You met and fell in love with someone from another country. You decided to marry and have a child, and for a while, your family was happy. When the arguments began, you figured it was simply part of marriage, but as they increased, you realized that divorce was on the horizon.
Your spouse came to the same realization, and whether it was before or after the divorce proceedings began, he or she left the country with your child without receiving court authorization to do so. It may be possible to bring your child back to the United States or at least receive the visitation rights to which you are entitled.
The Hague Convention
More than 90 countries abide by the Convention on the Civil Aspects of International Child Abduction, commonly referred to as The Hague Convention. It provides standardized procedures to speed up the return of your child and to help make court ordered visitations happen if the child remains in the other parent’s country. Here in the U.S., the Hague Convention falls under the International Child Abduction Remedies Act.
How do you seek relief under the ICARA?
The act requires you to meet certain requirements and take certain steps when seeking the return of your child, who must be under the age of 16. Those requirements and steps include the following:
- Your child must have habitually resided here in the U.S. prior to his or her removal from the country by the other parent.
- No more than one year from the date the other parent removed your child from the U.S. may pass before filing a petition.
- The other country must participate in the Hague Convention.
- You must file a petition in either federal or a New York court.
- If a federal court denies your federal petition, you must appeal within 30 days of that ruling.
- A valid custody order does not have to be in place to file under the act. However, the removal must be in violation of your parental rights.
- You attempted to exercise visitation or custody rights prior to the child’s removal from the country.
The Hague Convention may not be the only legal option you have. Other state and federal laws may prove useful. However, this avenue allows you to deal with the other country (as long as it adopted the Hague Convention). You may need to take other steps and meet other requirements as well. This list includes the basics of the process only.
Potential obstacles and defenses of the other parent
Even though the courts of both countries may be sympathetic to your plight, you may still encounter the following obstacles and defenses from your estranged spouse that could cause delays:
- You agreed that the other parent could take your child out of the country.
- You have no right to access or custody of your child.
- Your child’s return puts him or her at “grave risk” from you or the country’s environment.
- Your child’s age allows him or her to choose to remain with the other parent in another country.
- You encounter language barriers.
- You may have trouble locating your child and the other parent.
You could face additional obstacles as well. For instance, going through the process may be expensive. However, if you prevail, the court may award you the cost of your attorney’s fees.
You aren’t alone
During this time, you probably turn to your family and friends for emotional support. They help you feel less alone in your situation and often provide a shoulder to cry on when you need it. When it comes to getting your child back, however, you may want to turn to local legal resources for help through this difficult time.