Because of the ease of international travel and communications, the world is shrinking, which has facilitated a growing number of marriages between marital partners from different countries. When you are married to a partner who is the citizen of another country, the divorce process can be extremely complicated if you have children. Sometimes the other parent who is from another country will desire to leave the U.S. with the minor children.
While this issue can be litigated in a Florida family law court based on the best interest of the child standard, the situation becomes complicated when the parent who is a citizen of a foreign country decides to use self-help and simply leaves the U.S. The Hague Convention on the Civil Aspect of International Child Abduction (hereinafter “The Hague Convention”) is designed to provide a remedy when parents employ this form of self-help.
The Hague Convention is a multilateral treaty designed to provide the means by which a parent can have a child returned to the child’s country of “habitual residence” from another country that is a member of the convention. The convention requires that a child be returned to the nation where the child primarily resided before a parent or other party removed the child to another country. The term is not specifically defined in the treaty but is intended to be applied broadly toward the goal of the convention which is to deter unilateral action by a parent to remove a child from the primary country in which the child resides. When determining the child’s primary residence the court will look to a variety of facts, including historical location the child has resided, the living situation of the family prior to the dispute, intention of the parties and other relevant facts.
The function of a court in which a Hague Convention case is filed is not to determine custody or other substantive rights but to designate the country where the courts have jurisdiction to make the determination on the merits of custody issues. The Hague Convention determination dictates that the child is returned to the nation of his or her primary residence rather than to the parent who was left behind.
Hague convention cases are among the most complex child custody cases so it is essential to work with an experienced Florida child custody attorney. These cases involve special rules of procedure and evidence as part of The Hague Convention determination and subsequent proceedings in a Florida court once the child has been returned to the U.S. If your child has been unilaterally removed by a parent to a non-Hague Convention country, the situation can be far more challenging.
If you are involved in a parenting plan or timeshare dispute as part of a divorce or paternity case in a Florida court where you have concerns that other parent may remove the child from the country, you should notify your Florida divorce attorney immediately. An experienced West Palm Beach parenting plan attorney may be able to ask that your child’s passport be relinquished from the other parent to substantially reduce the risk that your child will end up overseas with the other parent.
