not check every traveler leaving the country. It also does not universally require written consent from both parents for a minor to travel internationally. A child can leave the country more easily than many parents assume.

One concrete safeguard is the State Department's Children's Passport Issuance Alert Program (CPIAP). Once you enroll your child, you are notified if anyone submits a U.S. passport application for them. The program covers unmarried children under 18. To enroll, you submit Form DS-3077, along with proof of your identity and your parental rights, to the Prevention Branch of the Office of Children's Issues.

What about your child's own wishes?

Older children often have strong views about which country and which parent they want to live with, and those views are heard. But no U.S. state lets a minor child unilaterally choose a custodial parent. Every state applies the "best interests of the child" standard, and the child's wishes are one factor the judge weighs among many.

Some states give older children a formal voice. In Georgia, for example, a child who is at least 14 may state a custody preference, but the judge can still override it. Across states, courts look at the child's maturity, understanding, and reasoning, not just age. A thoughtful 13-year-old may carry more weight than an impulsive 16-year-old.

Getting legal help

International custody cases involve two legal systems at once, so experienced counsel matters. For parents with limited means, the State Department coordinates the Hague Convention Attorney Network (HCAN). It is an all-volunteer group of private attorneys who offer free or reduced-fee representation to eligible low-income parents in incoming return and access cases, meaning cases where a child has been brought to or kept in the United States.

The order of questions follows this article. First work out where your child's home is, because that decides which court has jurisdiction. Then confirm whether the other country is a Hague partner, which decides whether return is available. Finally, use passport alerts and good legal advice early, because preventing a wrongful move is far easier than undoing one.

Sources (3)

• U.S. Department of State, Bureau of Consular Affairs – International Parental Child Abduction, Hague Abduction Convention, ICARA, ICAPRA, UCCJEA, CPIAP, and HCAN resources: travel.state.gov
• U.S. Department of Justice – International Parental Kidnapping Crime Act, 18 U.S.C. § 1204: justice.gov
• CanLII – Atout v. Atout, 2016 ONSC 5487 (Ontario Superior Court of Justice): canlii.org