Understanding International Child Custody
The world is becoming more global and families, now more than ever, are less tied down to one city, one state, or even one country. When a couple with children decides to end their relationship, the already emotional process can become even more complex if the separating parents wish to live in different states or different countries. Furthermore, if both parents wish to share custody of their child, their desires will be determined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which regulates these issues. The UCCJEA has been passed by Illinois and all of the other states in the United States. In this article, we discuss the UCCJEA and international child custody disputes.
Which State Has Jurisdiction When a Court in a Different State is Involved in Child Custody?
If one parent files a child custody case in one state and the other files in another, only one of the state’s courts has the authority, or jurisdiction, to hear the dispute. The UCCJEA has a framework to help judges decide which court is the best place to move forward. Typically, the court where a child physically lives will have jurisdiction; however, there are several exceptions that are designed to prevent a parent from just taking a child and running to a place that the parent perceives to be friendlier. Thus, when faced with an interstate or international child custody matter, a party is best served by acting quickly to seek adequate legal advice.
The International Child Custody Process for Determining Whether to Allow a Parent to Relocate a Minor Child to a Different State or to Another Country
In Illinois, the same application of factors used in cases where a parent seeks to relocate the children to another state on a permanent basis involves the same process as international custody law cases where the parent wishes to move the child out of the country. In both cases, Illinois courts will consider the indirect and direct benefits of the removal to the minor children. Relocation of children to another state, however, is a complicated process. It can be extraordinarily difficult for the custodial parent to convince the court that removal would be in the best interests of the children, particularly when removal is out of the country.
The Illinois Supreme Court has stated that the determination of the best interests of the child is not a simple test, but rather must be made on a case-by-case basis, depending on the totality of the circumstances. In re Marriage of Eckert, 119 Ill. 2d 316, 326 (1988), the Eckert court identified certain factors that help a court in determining the best interests of the child, including (1) the likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the child; (2) the custodial parent’s motives for seeking removal, to determine whether the proposed move is a ruse designed to frustrate or defeat the non-custodial parent’s visitation; (3) the noncustodial parent’s motives in resisting removal; (4) the effect removal will have on the non-custodial parent’s visitation rights because it is in the best interests of a child to have a healthy and close relationship with both parents, as well as other family members; and (5) whether a reasonable visitation schedule can be worked out. Eckert, 119 Ill. 2d at 326–27). In the 2017 case In re Parentage of P. D., the Illinois Appellate Court observed that the purpose of the Eckert factors is not to establish a test or checklist in which the parent seeking removal must meet every prong or more prongs than not; rather, the Eckert factors are to be considered and balanced by the trial court and no one factor is controlling in light of the circumstances of each unique case. In re Parentage of P.D., 2017 IL App (2d) 170355.
International Child Custody Disputes
If your child is presently overseas with the child’s other parent, the U.S. court can provide legal remedies. The United States is a member of the Hague Convention on International Child Abduction and countries who have signed this treaty agree to respect the custody decisions made in the courts of the member countries. Therefore, while international child custody law disputes are very complicated types of proceedings, they are also very common. Most International child custody cases involve a parent who wishes to take his or her children to another country on a temporary or permanent basis. More often than not, these types of cases involve a parent who improperly removes his or her children to another country in violation of a U.S. custody order.
To gain a clearer understanding of how International child custody cases are determined, it is worth examining the case of In re the Marriage of Akula, 2010 WL 3359660 (Ill.App. 1 Dist.) In Akula, the mother received sole custody of the minor child following the parties’ divorce. Years later, the parents agreed that the child would travel to India with the Mother and that the child would remain in India, with the mother enrolling the child in an Indian school and obtaining a residence permit. The Mother in Akula still maintained an Illinois residence, and the Father also had residences in both India and Illinois. At some point after the child’s move to India, the parents disagreed about several issues regarding the raising of the child and the father filed petitions in Indian court seeking sole custody of the child. In turn, the Mother responded by filing similar petitions in Illinois, claiming that the Illinois court should have jurisdiction since Illinois should be considered the mother’s and the child’s permanent residence.
The Indian court ruled that since both parents and the child were now residing in India, the child could not be removed from school in India. The court in Illinois issued the opposite ruling, holding that Illinois was still the residence of the child and the mother and that Illinois had continuing, exclusive jurisdiction over the parties and the subject matter. The Father appealed the Illinois ruling.
According to the Illinois Appellate Court, India was the proper place for the custody dispute to proceed. This is because, under the UCCJEA, a child custody determination made in a foreign country that substantially conforms with the jurisdictional standards of the UCCJEA must be recognized and enforced unless the child custody law of the foreign country violates fundamental principles of human rights. Furthermore, the Appellate Court held that Illinois loses continuing jurisdiction when a child, a child’s parents, or any person acting as a parent to the child no longer reside in the state where the original judgment was entered.
International Child Custody Law and the Improper Removal of a Child
The Akula case did not feature the improper removal of a child from the country during a divorce process, but such an event is extremely scary and represents a difficult process for both the child and the parent. In such an event, the Hague Convention, of which the United States is a member, requires the expedited return of children to their home country when custody orders have been violated. At the present time, 98 countries have signed the treaty. However, while many countries purport to subscribe to the treaty, noncompliance has been a substantial problem, specifically in Central and South American countries.
The attorneys of Anderson and Boback, LLC are knowledgeable and skilled in the area of international custody law and interstate relocation. We are available to provide legal and practical advice to parents facing an international child custody dispute. Contact us today to speak with an experienced family law attorney for a confidential consultation. Contact Robert Tarlock for questions about this blog.
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