Case shows rigors of international child custody disputes

On Behalf of | Dec 12, 2012 | Child Custody

International child custody cases have likely plagued some Minnesota parents at times. They are some of the most arduous cases to successfully navigate because they involve separate sets of laws along with different entities that enforce those laws. In many cases, when a child moves overseas, a United States-based parent’s hands are tied.

Minneapolis residence may have taken note of a child custody case that fits these criteria after it reached the United States Supreme Court recently. The case centers on an Army sergeant whose former wife took their daughter to her native country. She was granted permission to do this by a federal judge and did so the same day, before the man could exhaust all appeals.

One U.S. appeals court said that because the daughter was taken to Scotland in compliance with the law, any further child custody matters must be determined over there. But in the course of the Supreme Court hearing on the matter, Chief Justice John Roberts suggested otherwise, saying such a position encourages parents to jet out of the country with a child and does not allow the other parent to file an appeal.

At the heart of the case is interpretation of the Hague Convention on the Civil Aspect of International Child Abduction. This international pact, to which the U.S. is a signatory, states that when a child is whisked away to another country, the other parent can file a petition to request the child’s return. If granted, the child custody dispute must be heard in the country of the child’s “habitual residence.”

The definition of habitual residency is key. The couple got married in Scotland in 2006 and the child was born a year later. Due to Army transfers, the family first lived in Germany. When the father deployed to Afghanistan, mother and child lived in Scotland. In 2009, the family moved to Alabama. The parents filed for divorce in 2010 and when the woman’s visa expired, she was deported to Scotland. Later, she won court approval to move her daughter to Scotland and the father’s requests for a stay pending appeal were rejected.

As of now, the child custody issue remains in limbo and it’s unclear when a decision might come. And if the decision is only that courts should be more liberal in granting stays during appeals, it might not affect this case.

Source: The Washington Post, “Justices consider court role in international custody cases,” Robert Barnes, Dec. 5, 2012