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What happens when your ex-spouse moves abroad with your kids?

If, following a divorce, your spouse decides to move to another country, they may encounter legal hurdles if they try to take your child with them. International child custody cases can arise in a variety of scenarios. They commonly occur when:

  • A couple divorces/separates, and one parent wants to move to another country with the child;
  • A couple has divorced/separated, and one parent--against the will of the other parent--has already moved with the child to another country or
  • One parent distrusts the custody-related court proceedings in a particular country.

There are a number of child abduction laws in place to protect children from unlawful removal from their home country. Today we will examine the Hague Convention on International Child Abduction. More than 80 countries are members of this treaty--including the United States. If your child is moved to any member country without your consent, they may be protected under this convention.

Under the convention, any child under 16 years of age who has been "wrongfully removed or retained" from their country of "habitual residence" will be returned to that country. The treaty defines "wrongful removal" as moving a child when this is in breach of custody rights. "Custody rights" can refer to court-determined custody as well as a given country's law surrounding child custody-- if a court custody ruling has not been made.

There are some exceptions to this treaty. For example, if more than a year has passed between the child's move and the filing of a petition under this convention, this delay can open the case up for review. If the defendant can demonstrate that the child has become settled in the new country in the intervening period of time, then return to the child's home country may not be enforced. Additionally, if the defendant can provide evidence of serious risk of harm (physical or emotional) the child would face by returning to their home country, the child may be granted permission to stay in the new country.

Going through an international child custody dispute can be a complex and nerve-wracking process. It is important to have an attorney experienced in this field to help guide you through the process.

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