Child Custody When One Parent Lives Overseas

When parents have joint custody or one parent has partial physical custody rights, the courts generally rule that it is in the best interests of the child for both parents to be able to easily and conveniently remain in the child’s life and stay involved in important activities or decisions associated with the child.

In the United States, traveling or moving to another state can cause disputes in child custody matters. Because Pennsylvania is a large state, even moving from our area, Bucks County, to a distant part of the state can create a travel burden that may hamper the ability of both parents to remain significant influences in their children’s lives. This is even more true when one parent lives or wants to move overseas. (For simplicity, this article uses the term “overseas” for all foreign countries, including contiguous nations such as Canada and Mexico.) 

Problems with trans-national child support

If a non-custodial parent who has visitation rights wants to move away, there is generally no legal objection. Presumably, that parent is willing to incur the time and expense associated with visiting his or her child. 

The problems arise when the custodial parent wants to move overseas and take the child with him or her or when a non-custodial parent wants to take the child to a foreign country, even for a short trip. 

If one parent is the sole custodian and the other parent has no visitation rights, the custodial parent is not legally required to gain permission from the courts or the other parent to move. Legally, that other parent has no rights over the child. 

But more commonly, parents share custody to some degree, and when that is the case, moving overseas is a serious matter. If the custodial parent wants to relocate with the child, the non-custodial parent may take legal action to prevent it. 

If the non-custodial parent moves overseas and wants the child to visit, the custodial parent may fear the risk of child abduction and should begin taking steps to prevent such an occurrence. 

Legal remedies

Most Custody Orders will include stipulations regarding travel with a child, whether intra-national or international. If your agreement does not have such wording, contact an attorney immediately to have your Order amended.

If your ex is moving out of the country, have a serious discussion, preferably in the presence of an experienced divorce attorney, about your expectations regarding your child’s travel. Ask yourself some important questions, such as:

• Will you give permission for the child to travel with your spouse for a vacation or short trip?
• Will you require that you accompany your child overseas to visit your ex?
• Will you require that your ex come to the United States to visit?
• Are you concerned about not getting your child back?
• What remedies are you willing to take to prevent such an occurrence?
• Will you take legal action?
• Will you require that your spouse post a Ne Exeat bond, detailing destinations and duration, and posting a sum of money sufficient for you to pursue international legal efforts to get your child back should he or she not be returned to you? 

If your ex is moving or is visiting and you suspect your ex may be planning to take the child out of the country, law enforcement may need to be contacted to take preventive action. Your lawyer can help you with this. 

If your child has already been taken out of the country and you are concerned you may not get the child back, you must act quickly. The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) is an international treaty whose signatory nations have instituted legal processes to promptly return abducted children. However, you only have one year from the date of abduction in order to enact the Hague Convention. 

The parent seeking the return of a child must file a court custody action in the local court in which the Order was filed and ask the court to invoke the Hague Convention. If the country to which the child was taken is a signatory of the Hague Convention, the case will be forwarded to them. The Convention ensures that quick action will be taken to determine within six weeks if:

• the child was a habitual resident of the other country (in this case, the U.S.) immediately prior to the action being filed
• the child was wrongfully removed to or retained in another signatory country (thus violating one parent’s custody rights, which that parent was exercising at the time of the removal)
• the child is young and/or not sufficiently mature to have agreed to the removal or retention or to object to returning to the original country

Other factors are considered, such as the safety of the child if returned, the child’s prevailing culture, and whether the action was initiated within a year of removal. 

Getting help

Clearly, such issues involve complex legal actions, and you need an experienced attorney to support you and be sure that the necessary documents are filed and steps taken in a timely manner. Contact us right away at our Doylestown, Bucks County PA office, (215) 345-5259, for a free consultation to see how we can help you.