When borders are involved, child custody issues become more complex. In this podcast, family law attorney John K. Grubb discusses the options and rights of parents who do not live in the same country – including the legal options for having a child returned after the other parent has taken the child out of the country without consent.
Facilitator: Dan Couvrette, CEO and Publisher of Divorce Magazine, Family Lawyer Magazine, and www.DivorcedMoms.com
Speaker: John K. Grubb, Family Law Attorney, MBA (accounting and finance)
John K. Grubb is a Board-Certified Civil Trial Law Specialist by the Texas Board of Legal Specialization, with an MBA in accounting and finance who has developed a leading law firm for high-asset divorce in Houston. He has received a number of accolades over his 30-plus year career, including the Martindale-Hubbell’s highest possible “AV” rating for both legal ability and ethical standards. John Grubb also has been rated as one of Houston’s Top Lawyers by H Texas Magazine. www.johnkgrubb.com
Custody and Jurisdiction in International Divorce Cases
John Grubb will share important information about:
- The Parental Kidnapping Prevention Act, including how it’s applied to divorce cases.
- Whether a foreign court will respect a United States court order to have the child returned.
- Factors to consider when dealing with a foreign court in an international custody dispute.
- How a parent seeking to have his/her children returned to the United States can avoid breaking international custody laws.
- Whether or not a parent can take the children for a holiday outside of the country without their co-parent’s permission.
- Whether or not a parent who has sole custody of the children can move to a different state/country with them, as well as if there’s anything the other parent can do to prevent the move.
- Rights a mother has in a case where a paternity test discloses that a father is not the child’s biological parent
- How child support works if the custodial parent lives in a different state or country.
- What happens to child support if the payor moves to another country.
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Read the Transcript of this Podcast Below.
Custody & Jurisdiction in International Divorce
Dan Couvrette: Hi, my name is Dan Couvrette. I’m the publisher of Divorce Magazine, and I want to welcome you to our divorce school session for today. I have the pleasure of speaking with John Grubb, a family law attorney and the founder of a leading law firm in Houston, Texas. John has experience dealing with international divorce and child custody disputes. You can learn more about John and his firm at www.johnkgrubb.com.
Today, John and I are going to be talking about International Divorce: Custody & Jurisdiction. It’s a pleasure to have you on the call with me today, John, talking about this subject.
John Grubb: Thank you, Dan. I’m looking forward to discussing this subject.
If one parent takes the children out of the country without the other’s consent, what are the legal options for having the children returned? How is compliance enforced?
There are a number of different options. Sometimes you use just one, and at other times you use all of them, or some type of combination. One of the first options that you have is to go into the court where the child resides, and get what is called a writ of habeas corpus, which is essentially an order to return the child back to that jurisdiction or the parent that lives in that city, state or country. The second option if they have taken the child out of the country is an international treaty called The Hague Convention on International Child Abduction, which allows us to go through what is referred to as a central authority, which in the United States is the United States State department. The United States State Department will cooperate and will make demand through the country where the child resides. And then proceedings can be initiated in the country where the child resides to compel the return of the child back to the United States. You can use that avenue if the child is in a country that has signed off on the treaty for the Hague Convention on International Child Abduction. Sometimes you use both remedies or methods trying to get the child back. So there are methods available. They’re not instantaneous. They do take time. Unfortunately, both of them are expensive to undertake.
If a United States court orders that the children should be returned to America, will a foreign court respect that order? How can a parent enforce compliance?
Most of the times the foreign country will respect that order issued by the US Court. Many times they will do it without even the necessity of going through the local court system. Many times the police, wherever the child is, will either directly enforce it or will bring sufficient pressure on the person that has the child outside of the United States so that the child is returned. If the country is not a signer to the Hague Convention treaty, still, in many cases, the country or the local courts will order the return of the child. Occasionally, you will get a court that just does not desire to participate, or a country that is somewhat hostile or antagonistic to the United States, or does not have a body of law that is developed under international custody situations. They will just disregard a American court order.
What are the factors to consider when dealing with a foreign court in an international custody dispute?
The primary factor is where the child’s residence has been prior to abduction. In other words, if the child has been living in a particular area for two or three or four years, the general principle that almost all countries adhere to is that if a dispute arises between the parents, that child will be returned to the jurisdiction where the parties last peacefully resided. There are a number of exceptions, but that is a very broad, general rule.
How can a parent seeking to have his/her children returned to the United States avoid breaking international custody laws?
The very first thing that a parent who has had a child abducted or taken out of the country without permission can do is go to the country and peacefully get the return of the child. Sometimes that can be handled diplomatically, and the parent who took the child out of the country will agree to surrender the child. However, that’s a very dangerous approach, because when you enter into another country, you basically agree to abide by those local laws. In many cases, if you just go to the daycare center, or the nanny or whatever, and pick up that child and go back to the United States, you’re in fact guilty or not guilty but can be charged with essentially kidnapping under the laws of that country, even though in the United States you have a complete legal right. So the best way to always handle it is through the American courts through the central authority of the United States State Department and through what we call a Hague Convention case.
