INTERNATIONAL CHILD CUSTODY cases are particularly complex. The first question a California court must decide is whether or not it has jurisdiction over an international custody dispute. The California court must look at both the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) as well as the applicable federal law, namely the International Child Abduction Prevention Act (ICARA), which is the U.S.’s enactment of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). Whether or not the foreign country has signed The Hague Convention will determine the course of action by the California court.
CASES WHERE THE HAGUE CONVENTION DOES NOT APPLY:
If the foreign country has not signed The Hague Convention, the California court looks to the UCCJEA to determine if it has subject matter jurisdiction over the international custody dispute. The physical location of the child is not a factor in determining jurisdiction in this situation. Instead, the California court must first determine whether or not the foreign country in question has custody laws that “are in substantial conformity” with the UCCJEA. If the court determines that the foreign laws are not in substantial conformity with the UCCJEA, then the Californiacourt may decide not to apply the foreign country’s custody laws if such laws violate fundamental principals of human rights.
On the other hand, if the California court finds both that: (1) the foreign country’s laws do substantially conform to the UCCJEA; and (2) child custody jurisdiction properly lies in the foreign country, the California court must apply the foreign country’s laws in its examination of the custody dispute.
Once the California court makes this threshold decision of which jurisdiction’s law applies, the court can then proceed to make a child custody determination.
CASES WHERE THE HAGUE CONVENTION APPLIES:
If the foreign country involved has signed The Hague Convention, then the federal law enacting the Convention, the International Child Abduction Act (ICARA), applies when the child is under 16 years of age and is removed without the other parent’s consent from the child’s “habitual residence”. The purpose of the ICARA is to ensure that the custody dispute is heard in the country where the child habitually resided prior to his/her removal.
Thus, the California court must first establish where the child’s “habitual residence” is located – in California or the foreign country. If the court decides that California is the place of habitual residence, it can then proceed to hear the merits of the custody dispute. If the court decides that California is not the child’s place of habitual habitation, then it must relinquish jurisdiction to the foreign country.
Whether or not the Hague Convention applies, the enforcement of any California court decision can very difficult when the child is physically in another country.
CONTACT OUR OFFICE TO SCHEDULE AN APPOINTMENT TO DISCUSS YOUR CASE.