Dealing with child custody disputes can be difficult for parents who live in the same town. However, when a child custody dispute involves a parent living in a different country, it can be more difficult to resolve disputes, arrange visitation, and enforce existing child custody orders.
Experienced representation with knowledgeable family law attorneys in North Carolina can help resolve any disputes, avoid criminal charges, and provide a more stable environment for your children. If you have any questions about child custody disputes in North Carolina, contact the Caulder & Valentine Law Firm, PLLC for help.
Which Laws Govern Child Custody Disputes?
Child custody does not have to be determined by the courts. The first option, and generally the preferred option for parents, is to determine their own child custody and visitation schedule. This allows parents to come to a mutually agreeable outcome and maintain flexibility on parenting based on changing circumstances. The courts generally need to get involved when the parents cannot agree to a parenting plan or one or both parents continually violate the agreement.
Even the courts generally make court-ordered mediation the first step in resolving a child custody dispute. Mediation is an alternative dispute resolution method that has proven to be a more peaceful and cost-effective way for parents to resolve child custody matters. If a party opts out of mediation or mediation is not successful, the court may determine the outcome of a child custody dispute.
The first issue in a child custody dispute involves determining which laws govern the child custody authority. If a child or both parents are residents of North Carolina, the child custody determination will fall under North Carolina family law. If the parents live in different states, the child custody case may be determined by the Uniform Child Custody and Enforcement Act (UCCJEA).
The UCCJEA helps families and courts determine which state has the authority to decide a child custody case. Factors in determining the right jurisdiction include:
- Where each parent resides
- Where the child attends school or receives medical care
- Where important witnesses who could testify about relevant evidence in the case are located
- Whether or not there is a need for a court to exercise temporary emergency jurisdiction
Parents Residing in Different Countries
Parents who live in different countries or if a divorcing parent plans to move out of the U.S., their first option is to come up with their own parenting plan. Alternatively, the parents can seek private mediation to resolve the dispute and come up with their own workable plan for sharing custody and arranging for visitation while living in different countries.
Child Custody Determined in the U.S.
If the parents were residing in North Carolina or the child was residing in North Carolina, then the state court may make a child custody determination in the event of a dispute. If a parent living in another country tries to take the child out of the country in violation of the child custody order, the parent can invoke the Hague Convention on the Civil Aspects of International Child Abduction.
The Hague Convention establishes procedures to ensure the return of a child to their country of habitual residence. Countries who are parties to the Hague Convention (which includes the United States), can seek the removal of a child wrongly removed where:
- It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
- At the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Countries which have signed onto the convention are supposed to co-operate and work together to secure the prompt return of children, including:
- Discovering the whereabouts of a child who has been wrongfully removed or retained;
- Preventing further harm to the child; and
- Securing the voluntary return of the child or to bring about an amicable resolution of the issues.
Child Custody Determined in Another Country
If the child was residing in another country and custody was established by a court, institution, or other valid body in that country, then that custody attributed to the parents in that country would generally be the basis for the child's custody. If the other country was also party to the Hague Convention, then a parent who takes the child to the U.S., then the local government would generally try and comply with the requirements of the convention.
Child Custody Outside the Hague Convention or Other Agreement
If a parent takes the child to a country that is not party to the Hague Convention, the country ignores their responsibilities under the Hague Convention or other agreement, then international custody can become much more complicated. It may require private or diplomatic negotiations to resolve an international child custody dispute.
Parent Taking the Child Out of the Country Without Approval
If a parent violates an agreement or existing child custody order and takes the child out of the country, they may be committing a crime. In addition to being in contempt of court, a parent who takes a child out-of-state or out of the country may be committing child kidnapping.
The Parental Kidnapping Prevention Act (PKPA), provides for child custody case conflicts between states so that the child's home state governs child custody and visitation. The Hague Abduction Convention provides a civil process for international parental abduction cases to protect children involved in alleged parental kidnapping.
If the parent is threatening to take the child out of the country or you suspect the parent may be taking the child out of state in violation of court orders, talk to your child custody attorney about your options to protect your child. If you think that taking your child out of the country is the only option remaining, talk to your lawyer to make sure you don't do something that would risk your freedom.
Questions About International Child Custody Disputes
Before you give up hope in handling an international custody dispute, talk to an experienced family law attorney who will be able to put the problem into perspective, provide you with all your options, and help you protect your family. If you have any questions about interstate or international child custody disputes, contact the Caulder & Valentine Law Firm, PLLC. Contact us online or by phone at 704-470-2440 today for a consultation.