When parents decide to end their relationship and divide their lives, the children are a huge piece of the equation.
Questions invariably emerge: With which parent shall the child end up living? How much time will each parent get to spend with their child? And, of course, in situations where the separation involves international borders: In which country will the child live?
Discerning the appropriate answer to the question — and basing it on a firm legal foundation — can be the difference between a life of hope or harm for a child.
What’s decided in the courts in some cases can literally be a matter of life and death.
It’s Complicated
Usually when a couple breaks up, one party wants to go “home” to live near family, whether that’s across the street or, for our purposes here, across the world.
Whether they go or stay, children can become endangered, and various factors can influence the process of deciding where they should live.
Sometimes, kids face the prospect of being returned to an abusive or neglectful parent. Or perhaps the parent is not abusive but offers unbearable living conditions or resides in a country that fails to respect human rights.
On the flipside, maybe the home life is just fine, and the departing parent sees taking the kids away as one last twist of the proverbial knife.
In my 31 years focusing exclusively on family law and frequently dealing with international and diplomatic issues, I’ve seen almost everything. We recently were called in on a case in Turkey where a parent tried to block a departure, even when leaving was the best way for his medically fragile child to access treatment in the United States.
In other rare cases, we’ve also seen children old enough to voice their own opinions about the desired place (and parent) of residence in a court proceeding.
Civility in these matters is of course the ideal, but when a dispute does emerge, we’ve found that success often comes down to parents knowing they need to find representation from someone who understands how international treaties intersect with the specific law in their jurisdictions.
Understanding The Hague Treaty
With stakes this high, it helps to know how international courts decide the outcome in cases of child abduction. The Hague Convention on International Child Abduction, an international treaty ratified by more than 90 nations, establishes the guidelines that courts must use when deciding where a child should be.
A judge, applying the Convention’s criteria, decides which country’s courts should make the determination about which parent should have custody of the child. The Hague court’s decision is jurisdictional, but the gravity of the decision can determine the safety of the child.
When a child is abducted, we international family law attorneys are retained, first by the left-behind parent to try to obtain return of the child and then by the taking parent to try to keep the child in the country to which they have been taken.
Both sides try to get to the root of the reason for the taking and the evidence which bears this out. The investigation into both parents’ motives and actions can be extensive, given the gravity of the issue and the international reach of the evidence.
In very short order, six weeks from the inception of the case to its finish, the Hague court holds the trial. Often a number of witnesses and sometimes even one of the parents appears remotely via video conference. Both sides lay out their evidence for the judge’s decision.
One parent is always elated and one is often devastated, and a child’s future hangs in the balance.
Parents can greatly reduce the chance that their child is abducted by being honest with themselves about the quality of their relationship and extremely attentive to any warning signs that the other parent is preparing to abduct. The usual ploy is a parent’s return home for a vacation that winds up being a veiled attempt at forever.
An international family law attorney can help you prevent your child’s abduction or ensure that a child’s return to a country is open, above-board and enforceable.
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Learn more about The Manely Firm’s international family law practice at www.allfamilylaw.com.
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