Reviewed by Francis M. Boyer, Esq., Managing Attorney. Admitted in New York and before the U.S. District Courts for the Southern and Eastern Districts of New York. Board Certified in International Law by The Florida Bar (a Florida Bar credential). Updated September 2026.
Quick Summary: When it comes to the UCCJEA vs. the Hague Convention in New York, you rarely have to choose. The Hague Convention decides whether your child goes back to the country of habitual residence. New York’s UCCJEA decides which court makes the custody decision, and it treats foreign countries as if they were U.S. states.
Was your child taken or kept abroad in the last few weeks?
Write down the date your child left or was due home, then contact the State Department’s Office of Children’s Issues today to start a Hague application. Your six-month window to file for custody in New York is already running. Contact our international child abduction attorney in New York team at (646) 859-5885 for immediate assistance.
Key Takeaways:
- A New York court can bar international travel and order your child’s passport held, and asking before a trip gives you the most protection.
- New York applies its custody jurisdiction rules to other countries much as it applies them to other states.
- New York usually keeps custody jurisdiction for six months after your child is taken, as long as you still live here.
- If you file a Hague petition a year or more after the removal, your ex can argue your child is now settled abroad.
- You’ll often run a Hague case and a New York custody case at the same time, because each answers a different question.
Maybe your ex has booked a flight and won’t say when it comes back. Or a summer visit ended and your child never came home. Either way, two laws decide what happens next, and they answer different questions: whether your child must be returned, and which court gets to decide custody.
During 2025, the State Department’s Office of Children’s Issues handled 845 cases in which a parent sought a child’s return, involving 1,164 children. Those figures come from its 2026 Annual Report to Congress on International Child Abduction.
That same office is your first call if your child is taken from New York, because it serves as the U.S. Central Authority for Hague cases.
Can My Ex Take My Child Out of the Country in New York?
The answer starts with your custody order. Without an order limiting travel, a parent with custody rights can usually take your child abroad. But a child under 16 can’t get a new U.S. passport without both parents’ consent, and a New York court can restrict international travel.
Passports for Children Under 16
Under 22 C.F.R. § 51.28, you and the other parent must both apply for your child’s passport, or the absent parent must sign a notarized Form DS-3053 consent. Exceptions cover documented sole custody and exigent circumstances. The rule does not apply once your child already holds a valid U.S. passport or a passport from another country.
The Children’s Passport Issuance Alert Program
The Children’s Passport Issuance Alert Program covers U.S. citizen children under 18. File Form DS-3077, and the State Department can alert you to a new passport application. Existing and foreign passports fall outside it.
Travel Terms a New York Court Can Order
Your custody order can bar international travel without your written consent or a court order. The order can also require passports held by counsel, a notarized itinerary, return tickets, or a bond. If you fear your ex could take your child out of the country, ask a New York City family law attorney to add these terms now.
If Your Child Has Already Been Taken or Kept Abroad
When the trip has already happened, work through these steps in this order.
- Record the date your child left or was supposed to come back, and gather custody orders, school records and travel details.
- Contact the Office of Children’s Issues and open a Hague application if the country is a U.S. treaty partner.
- File in New York to start or enforce a custody case while the six-month home-state window is still open.
- Call police if your child is in danger. A relative who takes a child under 16 and removes the child from New York permanently, without legal right, may face a felony charge. That crime is custodial interference in the first degree under New York Penal Law § 135.50.
- Don’t try to bring your child back yourself. Self-help recovery abroad can hurt your case in both countries.
UCCJEA vs Hague Convention New York: What Is the Difference?
The Hague Convention decides whether a wrongfully removed or retained child must go back to the country where the child habitually lived. It does not decide custody. The UCCJEA, adopted in New York as Domestic Relations Law Article 5-A, decides which court can make or enforce a custody order. New York applies it to foreign countries too.
In the United States, the Hague Abduction Convention works through the International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq. (ICARA). Here is how the two laws compare.
| UCCJEA (NY DRL Article 5-A) | Hague Convention (with ICARA) | |
|---|---|---|
| Question the court answers | Which court decides custody | Whether the child must be returned |
| Where it’s heard | New York Family Court or Supreme Court | State or federal court where the child is located |
| Key test | Home state: six consecutive months before filing | Habitual residence: totality of the circumstances |
| Custody order needed? | Not to start a case; yes to enforce one | No |
| Timing pressure | Six-month window after the child leaves | One-year window before the “settled” defense opens |
| Main limits | Inconvenient forum, unjustifiable conduct | Settled child, grave risk, child’s objection, stops at age 16 |
| Countries covered | Any country | Only U.S. treaty partners |
How Does New York Apply the UCCJEA When a Child Is in Another Country?
New York courts treat a foreign country as if it were a U.S. state. So the home-state rule decides which country’s court makes the custody decision, even if the other country never joined the Hague Convention. If your child was taken to a non-treaty country, this is often your main legal tool.
Foreign Countries Count as States
Under DRL § 75-d, a New York court applies its jurisdiction rules to a foreign country the same way it would to New Jersey or Florida. It generally recognizes foreign custody orders made under substantially similar standards. The court may refuse when the foreign country’s custody law violates fundamental principles of human rights.
The Home-State Rule
DRL § 76 gives priority to your child’s home state: where the child lived with a parent for six consecutive months before the case began. New York keeps that priority for six months after your child leaves, if you still live here. Say your child was taken from Queens to another country three months ago.
