Issues with international custody

On Behalf of | Nov 9, 2020 | Child Custody

In today’s global society, marriage and family often cross international borders. Even when people choose to make a home in one place, such as Connecticut, they may have ties in another country. When these marriages end in divorce, those ties could pull them outside of the United States. In other cases, other international interests or opportunities may lead to one parent  seeking to relocate overseas and not wanting to leave their child behind. If you are facing an international custody matter, you may be looking for more information regarding how the law treats such cases.

 Connecticut law regarding child custody and relocation

When a couple considers Connecticut their main residence, their divorce will likely fall under the jurisdiction of Connecticut courts. That would generally mean that Connecticut courts will also have jurisdiction over any child custody questions, even if one of the parents has citizenship in another country.

Determining what government’s laws control an international custody case is not always straightforward, however. Frequent travel and long stays in other countries may raise questions regarding a child’s residency.

Connecticut laws include many factors for a judge to consider when deciding custody matters, all meant to determine what is in the best interest of the child. These factors include, but are not limited to:

  • Each parent’s ability to understand and meet the needs of the child
  • The child’s relationship with each parent, siblings and other family members
  • The child’s developmental needs and temperament
  • Behavior by either parent meant to manipulate or coerce the process
  • The mental and physical health of all family members involved

In view of these requirements, relocating a child to another country is no minor consideration. The parent seeking to relocate must prove to the court that it is in the child’s best interest to move so far from the place they call home. The parent may also have to assure the court that they will enforce and encourage any shared custody arrangement with the other parent, or help facilitate visitation. Failure to do so could invoke issues of international law.

International law and the Hague Abduction Convention

In certain situations, Connecticut courts may have to defer to international law regarding custody matters. The Hague Abduction Convention is an international treaty designed to protect children from international abduction by a parent and to enforce the local custody order where the child has been a habitual resident. The treaty enforces the idea that one nation should not interfere with the judicial system of another nation.

If one parent relocates a child to another country without permission from the court and the other parent, the other parent may decide to file a Hague Application to request that the child be returned. A return is not automatic, however. The two countries will review the case for certain factors, including:

  • Are both countries members of the convention? The agreement only applies to member countries.
  • Where is the child’s habitual residence? Sometimes this question is more complicated than it sounds. As noted above, families with international ties often travel between countries, and sometimes stay for long periods.
  • Does the child face physical or psychological harm if returned? Although the convention respects national sovereignty, it also looks out for the welfare of the child in question.

These are just a few examples of questions the governments may ask. The Convention partners have also agreed to create peaceful visitation and access between parents of different countries.

Connecticut courts could be asked to intervene in cases where a parent has taken a child out of the U.S. without permission or has failed to abide by shared custody or visitation agreements. They may also assist other countries when a parent brings a child into the U.S. from another country.

If a parent wishes to relocate to another country with their child after the court has granted an initial custody order, he or she must first seek a modification of that order. Otherwise, they may find themselves in violation of international law and risk losing their custodial rights.

Modifications of existing custody orders

Situations can change after a divorce in unforeseen ways. In some cases, courts must revisit custody issues long after they issue the initial custody order. Parents can seek a modification of their order for a variety of reasons, including:

  • One parent becomes ill
  • Significant changes in either the parent’s or child’s schedule or needs
  • One parent’s home becomes unsafe
  • A job change to a new location

Connecticut law’s main requirement for seeking a modification to custody is a substantial change in circumstances that is material to the child’s well-being. Although changes to visitation have a lower threshold, the courts have been adamant that a change to custody, whether physical or legal, must be based on a substantial change. See, e.g., Clougherty v. Clougherty, 162 Conn.App. 857, 133 A.3d 886 (2016). A move to another country would undoubtably qualify.

Child custody issues are complicated matters in Connecticut in the normal course. Questions of international custody only make them more difficult. If your custody matter extends beyond the U.S. border, you should consider entrusting your case to a family law attorney with international custody experience.