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International Divorce and Child Custody Issues: Custody Arrangements, Abduction and the Hague Convention

Another confusing and scary issue regarding international divorces and child custody suits are international possession and parenting plans, and the risk of international abduction. Many of us remember when you could walk across the border to Mexico or into Canada for groceries without a second thought or a passport. The world has changed, and although crossing international boarders is still rarely a concern to the person who is crossing, there are real concerns for a parent whose minor child is crossing an international border without them. The risks increase when your minor child is not only crossing a border into another country without you, but more importantly, they are crossing with someone whom you may not trust to bring your child back. 

For those whose relationship with their child's other parent is prone to conflict, suddenly the fears and questions arise: Should I let them go? Do I have to? Who holds the passport for our child? What if the other parent refuses to bring our child back? How do I ensure that my child is brought back to me? Are there any authorities who will aid me in recovering my child?

Others who may have more cooperative relationships with their child's other parent/conservator still may have concerns. Who will pay for the international travel? How long will my child be gone? How do I communicate with my child while they are out of the country? How will I know where they are? I want my child to see their other parent, but how can we possibly make an international visitation schedule that works?

International Visitation and Parenting Plans

The key to international parenting plans starts with proximity and trust. If your child is old enough for a full visitation schedule, such as a child over the age of three in Texas having a Standard Possession Schedule, then the first question to be asked is with regard to trust. A general list of issues to consider when constructing an international visitation and parenting plan include the following:

  • The parents/conservators of the child share a trust and ability to coparent and communicate.
  • Neither parent has withheld the child, refused to return the child, or threatened to flee with the child.
  • Neither parent legitimately believes that the other parent/conservator will not return the child.
  • The child's citizenship(s) and number of passports
  • Any connections or close ties either parent or conservator has to another country that make it possible or likely for the parent not to return the child.
  • What country the other parent is taking the child to.
  • The safety and political climate of the country the child will be traveling to.
  • If the country is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction and what means are available to have authorities in that country return the child.
  • Whether the child's primary country of residence and the country the child would be traveling to recognize the authority and court orders of the other country.

When it works

If there is not a concern about the safety of the country where the child is traveling or that the other parent will return the child, the best way to handle the possession schedule is to work out opportunities for the non-possessory parent to have longer periods of possession when the child is not in school. In Texas, this would be the equivalent of the possession schedule for parents who live more than 100 miles apart. Very generally, the non-possessory parent would do the traveling and pay for airfare and expenses, but they may also get some travel expense credit to offset some of their child support obligation. Due to the distance and cost of travel, the other parent may get to choose one weekend per month to exercise possession rather than have the child every first, third and fifth weekend of the month. It is likely that may have possession of the child every spring break, and get more time with the child in the summer.

When it sorta works

Some cases are less clear cut than this. Perhaps a parent has made threats of taking a child to another country and then not returning them, or the country where the parent plans to go is dangerous and does not provide legitimate means for recovery and return of the child. In these cases, the circumstances must be weighed against the other parent's right to possession of the child and the fact that they reside in another country.

When the concern is less about the safety of the child and the country they are traveling to, the next course of action may be the same possession schedule above, but the schedule may include the requirement of a parent to provide notice of intent to travel internationally with the child and provide the other parent with a list of dates and locations where the child will be in the other country. Another option or additional requirement may be to require the parent to post a cash or security bond in a reasonably high amount payable to the other parent, or to be deposited with the clerk of the court. This deposit should be high enough to be a deterrent to international abduction and can assist the other parent in the recovery of the child if the parent does not comply with the Court's orders concerning possession and access.

...and when it doesn't

In cases when a parent has regularly not complied with the court orders, threatened or refused to return the child, or is taking the child to a particularly dangerous country that does not have available means to return to the child, or a history of doing so, then there has to be more to protect the child. This can include a limited possession schedule, a geographic restriction, international travel notice requirements, a bond, restriction of possession of the child's passport, international travel prohibition prohibiting the high-risk parent or anyone acting on their behalf from removing the child from the state or country, and requiring the high-risk parent to provide written notice to state and national travel agencies of the travel restrictions.

In these cases, the parent may already have supervised visitation within the child's resident state, or they may be allowed an unsupervised visitation schedule but not be permitted to remove the child from the state or country.

Hague Convention on the Civil Aspects of International Child Abduction

If your child is wrongfully removed from the country or not returned, the first step is to check and see if the country in which you believe the child is being kept is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction. This convention was established to prevent international abduction of children and to facilitate cooperation among countries for the return of children who have been wrongfully removed. An attorney can help you navigate the required steps to request assistance in the return of your child through the procedures laid out by this provision of the Hague Convention.

Contact an Attorney

If you are facing a divorce or modification which involves international custody provisions, contact an experienced family law attorney to assist you in drafting an appropriate parenting plan that is workable, fair, and safe for you, your child and the child's other parent. If your child has been or you believe your child will be abducted to another country, contact an attorney immediately to begin the necessary steps to protect your child. The Springer Law Firm has experience in international custody and support plans. Contact us to arrange a consultation to discuss your concerns with one of our attorneys.

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Katy, TX 77450

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