International Child Custody: Moving Child to Another Country

New York Family Law Attorney Chaim Steinberger

Video Transcript:

Chaim Steinberger:

This is heavy stuff with no easy answers.

Rob Rosenthal:

The determining of child custody can be difficult on the most usual of circumstances. What about international custody dispute? Well we're gonna find out right now, because that's what we're going to ask the lawyer. Hi again everybody, I'm Rob Rosenthal with AskTheLawyers.com, and my guest is New York City attorney Chaim Steinberger, I wanna tell you right off the top, if you'd like to ask Chaim questions about your situation, it's easy, just go to askthelawyers.com, click the button in the upper right hand corner that says, Ask a Lawyer, and you can do it right there. Chaim, good to see you as always. Thank you for making some time to help us do.

Chaim Steinberger:

It's always my pleasure to be with you, Rob. 

Rob Rosenthal:

We're talking about international child custody. How does a dispute with international child custody differ from, say, where both parents live in New York?

Chaim Steinberger:

So the technical legal term for these interjurisdictional disputes, and this is a Latin term that maybe some of the our viewers won't be familiar with is oy vey. It's a major problem, I mean custody battles are always terrible battles, and how can the judge really pick between two, let's say not perfect parents, but between two good parents, and how do we make these decisions? They are always difficult. Now, we add to that a whole new level of complexity when we have different jurisdictions. So there are a series of laws, but before I start talking about those laws and give you the names of them, I want to sort of lay it out, so I assume Rob that you follow sports and you know the difference between a home game and an away game. Okay, so there are a series of laws, we got tired here in New York... We got tired of having the New York State Troopers lined up on one side of the George Washington Bridge and the New Jersey State Troopers lined up on the other side of the bridge shooting at each other because dad in one jurisdiction got an order of custody and mom in the other jurisdiction got an order of custody and they would steal the child back and forth, so pretty much every jurisdiction in the United states, and first I know that I'm speaking about intranational...

Well, within the United States, but those are the same issues as international ones, so I'll start here and then we'll move on there. We got tired of having conflicting orders from different jurisdictions, so The Uniform Law Commission proposed a promulgated a uniform set of rules that have been pretty much adopted by all 50 states and territories, and they're called... There were a couple of iterations, but the last one is the UCCJEA, which stands for the Uniform Child Custody Jurisdiction Enforcement Act. And what that act, that act does not determine which parent gets custody, it only determines which court house is going to decide the issue of custody, but of course... And so, is it going to be in dad's home state jurisdiction? Is the battle going to be in mom's home state jurisdiction, and of course, having the case decided in your locale gives you advantages, you can hire a local lawyer, you can meet with your lawyer if you have to travel far away and hire a lawyer in a different jurisdiction, it adds a level of complexity. Every time you have to appear in court, if you're not appearing by Zoom before the pandemic, you would have to travel down to the courthouse again and again and again, and so having it in your local jurisdiction is a major advantage for litigants. 

If it's international, most countries are...Many countries have signed on to a treaty, and the treaty, the one that's relevant to this is The Hague treaty on the Convention on the International Abduction of Children, and there are similarities between the UCCJEA and The Hague, and that's why I'll sort of speak about them interchangeably unless it makes a difference. So under the UCCJEA, we take a look to see where the home state of the child is. I'm assuming there has been no prior order, if there were prior orders, that's a whole another level of complexity, but if there hasn't been a custody order, we take a look to see where as a child resided for a continuous period of six months, and that becomes a child's home state, and only the home-state jurisdiction can decide custody. So if one parent takes a child and absconds from New York to a different state, you want to be sure to start an action really quickly, come into New York court, have a New York judge issue what is known in Latin as a writ of habeas corpus which means delivered the child, bring the child back to New York and let the New York court determine where the child should live temporarily and then permanently where the child should live in which parent should have custody.

So you want to make sure that you do that before six months has elapsed, because once six months have elapsed, then the child has established a home state jurisdiction in some other jurisdiction, and now you have to travel to that other jurisdiction to litigate the custody visitation issues. Once the court has issued, once a court legitimately takes jurisdiction of a case and issues a custody order, any type of custody order, that state now has continuing exclusive jurisdiction, and as long as either one of the two parents or the child continue to live in that jurisdiction, that jurisdiction continues to hold, that court continues exercise exclusive jurisdiction, and it's only that local court that can release jurisdiction, so no other court can come in and take away jurisdiction if everybody moves out of the state, then another court can say, Hey, nobody's in that state anymore now, I'm taking it. There's something else called vacuum jurisdiction, where no state has home state jurisdiction, so there are of course, lots of nuances to... This is a very complex area of the law, and I'm trying to give you a general overview to make it understandable to your listeners. 

