What Happens When Your Ex Leaves the Country with Your Child?

When a parent who shares child custody moves out of state, it can cause problems with existing custody arrangements. Taking a child to another country is much more complex. There are serious legal problems if one parent takes the child out of the country without notice or permission.

If parents move and need to change their parenting plan, a child custody attorney can explain the process. If you fear the other parent may leave the country with your child, contact a child custody lawyer as soon as possible.

Handling Child Custody Disputes Across Borders

“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.

“These kinds of cases are really the most heart-wrenching,” adds 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. Other times, they’re trying to escape domestic violence or a parent believes the child is at risk.”

In other situations, custody is complicated due to international marriage. “The number of international marriages and families continues to rise, and they are often not limited to two countries of origin,” notes Bonnie Rabin, with Rabin Schumann and Partners 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 relations laws.”

When Your Ex Leaves the Country With Your Child

A parent kidnapping their child by taking them to another country seems villainous, but it’s sometimes an emotional decision that wasn’t premeditated, says family law attorney Raymond Rafool, at Rafool LLC in Miami. “It’s more: They go, and then they decide not to come back.”

“Let’s say somebody met someone abroad, married them, and brought them to Miami,” says Dolly Hernandez, a family law attorney at Miami’s Boyd Richards Parker & Colonnelli. “That person is disconnected from their family back home. That could be the impetus for abducting a child in the event of a divorce, because they want to return to their roots and support system.”

Rafool says he has also seen many cases of a planned child abduction or parental kidnapping. These sometimes involve bringing a child to the U.S., not leaving it. “They want a better life for themselves and their kids, or they’re avoiding the legal system of the other country. People may not want to litigate there, depending on the power of the other party, or relative to gender biases that some countries have.”

Hague Convention Cases

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 on the civil aspects of international child abduction addresses.”

The Hague Convention provides a process to return children under age 16 to their “habitual residence.” There are 103 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 a limited time to 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?”

To determine international child relocation, the 1983 Hague Convention comes into play. “Hague doesn’t make a decision,” Rafool says. “It deals with which country will address a case,” and whether a child has been wrongfully removed. The custody agreement and legal processes depend on the individual countries. These issues are often both complex and expensive.

Legal Fees in International Child Abduction Cases

“The expense could be a couple of hundred thousand dollars,” says Miami family law attorney Lawrence Katz, at The Law Offices of Lawrence S. Katz. “I average probably, without exaggeration, way over 150 hours of work on a Hague case.” Besides legal fees for your divorce lawyer, there may be travel, correspondence with the U.S. State Department, investigators, and trial expenses.

“It’s cost-prohibitive for most people,” says Greenberg. “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 about what procedures or processes are available.”

Using the Uniform Child Custody Jurisdiction and Enforcement Act

“My first choice is always to use the UCCJEA,” Katz says, referencing the Uniform Child Custody Jurisdiction and Enforcement Act. In these situations, Katz represents a party seeking to return a child to the U.S.

“Through something called an ‘expedited enforcement of a foreign child custody order,’ it only takes two days to get the minor child back. Essentially, you say they’re violating a child custody court order. So you need a court order, let’s say from a divorce case or paternity case, that you can enforce.”

The UCCJEA requires its courts to enforce custody rulings from other countries that comply with Florida state law, whether or not they’re Hague Convention members.

One factor for not enforcing is if the party was not afforded due process. Another issue is if custody laws in the other country violate our concept of human rights. In Florida, Katz says, the failure of a country’s courts to consider the child’s best interest qualifies as a violation of human rights, and a family court could decline to enforce a custody order from that country.

What Happens if the Child and Parent Move Away

And if the child and parent move away? That’s worse, of course. “Everyone has this misconception that there’s some sort of passport control,” says Hernandez. “Once you leave this country, there isn’t some magic GPS on your child’s passport.”

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.”

Some foreign governments have little control over parts of the country, and even functioning governments aren’t always helpful. “There are a lot of countries that are corrupt as far as the judicial system,” Katz says. “If the family is wealthy, they could probably pay people off.”

Hernandez says wealthy families can also take a child from country to country, trying to evade jurisdiction. “They have the capacity to evade the other parent for a significant amount of time,” she says. “The best thing to do is to try to be alert to when it might happen and take every measure possible to prevent it.”

For example: “If the country that the other parent wants to travel to with the children is a non-signatory to the Hague Convention,” says Hernandez, “[you] could make an objection [in court] to [any] travel outside of the U.S.”

Taking Preventative Measures Against Parent Kidnapping

Katz notes that such requests for a court order come after filing for divorce. If there is evidence that your ex-spouse might abduct your child, the concerned parent can seek preventive measures. Parents can get a custody order barring the other one from getting on a flight with the child or directing that parent to surrender the child’s passport.

Some courts, Hernandez says, will require the other parent to post a bond or use other preventive measures. “In the event the other parent needs to go and retrieve [a child] and file a Hague action,” she explains, “they can use that money to pay for family law attorney’s fees.”

Steps To Protect Your Parental Rights

Prevention can begin during a divorce settlement, says Rafool.

In Miami, he notes, many people have more than one passport. “They may have multiple homes in different places, and they could have family in different places. That’s why, in a lot of the settlement agreements, we put in terms that address the Hague Convention.

“You’re telling someone, ‘You’re not gonna do this, this, this, and this.’ The other person has it in their head, ‘OK, this is to stop me from doing this,’ and you hope that it’s created somewhat of a deterrent.”

Keep Two Sets of These Records (One Digitally) If You Fear an Abduction

• Detailed physical description of the child
• Recent photos of the child, the other parent, their relatives, and the new spouse
• Fingerprint cards
• Documents for the child and other parent: passport and driver’s license numbers, place of issue
• Details on other parent’s credit cards, bank accounts, Social Security, alien registration, and IRA and retirement accounts
• Contact info for other parent’s family, friends and associates
• Hospital, doctor and dentist records, psychological reports, reports from police or government agencies

When To Consider Hiring a Lawyer

“Sometimes you have to hire an attorney or family law firm, or at least get legal advice, in the other jurisdiction,” says Rabin. “Technically speaking [in Hague cases], there’s not supposed to be any underlying custody issue, but of course there always is. Every country has its cultural norms.”

For legal options about a parent going out of the country with your child, talk to a child custody lawyer.