Family Law

International Custody Dispute

  • Multiple laws can impact custody disputes across state and national borders
  • Bringing necessary documents for the travel of children across state
    and national borders is critical
  • The state or country which made the first decision about custody of a child is often the place where later custody decisions will be made


The Agony of Complex Custody Disputes

A tale of international intrigue, pitting the courts of one country against those of another. A man strides through the Rio de Janeiro airport, determined to go home with precious cargo which has proved difficult to find and carry home: his eight-year-old son. Such is the story of David Goldman, from Monmouth, New Jersey who has spent several years trying to bring his son, Sean, home.

Sean's mother had taken the child to Brazil, and never returned to the US. In Brazil, the mother divorced David, remarried, and died during childbirth. Now David is at odds with Sean's step-family over who should raise the child, and where.

Laws Affecting Custody Disputes

In the United States over the past several decades, state courts deciding interstate custody disputes use uniform acts that set forth guiding principles and standards. However, courts aren't required to follow any of these uniform acts unless that state's legislature has specifically adopted an act as a state law.

For example, in Illinois, and in many other states, a law has been adopted by the state legislature known as the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). This Act contains several complex key provisions that set guidelines, standards, and factors for the court to follow when making decisions involving a custody dispute involving two states.

A federal law affecting international and interstate custody disputes is the Parental Kidnapping Prevention Act (PKPA). This Act specifically prohibits the kidnapping of children by parents across state and national borders. Some state courts have viewed the PKPA as "trumping" state laws regarding custody disputes. In general, federal courts refuse to get involved in custody matters, reasoning that the state courts are better suited to matters involving families.

Documents are Critical

No one can imagine traveling overseas without a passport. Customs authorities will be especially cautious about children transported across international borders. If you allow your child to be taken out of the US by any person, gather all necessary documents, and keep one or two copies of the documents with you, and one extra copy for the accompanying adult.

If you suspect the person traveling with your child might not return your child to the US, consult with an attorney prior to your child's departure. The attorney will help determine how to best safeguard your child. Alerting the courts, and perhaps even the customs authorities, may prevent years of heartbreak.

First Custody Decision Important

Many laws, including the UCCJEA, attach great weight to the jurisdiction of the court that made the first custody decision regarding a child. Generally, if the court had personal jurisdiction over the child, the same court will be seen as the proper court to make later custody decisions. However, that can change if the parents and child eventually have no connection with that court's location, for example, if they move.

It's especially important to proceed cautiously when more than one country is involved or when a parent has a family or work connection outside the US. Courts consider many different factors when making decisions about the custody of a child, including:

  • the length of time a child and either parent lived in that location;
  • the location of the child's education, medical care and family members; and
  • the location of the child's birth.

In general, courts will consider "the best interests of the child," but the factors involved are varied and complex.

Safeguard Your Child

Always keep copies of all necessary documents (passports, birth certificates, etc.) with you, and one extra copy for any adult accompanying your child out of the US. If you have any suspicion that the person traveling with your child might not return your child to the US, DO NOT let that person out of the US with your child. Finally, if you think your child is missing, or you think someone will kidnap your child, you should alert the courts and the customs authorities right away.

Questions for Your Attorney

  • I think someone is going to kidnap my child, should I alert the courts or customs authorities?
  • How would you prove a person may try to kidnap my child?
  • What is a restraining order? Do I need one?
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