You can usually still file in New York, but you have roughly three months left.
Once a New York court makes a custody order, New York’s exclusive, continuing jurisdiction rule generally keeps the power to change it here. That lasts until your family no longer has a significant connection to New York, or none of you still lives here.
Emergency Orders and Inconvenient Forum
When your child is physically in New York and needs protection, DRL § 76-c lets a court issue a temporary emergency order. That order lasts only until the court with regular jurisdiction acts.
On the other side, DRL § 76-f lets a New York court step aside for a better-placed forum. Judges look at domestic violence, how long your child has been away, and where the evidence sits.
How Does a Hague Return Case Work?
You file a return petition in the country where your child is now. You prove your child was wrongfully removed from the country of habitual residence, in breach of custody rights you were exercising. The court then generally must order return unless your ex proves a defense.
The Office of Children’s Issues helps you open the application abroad, but it doesn’t act as your lawyer.
Habitual Residence After Monasky
In Monasky v. Taglieri (2020), the Supreme Court held that habitual residence depends on the totality of the circumstances. No actual agreement between you and the other parent is required. That test is more flexible than the UCCJEA’s six-month count, so the two laws can point to different countries.
Where to File and Who Proves What
ICARA gives state and federal courts concurrent jurisdiction where the child is located. In New York City, a federal petition goes to the Southern District (Manhattan and the Bronx) or the Eastern District (Brooklyn, Queens and Staten Island).
The parent seeking return proves wrongful removal by a preponderance of the evidence. A parent raising grave risk must prove it by clear and convincing evidence.
The One-Year Clock and the Grave-Risk Defense
Article 12 sets the deadline that matters most. If you file a year or more after the removal, the court may refuse return because your child is now settled.
Under Article 13(b), a court may refuse return if it would expose your child to a grave risk of physical or psychological harm, or an intolerable situation. Golan v. Saada (2022) began in the Eastern District of New York, where a father sought his son’s return to Italy. The Supreme Court held that once grave risk is found, a court isn’t required to examine every possible ameliorative measure before denying return.
Which Case Should You File First?
If your child is under 16 and has been taken to a treaty-partner country, you will often start with a Hague application and file your New York custody case soon after. The Hague Convention on the Civil Aspects of International Child Abduction contains two important rules that can affect that timing. If the Hague Convention does not apply, your New York custody case may need to proceed on its own.
Article 16 of the Hague Convention limits what the court in the other country can do once it receives notice of an alleged wrongful removal or retention. The court generally should not decide the merits of custody until the return issue has been resolved. That protection can be lost if a Hague application is not filed within a reasonable time, which is one reason acting quickly matters.
Article 17 addresses the opposite problem. If the other parent obtains a custody order in the new country after taking the child there, that order does not by itself give the court a reason to refuse the child’s return. The court may consider the reasons behind the order, but the existence of the order alone does not decide the Hague case.
Whether the Hague Convention applies also depends on the relationship between the United States and the country where the child was taken. Our list of Hague Abduction Convention treaty partner countries explains which countries currently have a treaty relationship with the United States. Under Article 38 of the Convention, when a country joins by accession, the Convention takes effect between that country and the United States only after the United States accepts the accession.
FAQ About the UCCJEA and Hague Convention in New York
Can my ex take my child out of the country without my consent in New York?
A short trip may be allowed if no order restricts travel and your child already has a passport. A new U.S. passport for a child under 16 needs both parents’ consent. Keeping your child abroad in breach of your custody rights may be wrongful retention.
Does the Hague Convention decide who gets custody?
No. A Hague court decides only whether your child goes back to the country of habitual residence. The custody decision then happens in that country, usually under its own jurisdiction rules. In New York, those rules come from the UCCJEA. That split is why you may need to run both cases side by side instead of choosing one.
What if my child is taken to a country that is not in the Hague Convention?
The Hague return process isn’t available. You can still file for custody in New York, which treats that country as a state and may keep home-state jurisdiction. Enforcing the order abroad depends on the other country’s courts, so results vary widely. The Office of Children’s Issues can still offer country-specific information and help you contact officials there. Our international child custody dispute guide covers the wider fight.
How long do I have to file a Hague petition for a child taken from New York?
No hard deadline bars a petition. But if you file a year or more after the removal, the court may refuse return because your child is now settled. Filing well inside that first year keeps the strongest version of your case intact.
Talk to a New York Attorney About Your Child’s Custody and Return Case
If your ex is planning a trip, or your child is already abroad, what you file in the next few weeks shapes both cases.
Boyer Law Firm coordinates New York custody filings with Hague return cases from its Manhattan office. Francis M. Boyer, Esq., is admitted in New York and the Southern and Eastern Districts. He is Board Certified in International Law by The Florida Bar, a Florida Bar credential, and advises in English, Spanish, French, and Turkish.
If you fear your ex could take your child out of the country, or already has, schedule a consultation with our international child abduction attorney team in New York. Call (646) 859-5885 or visit 405 Lexington Ave, 26th Floor, New York, NY 10174.
Disclaimer: This article is for informational and educational purposes only and does not constitute legal advice. Reading it or contacting us does not create an attorney-client relationship with Boyer Law Firm, P.L. Attorney Advertising. Prior results do not guarantee a similar outcome.
