Raggio Family Law Articles
International Family Law
The rise of multinational corporations and more frequent international travel for work, education and other reasons has increased the number of families where the parents have different nationalities or at least basic family, social and language ties to different countries. If such a family breaks up, the spouses may each seek to return to where he or she considers home. This may lead to difficulties in enforcing the property, support and child custody provisions of the parties' divorce since the divorcing court in Texas does not have the same actual power over a person who is living outside the country as it does over a person it can order arrested by the local police. The Hague Convention is one answer to the problems aggravated by international mobility.
The United States is one of 70-odd nations which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. The Treaty, which has been law in the United States since 1988, is the international community's effort to solve the difficult problem of a parent or other party wrongfully taking a child from the child's home to another country and refusing to come back. Many times the parent seeking return of his or her child from another country met very high barriers in persuading the authorities in the country where the child was physically present to honor the custody rights determined under another country's laws. This sometimes led to a pattern of disputing parents kidnapping and re-kidnapping their child back to the country where the kidnapping parent was most comfortable and most protected. That was often very bad for the child.
The Treaty is a mechanism to speed return of a child who has been wrongfully removed or wrongfully retained in a country which is different from the child's country of "habitual residence" as determined immediately before the removal. The taking or retention must be in violation of the "rights of custody" -child custody- of the parent residing in the country to which the child's return is sought. The Treaty requires each nation to establish a "Central Authority" to process applications for return of children taken or retained in violation of the Treaty. The Central Authority here is the Office of Children's Issues in the Bureau of Consular Affairs of the Department of State in Washington, D.C. If a Texas child is taken or retrained in a foreign country, the wronged parent should promptly submit a written application to the U.S. Central Authority, which will send the application to the Central Authority in the country where the child is located. Under the Treaty, that country's Central Authority and courts are supposed to send the child back to Texas if there has been a wrongful taking or retention under the Treaty's terms without going through further custody proceedings.
The Hague Convention procedures are a big improvement over being entirely dependent on negotiating the foreign country's maze of custody laws and practices, which often were heavily slanted in favor of the parent who was a citizen or resident of the country where the child was being held. But in our experience the actual return of the child may still require skill, determination, resources, and perhaps luck by the seeking parent. The Treaty is much better than the old Wild West self-help world, and its existence probably deters some would-be abductors who know that unlawfully snatching a child violates the international values embodied in the Treaty. But the parent whose child is taken to or retained in a foreign country should act promptly to get the Treaty mechanism moving and be prepared for a potentially difficult fight.
The firm handles the full range of international family law cases, from enforcing a foreign order here, challenging enforcement of an foreign order with legitimate grounds, or getting the local order to be enforced overseas.
Parental relocation cases within Texas or within the United States is handled similarly, but under a set of laws that are applicable within the United States.
United States Supreme Court Rules in Texas Child Custody case, applying the Hague Convention.
The Supreme Court of the United States recently ruled on a case involving an international child custody dispute. See Abbott v. Abbott. The husband, a British citizen, and wife, an American citizen, had a child in Hawaii and moved to Chile. They separated in Chile, and a Chilean court awarded the mother daily custody of the child and awarded father visitation rights. The father was also granted a ne exeat right—essentially a right for the father or the court to consent before the mother could remove the child from Chile. Later, the mother moved the child from Chile to Texas, without the father or Chilean court's consent. She filed for divorce in Texas, the father filed suit requesting the child be returned to Chile. The Divorce Court in Texas denied father's request and granted the father liberal visitation rights provided he remained in Texas. The father then filed suit in Federal District Court seeking an order under the Hague Convention to return the child to Chile. The Federal District Court denied the request, and the father appealed.
The Supreme Court ruled that a child abducted in violation of a right of custody must be returned to the child's country of habitual residence under the Hague Convention, as implemented by the International Child Abduction Remedies Act (ICARA). The Act authorizes a person seeking a child's return to file a petition in state or federal court and directs that court to decide the case in accordance with the convention. The Court ruled that custody rights, under the Hague Convention, included "rights relating to the care of the person of the child, and, in particular, the right to determine the child's place of residence." Justice Kennedy, writing for the Court, wrote that a ne exeat right under Chilean law meant that neither parent can unilaterally establish the child's "place of residence." The Court therefore concluded that a ne exeat right under the convention was a custody right. Since neither the father nor the Chilean court consented to the child's removal from Chile, the issue must be determined by applying the Hague Convention.
Hence, a limitation on the residence of a child—common in Texas divorce cases—is a custody right.