Rob Rosenthal:

Talk about...Let's back up a little bit, let's talk about even before divorce, just in general, can and one parent take a child out of the country without the other parents wishes, if that one parent, say, is from another country? Are they able to do that even if they're before divorce?

Chaim Steinberger:

So let me distinguish our two questions: One should may a parent do that, and the second one is, what are the effects of the parent does it? So let me start by saying, in New York state, a child that is born is just naturally considered to be in the custody of both the mother and the father, neither one of them has presumptively more rights than the other, judges... Again, let me start within the United States, judges get really upset when a parent picks a child up and absconds to another jurisdiction, judges really don't like that, and it's very likely that a judge will require the moving away parents to come on back and bring the child back. I know that I've got friends who do a lot of domestic violence work, and they even warn their domestic violence victims not to move out from one apartment to an apartment three blocks away, because the judge may get upset that they took the child away from the father, and so that's a really hot issue. Judges can get really upset. If it's still within the jurisdiction, I don't understand why it should be a really big issue, but judges can get upset. When a parent absconds from the United States and goes, Oh, and by the way, if you know about this before, you can call the State Department, you could put a restriction on the child's passport, there are things we can do to prevent the other spouse from absconding with children, so do not rest on your laurels if this is a fear, if you think it's an imminent fear that something like this might happen, get a really good lawyer and put as much protection as you can in place.

I was involved in a case where we have to send the FBI to find a child and the FBI came zooming in with 15 squad cars and they took custody of the child and we brought the child back and the mother came into Court crying and the judge said Why did you ignore my order, you should have come back here, so... This is heavy stuff with no easy answers, if a parent absconds with the child to another jurisdiction, it becomes more complicated, so every state in the union, by the federal constitution clause is required to give full faith and credit to every other state's orders and judgments. So if a New York court issues a judgment of custody, it's valid in every other state, every other state has to honor it. If it's in a different country, will now we're playing a different game. So in different country, so if the other country is a signatory to the Hague convention, then we have some protections, there are some countries that are signatories, but they don't really enforce... Or they didn't enforce it. 

So this is a country-by-country-specific inquiry that you have to see how the other country is going, to the extent you can prevent the other parent from taking the child out of the country, if you've allowed the child to go out of the country, I had somebody call me the other day, the person agreed to allow the spouse to move to a different country, they've been in the other country, a year and a half, it's like, Okay, you have to litigate the case in that other country, there's no way around it, so you want to make sure... now for the Hague convention, it's not a six-month period. It's a one-year period. And in the Hague convention, it's called the child's state of habitual residence. And so, if a parent removes a child from the child's state of habitual residence in derogation of the other parent's custodial rights, and custodial rights may mean the other parents is allowed to see the child every Tuesday and every Saturday, and when you remove the child, they've lost their Tuesday and Saturday parenting time rights, that is enough under the Hague convention to require the child to come back. Now, the Hagueonvention has a lot of protections, they will... If you win a Hague convention case, the Hague convention requires the other party to reimburse your legal fees, so it's a double or nothing type of case, also a Hague petition in the United States is on a really fast track as opposed to other custody case that could take months and even years, a Hague convention case has to be decided within 20 days, if 20 days go by, there's no decision, we can expect the United States Department of State to pick up the phone and call the Judges, judges. And these cases can be brought and typically are brought in federal court houses, so these are super quick cases and you can win or lose really quickly, so you've got to get your ducks in a row, file your petition and try to enforce it. Now, of course, the enforcement of the Hague petition has to happen in the jurisdiction where the child was living, so if the child moves out of New York and is in France, then you'd have to bring a Hague petition and France and try to bring the child back.

Rob Rosenthal:

That sounds very complicated. My take away is it's very complicated, it's important to get the right attorney to help you with all this.

Chaim Steinberger:

That is so true, all lawyers are not alike, and having the right lawyer is so important.

Rob Rosenthal:

Always an interesting conversation when we talk Chaim, thank you so much for making some time to answer our questions.

Chaim Steinberger:

It's always my pleasure to be with you Rob.

Rob Rosenthal:

That's gonna do it for this episode of Ask the lawyer. My guest has been New York City attorney Chaim Steinberger. Remind you, if you'd like to ask Chaim questions about your situation, it's easy to do, head over AskTheLawyers.com, click the Ask a Lawyer button at the top of the page and ask away right there to walk you right through the very simple process. Thanks for watching. I'm Rob Rosenthal with Ask the Lawyers.

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