There has been a lot in the news lately detailing some high-profile international custody disputes that have helped shed light on the sometimes complex issues related to international child custody laws. By now, most have heard about the case of former Gossip Girl American actress Kelly Rutherford, who recently lost custody of her two children to her ex-husband, Daniel Giersch, a German businessman residing in Monaco.
Even more high profile is the case of pop star Madonna, who is currently engaged in an across-the-pond custody dispute with her former husband, movie director Guy Ritchie. Their 15-year-old son refuses to return to New York with his Mother, apparently favoring instead a quieter lifestyle in London with his Father.
While these two examples are unique in the level of attention they receive due to the celebrities involved, the simple truth is that these international custody disputes are happening more and more often in our ever- globalized world. Parents must proactively protect their children from a possible relocation with a parent who lives abroad.
Let’s first examine the case of Rutherford and Giersch, married in August 2006: While pregnant with their second child, Rutherford filed for divorce from Giersch in late 2008 in California, and became entangled in an international child custody dispute over their children after Giersch’s U.S. visa was revoked in 2012. As a result of not being able to re-enter the United States, Giersch took up residence both in France and Monaco.
In late 2012, a California court ruled that the 50/50 custody arrangement should remain in tact; because Giersch was unable to travel to the United States, the court also ruled that the children should live in France with their Father, with Rutherford traveling overseas to visit them. Though Rutherford vehemently objected to and appealed the decision of the Trial Court in both California and New York, ultimately, it was ruled that neither court had jurisdiction over the child custody case since the children were no longer residing in the United States.
After declaring bankruptcy and spending over $1.5 million in attorney fees during this agonizing seven-year custody battle, Mrs. Rutherford still does not have her children back home in the United States.
Madonna and Ritchie’s case is slightly different; the main issue in their case appears to be the desire of their 15-year-old child to live a slower lifestyle with his Father in London instead of traveling with his Mother on her world tour with a home base in New York. The issues related to Madonna’s case are not that different from any other child of the age when they feel they should have a say, and even final decision-making authority, over where and with whom they reside. However, that has not stopped Madonna from filing a case in New York in an attempt to have her son ordered back to the United States from London.
So how can you ensure that your children aren’t improperly removed from the United States? Well, for starters we can examine the U.S. and international laws that deal with child custody. In the United States, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) forms the basis for determining jurisdiction as it relates to child custody, and on an international level, we would look to the Hague Convention of 1980.
The UCCJEA has been adopted by 49 U.S. States, the District of Columbia, Guam, and the U.S. Virgin Islands. Only Massachusetts and Puerto Rico have not adopted the Act though they do have similar, but not identical, protections. The UCCJEA vests “exclusive and continuing jurisdiction” for child custody litigation in the courts of the child’s “home state,” which is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months).
If a child has not lived in any state for at least six months, then a court in a state that has (1) “significant connections” with the child and at least one parent and (2) “substantial evidence concerning the child’s care, protection, training, and personal relationships” may assume child-custody jurisdiction. The purpose behind the Act is to have the courts of the different states communicate with each other and determine which state has the most significant connections to the child so that proper determinations for the child can be made. If a parent improperly removes a child from one state, then the Act can help resolve jurisdictional issues to ensure only one court is making determinations for the child.
Internationally, the Hague Convention on the Civil Aspects of International Child Abduction, also known as the Hague Abduction Convention of 1980, provides the method for returning a child abducted by a parent from one member country to another. The Convention was drafted to ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state that is not their country of habitual residence.
The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention, thereby, deterring a parent from crossing international boundaries in search of a more sympathetic court. However, it’s important to note that the Convention applies only to children under the age of 16.
So what can you do to protect your children from removal if the other parent is not a U.S. citizen? Well, as seen from the above examples, the most important aspect of an international custody dispute is determining where jurisdiction for your child lies. If you are an unmarried biological father, as discussed in previous blogs, then it becomes critical to establish legal paternity in the state and county in which you reside before there is any chance that your child will be improperly removed.
If you are married and your spouse is not a U.S. citizen, then upon any discussion of a divorce or separation, you must be proactive in filing for a dissolution of marriage action in your county of residence before the child is removed. The most important way of protecting your children is to ensure they continue to be subject to the jurisdiction of the U.S. courts by filing the appropriate legal action as soon as possible after any issue of international custody rears it head.
Attorney Russell J. Frank is a partner at CPLS. P.A. and focuses his practice areas on family and marital law.