What do you do if your spouse takes your children out of the U.S. and won't return them? You may believe that your spouse is planning to divorce you and trying to go forum shopping, looking for a court that will grant him or her exclusive custody of the kids and cut you off from them entirely. If he or she was born in the other country or has strong family ties there, you might be right. You need to act fast, in order to get the courts in both countries to act on your behalf. Here's what you should know.
Understand The Hague Convention's Goals
More than 70 countries are signatories to the International Treaty on Child Abduction, also known as the Hague Convention. As long as the country your children are in is one of them, you stand a good chance of getting your children returned to you.
The Hague Convention was specifically designed to prevent parents from trying to use the courts of one country to circumvent the courts of another. The Treaty's goals include returning children to their usual residences and restoring whatever custody status and parental access was in place before the children were taken.
Avoid Giving Your Ex-Spouse A Defense
Don't try to negotiate with your spouse on your own, hoping that you can get him or her to voluntarily return to the U.S. with your children. You could end up accidentally giving your spouse an affirmative defense. An affirmative defense allows your spouse to allege that the circumstances of the situation make his or her actions okay.
In the case of a Hague Convention violation, the circumstances of a case can weigh very heavily in the court's decision for or against you. Not taking legal action immediately after you find out that your children have been taken outside of the country could be considered a sign that you either consented or acquiesced to the move at the time and have just changed your mind since.
A delay can also give your spouse another way to avoid returning your children: if enough time passes that your children become "well-settled" in their new country, then the Hague Convention can permit your spouse to keep them there. It could also be interpreted as a lack of significant involvement on your behalf with your children, which is another affirmative defense under the Hague Convention.
Instead, spend your time working with an attorney (such as Andrew H P Norton) to gather evidence that refutes any defense your spouse is offering. If your spouse has relocated to a country that isn't a signatory to the Hague Convention you may need to arrange for legal representation both here and abroad to fight for custody.Share