Careful consideration is advised before relocating to another country with your family if
you anticipate concerns regarding divorce or child custody.
By way of example, let us take Mexico, a signatory to and member of the Hague
Convention. For now, we will discuss what could happen in Mexico if that were the
country to which the family moved.
Article 11 of the Mexican Constitution is strong on freedom of travel and states that any
restriction on freedom of movement—including limitations on a parent’s ability to travel
abroad with a child—and often requires a prohibitive court order. While this provision
appears protective, it carries implications: under certain circumstances, a spouse may
obtain a protective order from a Mexican court prohibiting children from leaving Mexico,
even if they are only temporary residents. To secure such an order, a party must allege,
substantiate, and prove wrongful removal pursuant to Article 3 of the Hague
Convention. The Hague convention is only applicable to those countries that are on the
member roster. The Hague Convention laws then become applicable in international
child disputes.
Thus, when a petitioner seeks to look to secure the exceptional remedy of return under
the Hague Convention and ICARA the petition needs to meet certain thresholds and if
the case does not meet the Convention’s threshold requirements it will be dismissed
and the relief will be denied. This is because the Convention is narrowly focused on
jurisdictional issues; it does not resolve custody nor assess parental suitability. Its sole
purpose is to determine whether a child has been wrongfully removed or retained from
their habitual residence in violation of enforceable custody rights.
Understanding the Hague Convention in Child Custody Disputes
The Hague Convention establishes a jurisdictional framework for international child
custody cases, without adjudicating custody or evaluating parental fitness. Its primary
focus is on whether a parent has wrongfully removed a child in violation of another
parent’s rights, whether the chosen country constitutes the child’s habitual residence,
and whether the child should be returned to that formal habitual residence or remain in
the country of origin The Convention concentrates exclusively on the legality of removal
or retention, not on custody arrangements or parental qualifications.
In evaluating such cases, courts primarily consider two factors: the child’s habitual
residence and whether parental rights have been violated in the child’s removal. These
cases are typically filed in Federal Court, although matters relating to the Hague
Convention and writs of habeas corpus can also be addressed in the New York
Supreme Court or in local family courts handling writs and custody.
For example, if a family resides for a few months and resides only temporarily in China
while maintaining permanent residency in New York, and one parent relocates the
children back to the United States, the other parent may pursue a Writ for the children’s
return to China—even if citizenship was never established there. However, they will
likely fail in this endeavor, since in this example the stay was very temporary.
Consider this example: If a family lives in Russia for three years intending to stay, but
one parent later takes the children back to New York, a petition under the Hague
Convention may be filed in U.S. courts to have the children returned to Russia. While
details vary by case, the court could order their return, after which custody issues would
likely be resolved in Russia.
In conclusion, the petitioning parent must assert that the foreign country was the child’s
habitual residence and that their custodial rights were infringed. Establishing a strong
case is facilitated by holding a custody order prohibiting travel. If there are suspicions
that a spouse may move the child back to the United States with the intention of
remaining in the foreign country, possessing a custody order enhances the claim’s
strength.
There is considerably more to address regarding this subject, and I intend to publish
additional articles in the future. However, it is important to note that these situations are
complex, and it is advisable to consult an attorney before relocating abroad with
children.
I hope you found this article helpful.
By; Lisa Beth Older
Your New York Divorce Lawyer
These statements do not constitute legal advice; individuals are
encouraged to consult an attorney with expertise in international law for
guidance.