Complex child custody disputes affect both parents and children. In the case of international child custody disputes, the uncertainty that accompanies navigating foreign custody laws may cause even greater amounts of stress for all of the parties involved.
Hague Abduction Convention
The U.S. participates in the Hague Abduction Convention. This treaty allows international cooperation to reduce parental abduction. The goals of the Hague Convention also include:
• Encouraging the return of children to their country of residence
• Organizing the right of access to the abducted children
• Allowing custody decisions to be made by a court in the child’s country of residence.
The Convention applies only to the countries that signed the treaty.
Defining habitual residence
One of the difficulties courts face when interpreting the Hague Abduction Convention involves figuring out what counts as the country of “habitual residence.” The Convention does not define the term or make it clear what criteria should be considered in determining the country of habitual residence. Some factors that courts may consider when determining the child’s country of habitual residence include:
• History of parental employment
• Purchase or renting of a home
• Bank account locations
• Professional licenses
• Driver’s licenses
One of the issues affecting complex child custody disputes involves whether the marriage was stable at the time that the couple moved there. If the couple moved to the country during a time of marital instability, one of them may argue that they did not intend to live in the country full-time. This allows the parent to argue that they did not intend to establish a habitual residence in the new country.
Any parent taking part in an international child custody dispute should expect the process to involve a complex discussion of both the Hague Abduction Convention and national custody laws. The court cases will require a thorough understanding of the law in both countries.