This 2016 article, based in part on my input, remains fully applicable
today. I consult on such matters with clients around the world, always working
with local counsel as appropriate.
Jeremy Morley, www.international-divorce.com
The Terrifying Reality of International Custody Disputes
Chen Ximeng 3/27/16
It's been 15 years, but Susan Blumberg-Kason
still remembers vividly the sleepless nights after her now-ex-husband, Cai Jun,
first threatened to take their infant son Jack back to China.
an American, first met Cai in Hong Kong while both were attending graduate
school. After a whirlwind courtship, the two married in Cai's hometown in Hubei
Province, and several years later moved to California to settle down. By that
time, though, the cracks in their marriage had already started to show; in
addition to cultural clashes, Cai revealed himself to be abusive.
after giving birth to their first and only child, he began making noises about
sending him to live with his parents, Blumberg-Kason became terrified that she
might lose Jack forever. And so she began divorce proceedings, ultimately
escaping the marriage and winning full custody of Jack.
writer, Blumberg-Kason chronicles the ordeal in her 2014 memoir Good Chinese
Wife: A Love Affair with China Gone Wrong, and says that, since then, among the
most passionate responses she's received are from other people dealing with
international custody disputes.
custody disputes are never pretty, international couples in which one member is
Chinese present an especially tricky case - because China hasn't signed the
Hague Convention on the Civil Aspects of International Child Abduction, a
multilateral treaty that allows for the expeditious recovery of abducted
children, there remains little legal recourse when a child is carried off.
not as rare a situation as you might think. According to 2014 statistics
reported by iRead Weekly in August 2015, China is now home to 47,000
cross-national marriages, which in turn are showing an increasing rate of
China hasn't signed the Hague Convention, which protects parents from losing
their children to international abduction, foreign parents have no rights to
ask for the return of their children if their spouse takes the child to
China," Blumberg-Kason said.
No protection under the Hague Convention
the Hague Convention, which was signed in 1980 and put into force in 1983,
parental kidnapping was a poorly defined concept, with authorities referring to
it variously as "legal kidnapping" and "custodial
interference." In addition to providing a name for this phenomenon -
international child abduction - the treaty drew up guidelines for what
constituted violations of custodial rights and provided mechanisms by which
children could be returned home, which is defined as the country of
"habitual residence." Abduction, meanwhile, is defined as a parent
without sole custody taking their child to another country and refusing to
return the child or let the other parent visit. To date, 94 countries and
regions have joined the convention.
rub, of course, is that both countries involved must be signatories of the
convention in order for it to work. The convention depends on the establishment
of central authorities in each signatory country that communicate with one
another and with domestic courts to facilitate the return of abducted children
to their home countries. Without that, victims of abductions can find
themselves dead in the water.
According to Jeremy D. Morley, a New York-based family lawyer and
author of The Hague Abduction Convention:
Practical Issues and Procedures for the Family Lawyer, this is one reason
which makes China an inviting destination for international childhood
"There is often a legal vacuum that encourages one parent to
take children away from the other, and to deprive the children of access to the
other parent," Morley says. "It not only hurts foreign parents [if
the Chinese partner takes the child to China], it also hurts Chinese parents
living in China because if the other parent takes their child to a foreign
country from China, the courts in that foreign country are unable to order the
child's return to China under the terms of the convention."
only recourse in situations like this is domestic courts. Beijing-based family
lawyer Li Peixuan, who's been dealing with international divorce cases, many
involving custody, for 15 years, recalls one case involving a Chinese woman,
Zhang Ya, her British ex-husband Matthew and their son, Rick (all pseudonyms).
divorcing in 2009, Zhang moved to Malaysia for two years to work while Matthew
remained in Beijing, but the two established an agreement by which Rick would
stay with his mother for the first year and then return to Beijing to live with
Matthew for the second. When the time came, however, Zhang refused to let Rick
return, and Matthew decided to file a lawsuit against her for international
China is not a signatory of the Hague Convention, Matthew would have faced a
lot of challenges in terms of procedures and execution," said Li, who
represented Zhang. "This is the kind of case that could have dragged on
for years, even until Rick was grown up."
the end, Matthew and Zhang were able to avoid litigation by making a new
compromise, under which Rick would remain in Malaysia, but Matthew could visit
and bring him back for holidays.
to Li, the other major complication is the fact that custody rights are defined
differently in China than they are in other countries.
