Not Normal Family Law

It’s a terrifying but real possibility—especially in Texas: A parent in a broken relationship kidnaps the couple’s child and flees to a foreign country. It could be months or even years before the child is returned. 

So much depends upon where they flee.

“Whatever [court] order they get in Texas is not going to be recognized in, for example, China,” says Houston family law attorney Laura Dale. “Now, that doesn’t mean that Texas can’t issue an order, and that parent might be violating federal laws with regard to kidnapping, and that warrants or red notices could be issued by Interpol to try and catch that parent if the parent crosses a border. But if the parent stays in China, or stays in India, or stays in Russia, it’s going to be very difficult to get that child back.”

In 2023, according to State Department statistics, California was the state with the most cases of international abductions (139), but Texas came in second at 89. The largest number of Texas abductions involves Mexico. “Part of it is proximity—Mexico’s right next door,” says Houston family law attorney Cindy Diggs. “Part of it is there are a lot of people here who have ties to Mexico.” 

The good news is that Mexico is one of the 103 signatories to the Hague Abduction Convention, which provides a framework for the return of wrongfully removed kids. The treaty includes the option of hearing these cases in federal court—thus avoiding state court backlogs. Parents can count on the backing of the U.S. State Department, too. 

“If something hasn’t happened in six weeks, the State Department will start poking the court,” says Dallas family law attorney Natalie Webb. “It can be faster. You are supposed to get the expedited hearing, so you’re looking at maybe a few months for a return, versus possibly years.”

A nonsignatory country, though, poses a host of challenges. “You’re limited to things like negotiation: ‘What do we have that we can bargain with?’” says Diggs. “Sometimes there’s a property bargaining chip that might help get the kids back. Sometimes the [abductor’s] position here in the U.S. is impacted and they realize they can’t readily get back to the U.S. if they don’t follow the law. You have to try to find those points of leverage.”

Religious and cultural norms may present obstacles as well. “In a lot of those countries there is a sex-based bias for a parent,” says Dale. “For example, under Sharia law, children of a certain age go to their mother, and when they get to an older age they go to their father. Other countries are hugely biased in favor of mothers. In India, it’s very hard for fathers to win what we would call primary custody of a child.”

Both types of cases—those that involve signatories and those that don’t—typically require the assistance of an attorney in the country to which the children have been taken, because that’s where any litigation will take place. Your attorney in the U.S. likely has a counterpart they’ve worked with in that country, or they can find someone via the International Academy of Family Lawyers website. Parents can use that site as well. 

These cases, says Webb, aren’t like normal family law. “We’re not fighting the custody battle. We’re not determining who’s the best parent and who the child should live with. Primarily it’s ‘Which country has jurisdiction to make custody determinations?’”

Adds Diggs: “Generally speaking, if the child has lived in Houston, Texas, and gone to a school that’s zoned to the neighborhood for the last five years, that’s going to be pretty plain. But in some cases it can be more complicated,” she says. “These are modern times and people move around a lot. Sometimes even the issue of what exactly the child’s habitual residence is comes into question.”

If a parent is concerned their former partner may stage an abduction, attorneys say measures are available to discourage or prevent such actions.

“The federal or civil district court can order the parents not to remove the child from the country or even the state,” says Webb. “You can actually ask the court to hold the passports if you think there’s a flight risk.”

“We’re not determining who’s the best parent and who the child should live with. Primarily it’s ‘Which country has jurisdiction to make custody determinations?’” —Natalie Webb, family law attorney