I know you’re trying to simplify this for our listeners, but should this normally be handled working with a family lawyer who has experience in this area?
This is an area of the law where more and more of these cases are developing. But quite frankly, a lot of attorneys have never handled one of these cases. It just depends upon the attorney’s particular practice and where they are practicing. If you’re in a major city, such as Houston, which is one of the most diverse in the world, you frequently have these issues arise because you have so many people in Houston that are here from different countries, or people that live in Houston, whose spouses are in fact going to different countries all over the world.
If parents have equal parenting rights, can one of them take the children for a holiday outside of the country without their co-parent’s permission?
They generally can, at least from a legal standpoint. Although from a technical standpoint, it can sometimes be difficult because almost all airlines require that you have a written consent, if you’re divorced from the other parent to take the child outside of the United States. Furthermore, not only do they want a current consent letter they want it to be within the last 30 days, and they usually want it to be notarized. For example, I remember when my children were young, which was not that long ago. Anytime I travelled, even though I was married, if I were taking my children out of the country, I always had a signed notarized letter from their mother, authorizing me to travel outside the country, generally stating where I was going, the timeframes that were going to be involved, how I was going to be going, which airline, and then when I was going to be returning, method of travel, and where I was eventually going.
Can a separation agreement prevent an ex-spouse from taking a child and leaving the state or country?
It certainly can, particularly if it’s filed with the court. In many cases, if a person violates either an agreement which is filed with the court, many times that Separation Agreement serves as the basis for compelling the return of the child to the United States.
If one parent has sole custody of the children, can he or she move to a different state/country with them? Is there anything the other parent can do to prevent this from happening? How would such a move affect visitation schedules?
That’s really kind of two questions. One, about permission to move. And number two, what about visitation when a parent has moved? In some cases the Separation Agreement, or the divorce decree, specifically gives one parent the right to live anywhere without a geographical restriction. In that case they’re free to move. In other cases, even though the decree is silent as to whether or not the other parent can leave the state, the agreement or the court order is so broad that under the local rules and court decisions, the parent is free to leave without the permission of the other parent. And there is a third category of cases. It specifically says a child may not be taken out of such and such geographical area for the purpose of establishing a domicile in another jurisdiction. If a parent goes outside of what is sometimes referred to as the home state, or the area where the child lived and the other parent still lives, then you get into the issue of making adjustments to visit or have periods of possession with the child. In most cases, courts will make some type of accommodation and adjust the possession orders to take that into account.
I’ve had several cases over the years where a parent moved out of the state on what I call a dumb move. Following a boyfriend or girlfriend without regard to how that is going to affect the child and the visiting parent’s rights with the child. I have seen courts order the child return to the state. I have seen courts order the parent who moved out of the state to have the children on a flight on the first, third, and fifth Friday of the month, at no later than 4 PM. The parent would have to take them to the airport and pay for the tickets for them to return to the other parent, and then pick them up at the end of the weekend at the airport. I have seen a change in child support to accommodate the parent who remains in the home state so that they have money to go visit their child. This is where a court can get really creative, trying to make certain that the non-custodial parent isn’t paddled to see his or her children.
Let’s say the courts granted a parent permission to move to a different state/country with the children? Can the other parent appeal the judge’s decision? What is the process?
Yes, in most jurisdictions, the parent that remains in the home state can appeal to a court of appeals or a superior court. Usually, the general broad test across all of the United States for reversing some type of court order is two grounds. Number one, the trial judge just simply disregarded or did not properly enforce some type of state law that addressed the issue. If the state has a law that says as a custodial parent, you may not take the child outside of the state for the purpose of establishing another residence, then if a judge does not enforce that, the appellate court is going to say judge, you didn’t follow the state law and we’re going to reverse it. The second reason that most appellate cases will reverse a trial judge is they believe that the judge acted in a manner that was an abuse of discretion. In other words, they were so far out of bounds of dealing with the facts of the case as to lead the appellate court to the conclusion that the trial judge’s actions were arbitrary, capricious, not fair, damaging to the child. And damaging to the parents.
If the non-custodial parent – who is also the sole or major breadwinner – has been offered a great job in a different state/country, can he/she apply to have custody changed so as to take the kids with him or her? What about moving the whole family – including the ex-spouse?
Generally, the parent residing outside of the state may not go into a local court and get that court to assume jurisdiction or control over the children as long as the other parent remains in the locale where the divorce or the court order arose. We call it the home state provision. If couples were divorced in state number one, and one person continues to reside there, state number one will always have home state jurisdiction to determine any changes in custody. So that is the major factor that the court takes into account, is where was the home state.
