Posts
by Jeremy D. Morley
If a parent wants to take
a child who is living in the United States to live in another country, is it
necessary for the parent to apply to court for permission to relocate?
A. Consent
If the relocating parent has received the
other parent's consent to relocate, then there will generally be no problem,
provided:
(a) The
consent is to relocation rather than to take the child for a mere visit; and
(b) The
consent can be proven.
Obviously, it is infinitely better for the relocation consent to be in writing, since proving oral permission may be difficult. It is also preferable for the writing to be drafted or at least reviewed by counsel.
Another problem with
consent is that it might be withdrawn. If it is withdrawn before the child is
relocated, it will have little or no effect.
B. No Consent
If the other parent has not consented, it
is extremely dangerous, for a variety of reasons, for a parent to take a child
to live in another country unless:
(a) The
other parent has no rights of either custody or of visitation, either because
of a court order to that effect or because the parties are unmarried and, under
the local state law, the other parent is a father as to whom the requisite
steps for paternity have not been taken; or
(b) The
relocation is expressly authorized by a valid court order.
The reasons for concern include:
1.
It may be criminal under federal law. The
International Parental Kidnapping Act makes it an offense to remove or attempt
to remove a child who has been in the United States from the United States with
the intent to obstruct the lawful exercise of parental rights. It includes the
retention out of the United States of a child who has been in the United
States.
The term “parental rights” means
the right to physical custody of the child, whether joint or sole, and includes
visiting rights, whether arising by operation of law, court order, or legally
binding agreement of the parties. This means that even if one parent has sole
custody of a child while the other parent has nothing but limited rights of
access, it would normally be felonious for the custodial parent to relocate the
child to another country without either the other parent's consent or a court
order authorizing the relocation.
The crime is a felony punishable by up to
three years in jail or a fine. It is an affirmative defense that the defendant
acted within the provisions of a valid court order granting the defendant legal
custody or visitation rights and that order was obtained pursuant to the
Uniform Child Custody Jurisdiction and Enforcement Act the issuance of a
custody order prior to a parent taking a child out of the United States.
Anyone who “aids and
abets” the abduction might also be charged with the crime.
2.
It may be a crime under state law. Every
state has a provision in its criminal law that bars parental kidnapping in one
form or another. Thus, New York's Penal Law provides that a parent is guilty of
custodial interference in the second degree when, intending to hold such child
permanently or for a protracted period, and knowing that he has no legal right
to do so, he takes or entices such child from his lawful custodian. It becomes first-degree
custodial interference if done with the intent to permanently remove the victim
from the State of New York.
3.
There might be extradition from the
country to which the parent has gone.
4.
Once an arrest warrant has been issued, an
Interpol Red Notice may be issued requesting the provisional arrest of the
parent with a view to extradition based on an arrest warrant or court decision.
5.
Many states
require a parent who intends to relocate a child to give prior notice --ranging
in most but not all cases from 30 to 90 days of the intended move if the
non-residential parent does not consent. Once a parent objects, a hearing on
the issue of relocation must be held before the relocation may occur. Violation
of the statute will lead to sanctions imposed by the courts of the state from
which the child is taken.
6.
The
child's home state will continue to have exclusive custody jurisdiction
for at least the six months subsequent to the relocation. If a custody case is
commenced in the home state during that period, the courts of that state will
normally have continuing exclusive jurisdiction thereafter. This means that the
left-behind parent can ask for and will presumably obtain an emergency order
directing the taking parent to return the child to the state, and perhaps to
the custody of the other parent, forthwith. If such an order is violated the
taking parent could be held in contempt of court.
7.
If the
other country is a treaty partner with the United States under the Hague
Convention on the Civil Aspects of International Child Abduction, the
left-behind parent can petition for the child's return in accordance with the
provisions of that treaty. That will usually lead to an expedited hearing in
the appropriate court in the country to which the child has been taken,
followed by an order directing the child's immediate return to the United
States, unless one of the extremely narrow and limited defenses can be proven.
Once the child is returned to the United States, the U.S. court is likely to
bar any further international travel by the parent who has been found to be an
international child abductor.
8.
In some
countries, the left-behind parent can petition the foreign courts to enforce
a U.S. custody order, either through a registration system similar to the
UCCJEA or through a general child custody case.
9.
There are
other actions that a left-behind parent can take, such as bringing a
civil lawsuit for intentional infliction of emotional distress.
