With the relatively new increase in international marriages comes an increase in international divorces. When two individuals from different countries get divorced, the process can be incredibly complicated. This is especially true if there are children are involved. In many cases, a parent may choose to wrongfully relocate the child from his or her home country.
For example, a woman from the U.S. and a man from the U.K. may get married and ultimately move together to the woman’s hometown in Texas. After a few years, the couple has a child and raises her in Texas. More time passes, and the marriage isn’t working out. The couple decides to get divorced and the man plans to return to the U.K. A child custody dispute occurs, culminating when the father takes the daughter to the U.K. without the mother’s consent.
These types of cases are governed by international family law and child abduction law, specifically the Hague Convention on the Civil Aspects of International Child Abduction (often simply referred to as the “Hague Convention” or “Hague”). If the aforementioned situation sounds familiar, or you are dealing with any other international child custody issue, contact Walters Gilbreath, PLLC right away. Our Texas-based international child custody lawyers are ready to take immediate action to return your child safely to his or her home country.
Contact us now at (844) 451-1220 to find out how we can help.
Understanding the Hague Convention
The Hague Convention was enacted in the United States in 1980 as a way to respond to the problem of international child abduction. The treaty does not grant child custody rights, but it does provide a legal process for returning a child to his or her country of “habitual residence” after the child has been wrongfully moved to a foreign country.
If your child has been wrongfully taken to another country by the other parent or another relative, you must file a custody action with the local court that requests the court to invoke the Hague Convention. The court will then verify that both countries have enacted the Hague Convention and will determine which of the two countries has the authority to hear the custody dispute.
The Process of Returning Your Child Home
As the petitioner, it is your duty to prove that the child was removed from his/her country of “habitual residence.” This simply means that the child was taken away from the country where he/she primarily lived. Note, this is not necessarily the same country where the child was born, but rather, where the child lived as a resident.
To determine where the child was a habitual resident, the court will generally look at several factors, including but not limited to:
- The child’s ordinary residence immediately prior to the alleged wrongful removal
- The intentions of both parents regarding where the child would live
- The location/residence history of the child (where he or she has primarily lived in the past)
- The location history of the child’s school, caregivers, home, etc.
- How settled the family was prior to the alleged wrongful removal and/or retention
For example, if your son was born in a foreign country but your family moved to Texas when your son was still an infant and your son was raised here, you will likely be able to establish that your son is a habitual resident of the U.S. However, if you have only recently moved to the U.S., or your family has moved around frequently over the course of your son’s life, the process may be more difficult.
After you have filed the action with the court, the process works fairly quickly. Under Hague Convention stipulations, the court and any other administrative parties must reach a final decision regarding the case within six weeks of the initial filing.
What Is Wrongful Removal & Are There Defenses to Wrongful Removal Claims?
According to The Hague Convention, wrongful removal occurs any time a child is relocated or retained in a foreign country in such a way that violates the custody rights of the other parent. This includes any time a child is removed or retained by a joint conservator without the other parent’s consent. If you and the other parent of your child shared custody of your child and you did not agree to the other parent moving or keeping your child in another country, this can be considered wrongful removal/retention.
There are several defenses available to those accused of wrongful removal and/or retention, including:
- The petitioner consented to the removal/retention
- The petitioner was not exercising his or her custody rights at the time of removal
- Returning the child to the petitioner would result in serious risk to the child’s physical or psychological wellbeing
- Returning the child to the petitioner’s country would place the child at risk of human rights violations and/or risks to his or her basic freedoms
- The child is old enough/mature enough to object to being returned to the petitioner and has done so
- More than one year has passed between the time of the removal/retention and the petitioner’s commencement of filing a court action
Whether you need immediate assistance in returning your child home, or you have been unjustly accused of wrongfully removing your child, our firm can help. Our Texas international child custody attorneys understand the importance of acting quickly in these types of cases, and we always seek to help you protect your child’s best interests.
Contact us online or call (844) 451-1220 now to speak with a member of our legal team about your international child custody case. We serve clients throughout Houston, Austin, Dallas, and beyond.