You get these situations where the parties are divorced in California and after the divorce, mom moves to Texas, and dad moves to Chicago, then you no longer have a home. Generally speaking, the court where the child has peacefully resided is going to be the new court that establishes jurisdiction or authority to act in regards to the job.
If a paternity test discloses that a father is not the child’s biological parent – even if he has believed he was and acted as the child’s parent for years – does the mother have the right to move away with the child?
That just depends upon the particular court order that has been entered. That makes it more likely that the mother will be permitted to move. However, I have actually seen cases where the alleged father is not the father, and the trial court has ruled that that person has had such a long, continuing relationship with that child that to permit the child to be taken away from that parent would in fact be damaging to the child. I’ve even seen a few select cases where the non-biological parent, in fact, ended up with custody of the child based on the fact that they operated essentially as the child’s parent, that the biological mother of the child has some major parenting problems, but the biological father of the child is not involved, and that the person that is not biologically the father of the child is in fact the best one at being able to raise a child, it gets really complicated very, very quick.
What is the Parental Kidnapping Prevention Act? How is it applied in divorce cases?
You really have about three laws that all overlap somewhat. In the late early 80s, Congress enacted the Federal Criminal Kidnapping Act primarily to establish what is called Home State Jurisdiction, saying that if a question arises between which they can alter custody, then you look where the divorce decree or court order was issued. And as long as one person stays in that state and that locale, that court retains jurisdiction to modify custody. The Federal Parental Kidnapping Act also says that states may adopt laws that are consistent with that. Almost every state then adopted what is called the Uniform Child Custody Jurisdiction and Enforcement Act. They varied that principle a little bit. Really what they did is define it in greater detail and define the way it’s to be enforced some of the nuances of it. Meanwhile, you have the Hague Convention on International Child Abduction that the United States and another number of countries around the world signed, and all of these three really interrelate. And when doing your analysis as an attorney, you’ve got to be familiar with all three of these to be able to adequately advise a parent.
How does child support work if the custodial parent lives in a different state or country?
That’s an interesting thing. Generally speaking, say one person lives in Houston, another lives in New York, Russia, Pakistan, it doesn’t matter. They’re strictly on a case by case basis. Sometimes, depending on the individual facts, the court in the United States will in fact have authority to act over both parents. In other cases, they will not have any jurisdiction or authority to act for the children whose parent is in another state, or, more importantly, another country. In that case, you usually end up with two or three attorneys involved, one inside Texas and the other in the foreign country, coordinating the orders so that once a final order is issued by both states, the orders are in harmony. I had a case involving a person in Texas. His wife was in Indonesia. One of their children was born in Indonesia, one of their children was born in the United Kingdom. He wanted to be able to move to Holland and possibly to England. Before that order was signed by the Texas court, we had hired an attorney in Indonesia, we’d hired an attorney in Holland, and we hired an English attorney. We coordinated the drafting of the order, so that the order would be enforceable in the United States, in Indonesia, in the UK, and in Holland. Needless to say, that was a very expensive, time consuming, undertaking to make certain that we had an order that would literally travel internationally with these children.
If the payor of child support moves to another country, can he/she evade making child support payments? Is there any way the recipient can guarantee continuing to receive payments?
It is hard to get a guarantee that the parent who’s the recipient will get payment. Generally, broadly speaking, a parent moving out of the country cannot avoid paying child support. There are a number of laws in all of the states, and then there are foreign laws about enforcing child support. Generally speaking, you’re eventually going to be able to get your money as long as the obligor has moved to a rather sophisticated country. Unfortunately, many of the countries do not have as sophisticated and well developed a legal system as the United States, the English countries, the European countries, etc. If a parent moves to one of those local countries with an unsophisticated judiciary and an unsophisticated body of laws, they may be able to escape paying child support. Unfortunately, if they ever returned to the United States, even years later, they may end up finding themselves still having to pay their ex-spouse or the custodial parent.
Dan Couvrette: I want to thank you for your time and I want to remind our listeners just how complicated interstate and international child custody issues are. I highly recommend that you hire somebody like John who has years and years of experience working in this area, because it’ll make a significant difference for you as you go through the process. This is not something you want to undertake with an inexperienced lawyer and you need to hire the best you can.
John, thank you for your time. If you’re a person in Houston Texas who is considering a divorce or needs help with your divorce I highly recommend contacting John both because I’ve known him for 15 years and because he is very highly regarded by his family lawyer colleagues and other professionals who know him.
You can learn more about John by visiting his website at www.johnkgrubb.com.
I encourage you also to listen to other sessions in TheDivorceSchool.com curriculum as there is a tremendous amount of information to help you if you’re contemplating a divorce, going through divorce, or recently divorced. Thank you again for your time, John, and thank you, folks for listening.