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International Child Custody: how the Hague Convention protects your custody rights

What if after your divorce, or during a separation, your ex threatens to move the children to another country? You worry if you will ever see your children again, and wonder what rights you have to keep your children closer to you. Even if your ex has physical custody, if you have joint legal custody, both parents need to agree on whether to move the child to another country for one parent to be able to legally take the child. Legal custody grants you the right to decide the child's place of residence. If there is a dispute about moving the child to another country, a court can hear and settle the dispute.

Without permission from the court or permission from any parent who has legal custody, fleeing with your child to another country is considered child abduction under legal terms. The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that helps return the child to the country he or she habitually lived in if one parent takes the child out of the country in violation of their custody rights, or without the consent of a custodial parent. It's called the Hague Convention for short. Custody rights include both physical custody and rights to visitation or parenting time with the child. Parental child abduction is a crime under state and federal laws.

Which countries are members of the Hague Convention?

Countries across the world agreed to the Hague Convention to protect children internationally from being harmed by a wrongful move to a different country, and to secure parental rights around custody. There are 81 members of the treaty - 80 countries and one regional economic integration organization. Countries that participate in the Hague Convention include:

  • Almost all European countries, including some of the former Soviet and Yugoslav republics
  • A few countries in Africa
  • A few countries in South America
  • The pro-western margins of the Middle East

A full list of countries that are members of the treaty can be found here.

How does the Hague Convention work?

The convention provides a way and specific procedure to arrange for the immediate return of the children who are taken from their country of "habitual residence" if they were taken in violation of custody rights. This allows children to be returned without having to go to court in that country to obtain custody rights within that country to bring your child back home. However, if that country did not sign the Hague Convention, matters may be more complicated. In both cases, a family law attorney that is skilled in the area of international child custody can help you exercise your custody rights and bring your child back home.

Who does the Hague Convention apply to?

The Hague Convention applies to children under the age of 16 who were wrongfully removed from their country of residence. A petition is typically filed to return them to their home country. However, if they were abducted more than a year before the petition was filed, the parent who moved the child to the new country can try to prove that the child or children should not be returned home because they are now settled in their new environment. A parent can also keep the child in the new country if they can prove that bringing them home presents a "grave risk" that would result in physical or psychological harm to the child.

Because one country may not recognize child custody arrangements made in another country, the Hague Convention provides a solution to a potentially complex problem. A family law attorney with experience in this area is crucial in defending your parental rights in international child custody disputes. An attorney can also help make international custody arrangements possible, so that both parents are able to be involved in the child's life, even across international borders.

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Jamie Graham & Associates, PLLC
310 South St. Mary's Street Suite 2500
San Antonio, TX 78205

Phone: 210-764-3468
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