China, joint custody effectively doesn't exist; instead one parent is awarded
sole custody, which not only means that the child lives with them, but that
they have the right to make all important decisions related to the child's
well-being. By contrast, in most Western countries, even if one parent is
awarded sole custody, he or she must still consult the other parent when it
comes to major decisions related to the child.
Different approaches to negotiation
differences may not only have a bearing on the success or failure of a marriage
- they can affect the outcome of custody cases as well.
believes that this was key in the escalating tensions between Zhang and Matthew.
While Zhang wanted to negotiate the problem, Matthew immediately opted for
legal action, hiring three lawyers and informing the British Embassy of the
kind of cultural difference between Chinese and Britons was one of the major reasons
for their dispute," Li said. "In China, there's much more of a
tradition of solving things through negotiation before resorting to legal
action, while Britons hold firmly to the importance of contracts."
agrees that many disputes in international divorces arise from cultural
was a source of conflict in her own marriage - Cai wanted to send their son
back to his hometown to live with his parents, an idea that Blumberg-Kason
isn't an American custom," she said. "Americans live with their
children and don't send their children away to live with their grandparents. I
felt if that happened to me, I would miss my son very much."
Where to go from here?
to Yang Xiaolin, a lawyer who specializes in family law and a partner at
Beijing Yuecheng Law Firm, one of the biggest reasons why China hasn't signed
the Hague Convention is that the legal terms required to enforce it are not
sufficiently defined in Chinese law.
our judicial system, there are no clear laws governing joint custody,"
Yang says. "We focus more on custody by one parent. So there is a conflict
between joint and sole custody. If we sign the convention, it will conflict
with the current laws. So first we need to build a system and regulations for
said that he hopes China will eventually sign the convention, but added that
officials from the Ministry of Foreign Affairs recently said that such a move
is not imminent.
where does that leave mixed Chinese-foreign ex-couples? Li suggests that both
sides should start out by educating themselves on the laws of both their
countries. Which laws apply, Li says, depends on the child's nationality.
your child has Chinese nationality, you should go to Chinese courts for a lawsuit,
but if he or she is of foreign nationality, you should go to the court of that
country, the laws of which may be quite different," she said.
added that foreigners shouldn't be afraid of any bias against them in Chinese
courts; the courts' only "bias" is toward protecting the custodial
rights of women. With very young children, for example, mothers almost always
should also, she said, be prepared for the difficulties involved with enforcing
example is the widely publicized divorce case of American Kim Lee from her
ex-husband Li Yang, the founder of famed English-teaching method "Crazy
English." After a very public divorce following allegations of physical
abuse, Lee was awarded full custody of the couple's three daughters; Li,
meanwhile was ordered to pay 100,000 yuan ($15,350) of alimony for each child
every year until they turn 18. But after giving them an initial 150,000 yuan in
2013, Li stopped paying, according to a Beijing News report in 2014.
Blumberg-Kason says that a law professor in California once told her that even
countries that have signed the Hague Convention often don't comply with it, and
cases can take 10-15 years to resolve, by which time the children are already
teenagers. "Mutual respect of differences and negotiation are the best
said she knows other divorced international couples in which one spouse lives
in China. The kids live overseas with one parent during the school year and go
to China to see the other parent in the summers.
works because the former spouses respect one another, maintain a good
relationship, and put their children first," Blumberg-Kason said. "If
people can get to that point, it can work out very well."