How to Handle Custody That Cross Borders
International family law cases are on the rise; here's how they're resolved
on March 19, 2020
Updated on April 4, 2022
Trade isn’t the only thing on the increase in a globalized world with international borders. So are marriages between people from different countries—and with those marriages, inevitably, come international divorces and custody battles. These can be especially problematic and heartbreaking. “When somebody wants to move with a child far away from the other parent, somebody’s sort of winning and the other person is really losing,” says Patricia Fersch, a family law attorney at Fersch LLC in lower Manhattan.
“The number of international marriages and families continue to rise, and they are often not limited to two countries of origin,” notes Bonnie Rabin, with Cohen Rabin Stine Schumann in Midtown. “The couple may be from different countries, have a child in a third, and live in a fourth. Should they decide to divorce, they can easily be dealing with the differing interests of four or more cross-border custody jurisdictions with varying, if not conflicting, family and domestic-relation laws.”
In New York State, for instance, it’s difficult for a divorced parent to obtain permission from court or a judge to move with a child from New York City to a suburb—let alone to a foreign country. With all the challenges involving international child custody, many parents are just fleeing with the kids and no return of the child.
“These kinds of cases are really the most heart-wrenching,” says Margery Greenberg, with Segal & Greenberg in Tribeca. “Sometimes it’s because of a fight. Sometimes one parent decides they have a better opportunity in another country. Sometimes they’re trying to escape domestic violence. Sometimes a parent has a belief the child is at risk.”
When an ex-spouse has broken parental responsibilities and fled the country with a child, Greenberg says, “the question becomes: How do you get the child back? That’s what the Hague Convention (Hague Convention on the civil aspects of international child abduction) addresses.”
This treaty provides a process to return children under age 16 to their “habitual residence” countries. There are 101 participating nations.
“You petition through the U.S. State Department, which in turn contacts the central authority of the country where you believe the child to be,” says Fersch. Once that country finds the child, “they have 72 days in which to have hearings and then render a decision.”
While Hague appears to be complicated, ultimately it addresses only one thing: venue. “Meaning the proper jurisdiction to address the issues regarding the well being of a child,” Greenberg says. “Which country is going to deal with it?”
In less than a decade, notes Rabin, the U.S. Supreme Court has already heard its first three Hague cases, with a fourth one slated.
But Greenberg offers a warning: “It’s cost-prohibitive for most people. You often need to take the deposition of family members in the country of origin. There are often experts from the country of origin who could talk to what procedures or processes are available.”
Adds Rabin, “Sometimes you have to hire an attorney or family law firm, or at least get legal advice, in the other jurisdiction. Technically speaking [in Hague cases], there’s not supposed to be any underlying custody issue, but of course there always is. Every country has their cultural norms.” Some favor mothers, some fathers; some favor the wealthier parent, and some don’t recognize same-sex marriage or adoptions.
The process can be very time-consuming. For some, it can come down to a choice of keeping their job or—possibly—getting their child back. Even if someone invests all the time and money necessary, it’s still a dicey process. Some countries that have signed, says Rabin, merely “give lip service to conformance with the Hague.”
Fersch adds, “People think, well, we’re the U.S., and so, you took my child, and the U.S. is essentially going to send stormtroopers into a sovereign country and bring the child back. And that is not happening.”
So when you are able to bring about a reunification, says Rabin, it’s “incredibly rewarding.”
Sometimes, an agreement can be reached even after a Hague claim has been filed or a custody order issued. “I had a case from Germany where the dad decided [it’s OK], as long as the child comes back for summer vacations, or I get to come back to New York for winter vacations,” Greenberg says. “And the mother said, if you come to New York for winter vacations, we’ll agree to set you up in a hotel. And so it got worked out. So it can get worked out.