Custody battles always involve heartbreak and they are never an easy process for anyone involved. However, imagine going through a custody battle across international borders.
For example: Maria and Jeff got married and settled in Scottsdale. They then had three beautiful children. However, after 15 years of marriage, they both decide to get a divorce and Jeff is awarded custody of all three children in Arizona. During Maria’s parenting time, she decides to take all three children to Mexico and refuses to return them.
Another example: Judy and Ross divorce and have one daughter together. The relationship between the two post-divorce is far from ideal and Judy wants to take their daughter on an international trip. Ross is worried because Judy has family abroad and, early in their relationship, told him that she would move to Vietnam if she ever ran into legal problems in the United States.
What is the Hague Convention?
These two examples highlight a critically important body of law governing overseas custody disputes called the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is a group of model international laws operating between countries that have agreed to participate in the Convention. In Hague signatory countries, a mostly uniform set of procedures determines the proper location for custody disputes taking place across international borders.
Unfortunately, many nations do not participate in the Hague Convention or have adopted exceptions that further complicate matters. For example, although South Korea is a Hague country, service of process (the initial act of delivering the paperwork to a party in a lawsuit to open the case) is uniquely challenging in that country because documents are required to be translated in multiple languages regardless whether the recipient reads English. Although Hague provisions generally apply there, it is still a challenging task to initiate a civil action.
The confusing application of the Hague is further compounded in countries that are not signatories. In the example of Judy and Ross, Vietnam has not joined the Hague Convention. Accordingly, custody disputes involving a child in Vietnam would have to comply with Vietnamese law, where the courts may choose not to enforce a United States custody order.
What does the Hague Convention do?
When functioning as intended, the Hague Convention essentially creates a court procedure to return the child to the custodial parent if the child was wrongfully taken without the custodial parent’s permission. The Hague Convention states that when dealing with parental child abduction and when the parent has custodial rights, the child must be returned to the country where the child habitually resides.
In 2013, the Ninth Circuit Court of Appeals considered a notable Hague case in which a mother claimed under the Hague convention that the father abducted the children to the U.S. from Mexico. The two were living in Nogales, Mexico and eventually the father moved to Arizona for work. The children spent time in both Mexico and in Arizona, where they would stay with the father during the week and with the mother over the weekends. After their relationship started to deteriorate in 2010, the mother made physical threats to the father. The father reported to child welfare agencies in both Mexico and Arizona and then refused to return the children to the mother on her visit. The Ninth Circuit Court of Appeals found that the father did not violate the Hague Convention because the children habitually resided in Arizona.
How can I protect myself?
Hague cases can be quite complicated because they involve international laws in custody proceedings that are already intricate. Especially in Arizona, where we share a border with Mexico, cases like these are not uncommon.
Arizona law provides some precedent for international travel, and the courts have enforced some creative mechanisms to ensure that children are not whisked away to foreign (non-Hague) lands never to return.
For example, in Lehn v. Al-Thanayan, the Arizona Court of Appeals upheld a $2.5 million bond per child required for a parent to travel to Kuwait. The trial court was concerned that the parent would take the children to the country under the guise of a “vacation” and simply not return. The concern was compounded by the fact that the target country is not a Hague signor and its laws are perceived as hostile to foreign nationals. Pursuing a court order to return the children to the United States would be prohibitively expensive, so the court required the traveling parent to post an immense cash bond to guarantee the children’s return—or at least enable the local parent to seek legal intervention in the event of a dispute.
Each case is unique, and international custody cases are among the most complex matters imaginable in family law. Creative solutions exist, but the best defense to an international custody dispute is to avoid having it in the first place by carefully structuring your divorce or separation and trying to predict potential issues in advance.
Leslie A. Satterlee is a partner with Woodnick Law and has been practicing family law exclusively since graduating cum laude from ASU’s Sandra Day O’Connor College of Law.
Markus Risinger joined Woodnick Law as a law clerk in 2012. Markus graduated cum laude from the Sandra Day O’Connor College of Law at Arizona State University.