A child hugs her mom

International Child Custody Disputes: Legal Frameworks and Jurisdictional Issues

By Michael DiFalco

Child custody disputes can be complicated to resolve, even when both parents reside in the United States. That said, child custody rights do not end at America’s geographical borders. Parents of children still have the right to spend time with their children and participate in decisions about their children’s welfare no matter where they or their children live. 

Even if one parent resides in a different country than the other, both still have custody rights, but they may find exercising these rights to be more complicated than if both of them resided stateside.

The Overriding Importance of Jurisdiction

In an international child custody case, both parties must determine the country with the jurisdiction to resolve the dispute. Through a parenting plan, you and the other parent can agree to submit disputes to the courts of a particular country, provided that either of you or your child presently or previously resided there.

Otherwise, the country with jurisdiction will generally be the child’s home country, where the child principally resides. Still, even that determination can be complicated if their custodial parent recently moved with the child from one country to another. 

Child Custody Jurisdiction Complications

Every country is sovereign, which means that one country does not need to follow the orders or directives of another country. For instance, Mexico can order the United States to take a certain action, but the United States is not obligated to do so. Similarly, neither country can compel the citizens of the other to do or refrain from something.

These considerations, however, can create a legal nightmare for parents when their child’s other parent refuses to follow a divorce or custody degree from another country, and they may only be left with two options:

The Hague Abduction Convention

One danger present in international child custody situations is the threat of one parent abducting the child and either taking or keeping them in a foreign country. The Hague Abduction Convention provides a legal framework for resolving these disputes. Dozens of countries have signed the Convention, and in doing so, they have agreed to recognize and give effect to the custody orders entered by other member countries. 

For example, if you reside in the United States, but your child’s other parent resides in Australia and refuses to return your child to you, the Convention would allow you to seek the return of your child based on a U.S.-issued custody order or parenting plan. There are also mechanisms within the Convention to address situations where one parent is fleeing from country to country in an attempt to evade the legal process. 

Seeking Relief in the Other Parent’s Home Country

In situations that do not fall under those contemplated by the Convention, you may have to retain legal counsel in the other parent’s country of residence and seek relief from their courts. Obtaining a court order in the other parent’s home country solves the question of jurisdiction, as the other parent would be subject to the authority of that country’s course.

Such efforts are not without their disadvantages, though, as the other parent could flee the country before your matter is fully resolved.

How a Garden City Child Custody Lawyer From Aiello & DiFalco LLP Can Assist

Whether your child’s other parent lives across the street or halfway around the world, a knowledgeable New York child custody lawyer with Aiello & DiFalco can help resolve child custody issues swiftly. We can assist in drafting parenting agreements where one parent lives abroad and can help you take effective legal action to protect your rights. Contact us today to request a consultation.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.