Navigating Child Custody Disputes: Wrongful Removal & Retention

Sad asian child girl hugging her mother in the paddy field with the sunlight, child custody dispute, wrongful removal, wrongful retention, parental kidnapping

In today’s interconnected world, international marriages and relationships are more common than ever before. While this globalized society offers numerous benefits, it can also complicate matters when relationships break down and children are involved. One of the most challenging issues that can arise in such situations is interstate and international child custody disputes, particularly cases involving wrongful retention, wrongful removal, or parental kidnapping.

Understanding the Basics

Parental kidnapping can happen within Florida, across state lines, and internationally. In the U.S., an average of 1,215 children were abducted by family members each year between 2016 and 2020. For domestic cases, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) establishes the regulations for child custody disputes that involve more than one state. International custody matters become more complex, especially when one parent removes or retains the child outside the U.S. without the consent of the other parent.

What is Wrongful Removal of a Child?

Wrongful removal occurs when a child, who has previously been in his/her state of habitual residence, is taken away to another jurisdiction, state or country. The removing party may be a parent, another family member, or someone acting on their behalf takes a child or children while depriving the other parent custody or visitation rights.

What is Wrongful Retention of a Child?

Wrongful retention occurs when a child, who has previously been for a limited period of time outside the state of its habitual residence, is not returned at the end of that limited period or beyond the period agreed by the parties. A child’s retention or concealment that violates custody rights, court decisions governing the distribution of parental obligations, or the rights to visitation or parenting time that have been granted or are otherwise recognized by law is referred to as wrongful retention or non-return of a child.

If, after the removal, the court of the child’s habitual residence issues a legal order giving interim care and control to the applicant and for the return of the child that is subsequently disobeyed, the court of the child’s habitual residence may deem the retention to have been “wrongful.”

“Wrongful removal or retention” are distinct incidents that happen on different occasions and are mutually exclusive. In both cases, these actions are considered violations of the child custody rights of the non-abducting parent. U.S. law states that wrongful removal or retention can occur even when there is no custody order in place.

UCCJEA Role in Protecting Families

The UCCJEA was created with the goal of assisting in the prevention of non-custodial parents abducting or removing their children. Regardless of the location of the parents or custodial guardians, the UCCJEA designates one “home state” for each child.

For custodial parents who have primary custody, the UCCJEA is in place to prevent a caretaker (family member), spouse, or former partner from moving the child within the United States.

The Hague Convention on the Civil Aspects of International Child Abduction

To address international child abduction issues, the international community developed The Hague Convention. This treaty, adopted by over 100 countries, establishes procedures for the prompt return of abducted children to their country of habitual residence. It is a valuable source of legal and procedural guidance for parents to help shield children from the dangerous impacts of international parental kidnapping. An expert in international family law can help parents understand how the Convention can be applied in their cases.

Wrongful Removal: The Legal Aspects

Proving Wrongful Removal

To establish a case of wrongful removal, the non-abducting parent must demonstrate that the child was taken to another state, country, or jurisdiction without their consent and that this action breached their custody rights. This can be a complex process, and expert legal advice is crucial.

The Role of the Child’s Habitual Residence

Determining the child’s habitual residence plays a central role in wrongful removal cases. Expert testimony may be needed to establish the child’s primary residence before the removal. Proving habitual residence is a key component of filing a claim under The Hague Convention, and the filing parent has the burden of proof.

The Convention does not explicitly define what constitutes habitual residence, but there are standards that are commonly used. You may be able to establish habitual residence based on where your child has lived and spent a significant amount of time. Specifically, whether your child has acclimated to the location and built relationships with people in that area is important. Alternatively, parental intent is sometimes relevant if both parents have already agreed upon where they intended to raise the child.

A combination of both of these approaches can also be used. Whichever method a court applies to parental kidnapping cases, determining habitual residence is a pivotal part of these international custody disputes.

The Convention’s Role in Wrongful Removal Cases

Under The Hague Convention, wrongful removal cases must be resolved quickly and efficiently. The legal processes and timelines can be intricate, necessitating the expertise of an international family law attorney.

Wrongful Retention: The Legal Aspects

Establishing Wrongful Retention

Wrongful retention cases involve situations where a parent fails to return the child to their country of habitual residence. Proving wrongful retention of a child often hinges on demonstrating that the child’s return was initially agreed upon or legally mandated.

Defenses in Wrongful Retention Cases

In some instances, the abducting parent may raise defenses against a wrongful retention claim. These may include allegations of grave risk, the child’s objections, the fact that the child has been retained for more than one year, or consent from the non-abducting parent. A court may decide not to return the retained child if a valid reason exists. Expert legal representation from an international child custody lawyer can help you navigate these complexities.

The Convention’s Role in Wrongful Retention Cases

Just as in wrongful removal cases, The Hague Convention offers legal avenues for addressing wrongful retention of a child. An international family law expert can guide parents through the steps necessary to secure the child’s return.

Legal Remedies and Enforcement

The time you spend away from your child during an international custody dispute can feel unbearable, but following the proper course of action is important for your child’s well-being.

Recovery Orders and Their Enforcement

Once a court determines that wrongful removal or retention has occurred, it may issue a recovery order. However, enforcing such orders across international borders can be challenging. Expertise in international enforcement mechanisms is invaluable.

The U.S. Department of State recommends taking action as soon as possible following parental kidnapping or wrongful retention of a child. A Hague application should often be filed within one year. Extended delays could complicate the process and make it more difficult for the filing parent to recover physical custody of their child. Again, a custody order does not need to be in place for The Hague Convention rules to apply, and parents should not wait for entry of an order before initiating a filing.

Child’s Best Interests

Throughout these proceedings, the child’s best interests remain paramount. Expert lawyers will consider how the child’s emotional and psychological well-being can be preserved during these challenging times. This can be difficult considering the upheaval and stress parental kidnapping creates for children, but one of the core intentions of The Hague Convention is to address these detrimental effects.

Do You Need an International Child Custody Lawyer?

International child custody disputes involving wrongful removal and retention are legally complex and emotionally taxing. Parents caught in these situations require expert guidance from attorneys well-versed in international family law. Understanding the intricacies of The Hague Convention, establishing habitual residence, and navigating the legal processes are essential steps towards reuniting children with their custodial parents and ensuring their best interests are protected.

If you find yourself facing a wrongful removal or retention situation in an international child custody dispute, do not hesitate to consult with an expert in international family law. The Boyer Law Firm can provide the necessary legal expertise and support to help resolve these complex matters. Your child’s well-being and your rights as a parent deserve nothing less. Call us at 305-921-9665 to schedule a free case evaluation.