Child Custody Orders Overseas

Los Angeles is famous for being one big melting pot, and one result of this is we have lots of people from foreign nations who live and work here. Some of these people have Green Cards. Some of them are in the United States on a visa, while others have dual citizenship or are naturalized U.S. citizens.

Because LA is home to so many immigrants, it creates a unique issue for divorcing and divorced parents. Sometimes, the U.S. citizen spouse is concerned that their former husband or wife will take the children and flee to their home country, or that they’ll take a family vacation to the parent’s native country and they’ll refuse to return the children to the U.S. This was portrayed in the Sally Field movie, Not Without My Daughter, and the struggles depicted by Field have been burned in the memories of divorcing parents all over the world.

What if Your Spouse is an Immigrant?

What about you? Is your husband or wife from a foreign nation? If so, are you afraid that he or she will take your kids to their home country? What if you have a custody order in Los Angeles, will your American custody order work if your spouse flees to their native country with your children? Or, is there NOTHING you can do?

Don’t panic, but don’t sit around and wait for the worst to happen either. There are laws that protect you, but you need to act fast. There is an international treaty called the Hague Convention, which deals with international child abductions – this is going to be your primary tool if your fears are realized.

Under the Hague Convention, if a parent abducts a child and takes the child to a foreign country, the parent will be ordered to immediately return the child to the U.S. The Convention applies to most of Europe and a number of westernized countries. It also applies to parts of Africa and South America, and the Middle East – the pro-Western regions specifically.

The treaty does not say which parent gets custody of a child who is internationally abducted. Instead, it addresses sending children back to the countries where they came from. If your spouse or former spouse abducts your children without your consent and takes them overseas, your children may be returned to the U.S. if:

  • They are under the age of 16 and were abducted to a country that is a member of the Hague Convention.
  • Someone removed them from the U.S. and kept them in the foreign country that is a member of the Convention.
  • The foreign abduction violated your legal rights to custody, visitation, or legal custody.
  • Your children are presently in a country that is one of the members of the Convention.

When Do I Make a Claim Under the Convention?

If your spouse (or former spouse) does abduct your children and take them to a foreign country, you must take immediate action. Under the Convention, parents usually have one year of the removal to make a claim and have a judge look at their case. If a parent misses this small window, the judge will likely consider how well the children are adjusting to their new life overseas. In these situations, the judge could make a decision much like he or she would in a traditional child custody hearing.

Do you think you may have a Hague case? If so, you’ll need a child custody attorney to help you file a Hague Convention Application with the local Hague Central Authority. Here in the U.S., our central authority for children who are internationally abducted is the U.S. State Department Office of Children’s Issues.

How Can I Find Out if My Spouse Obtained Passports?

Fortunately, there are ways for you to find out if your spouse has obtained passports for your children without your knowledge. The State Department has established what’s called the Children’s Passport Issuance Alert Program (CPIAP), which is not a tracking system, but it is a lookout system. This program can provide information to a court or parent in case a passport application has been submitted on behalf of a child.

Under the CPIAP program, let’s say there is a court order that prohibits a child from travelling outside the U.S., that grants joint custody, or grants custody to the parent who is not applying for a passport. In this case, the State Department will deny a passport request that is submitted for the children.

If you are worried about your spouse taking your children out of the country without your permission or knowledge, you can send a written request to the State Department asking the Department to notify you or the court if your spouse submits an application for a passport on behalf of your children. This system would remain in effect until your child turns 18, or until you send a written request asking it to be ended.

If you are interested in registering your children in the system, file a written request with the State Department. To download the applicable form, click here.

What About Dual Citizenship?

If your child has dual citizenship, this is probably because his or her other parent is a foreign national. Meaning, they are not a U.S. citizen. If your child cannot obtain a U.S. passport because of the reasons we explained, it doesn’t mean he or she can’t travel on the other nation’s passport. If your child has dual citizenship, our advice is to contact the other country’s consulate or embassy and ask about children with dual citizenship and how their passports can be denied under that country’s rules.

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