By: Attorney Shira Truitt
International child custody disputes can be complex and challenging to resolve due to the involvement of different legal systems and cultural differences. These disputes can arise when parents who are living in different countries are unable to agree on the care and upbringing of their child, or when one parent removes a child from their country of residence without the consent of the other parent.
There are several international legal instruments that are designed to address international child custody disputes and provide guidance on how to resolve them. One of the most important of these is the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that provides a legal framework for the return of children who have been wrongfully removed from their country of habitual residence. The convention applies to children under the age of 16 and is designed to ensure that they are returned to their country of habitual residence as quickly as possible, so that any custody disputes can be resolved by the courts in that country. This treaty, which has been ratified by more than 90 countries, provides a legal framework for the return of children who have been wrongfully removed from their country of habitual residence. Countries that have not ratified this treaty include the following:
Afghanistan Angola Bahrain Bangladesh
Bhutan Bosnia and Herzegovina Brunei Burkina Faso
Cambodia Cameroon Central African Republic Chad
Comoros Democratic Republic of the Congo Djibouti
Equatorial Guinea Eritrea Ethiopia Gabon
Gambia Georgia Guinea Guinea-Bissau
Guyana India Iraq Jordan
Kuwait Laos Lebanon Liberia
Libya Maldives Mali Mauritania
Moldova Mongolia Montenegro Morocco
Mozambique Myanmar (also known as Burma) Nepal
Niger Nigeria North Korea Oman
Pakistan Palestine Papua New Guinea Qatar
Russia Rwanda Sao Tome and Principe Saudi Arabia
Senegal Serbia Sierra Leone Somalia
South Sudan Sudan Syria Tajikistan
Tanzania Timor-Leste (also known as East Timor) Togo
Tunisia Turkmenistan Uganda United Arab Emirates Uzbekistan Vietnam Yemen
Zambia
It is important to note that this is not an exhaustive list; there may be other countries that have not ratified the Hague Convention on the Civil Aspects of International Child Abduction.
The Hague Convention on the Civil Aspects of International Child Abduction is triggered when a child has been wrongfully removed from their country of habitual residence, or when a child has been retained in a country other than their country of habitual residence in breach of the rights of custody attributed to a person, an institution, or any other body. For the Hague Convention on the Civil Aspects of International Child Abduction to be triggered, the following conditions must be met:
The child must be under the age of 16 at the time of the wrongful removal or retention.
The child must have been habitually resident in a contracting state (i.e., a country that has ratified the convention) immediately before the wrongful removal or retention.
The wrongful removal or retention must have occurred after the convention entered into force for the contracting states involved.
Once the Hague Convention on the Civil Aspects of International Child Abduction is triggered, the child is generally expected to be returned to their country of habitual residence as quickly as possible. This can be done through voluntary return, or through judicial proceedings if necessary. It is important to note that the Hague Convention on the Civil Aspects of International Child Abduction is not designed to resolve custody disputes. Rather, it is designed to ensure that any custody disputes are resolved by the courts in the child's country of habitual residence.
In addition to these international legal instruments, national laws and legal systems also play a role in governing international child custody disputes. For example, in the United States, the International Child Abduction Remedies Act (ICARA) provides a legal framework for addressing international child abduction cases.
In resolving international child custody disputes, it is important to consider the best interests of the child. This includes taking into account the child's physical and emotional well-being, their relationships with their parents and other family members, and their cultural and religious background. It is also important to involve the child in the decision-making process to the extent appropriate for their age and maturity.
References:
Hague Convention on the Civil Aspects of International Child Abduction. (1980). Retrieved from https://www.hcch.net/en/instruments/conventions/full-text/?cid=41
Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption. (1993). Retrieved from https://www.hcch.net/en/instruments/conventions/full-text/?cid=24
International Child Abduction Remedies Act (ICARA). (1988). Retrieved from https://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/pdf/USCODE-2011-title42-chap119-sec11601.pdf
If you need legal advice or a lawyer in Illinois or Missouri, please contact The Truitt Law Firm, LLC for assistance. For more information on The Truitt Law Firm, LLC or to schedule an appointment, please go to www.thetruittlawfirm.com.
