When a child is brought to Texas from another country against the will of the child or the child’s parent then we find ourselves in a serious situation. Given the location of Texas, we live in a state where international child abduction is more prevalent here than in other places in the United States. This is likely due to our being a border state as well as there being a large international presence in the state as far as our residents are concerned. These factors add up to international child abduction being an issue in Texas that you may need to keep your eye on when it comes to your family law case.
The way that an international child abduction case would work is that the case would utilize federal laws on internal child abduction. A Texas family court would need to either choose to accept jurisdiction or could decline. There are three laws that we need to be aware of as we discuss the subject of international child abduction cases. Those laws would be the Parental Kidnapping Crime Act of 1993, the International Child Abduction Remedies Act, and the Hague Convention on the Civil Aspects of International Child Abduction. When we talk about a child custody case in Texas involving an international abduction it is these laws that will have the greatest impact on that case.
The complexity of an international child custody case
What we need to keep in mind is that international custody cases are complex. Do not underestimate just how complex they can become due to the varied nature of the subject matter that goes into these types of cases. First, all family law cases are complex given that they are incredibly fact specific. In a family law case, you cannot simply take the law and apply it directly against the facts of your case and call it a day. Rather, a judge will need to look at exactly what is happening in your case to make good decisions in the best interests of your child. What we also know is that when you are dealing with a child crossing international borders without the consent of a parent the circumstances of your case will be among the most complex of any child custody case.
Next, the laws that will be utilized in your case will be more difficult to apply given their complexity. Consider that the laws I mentioned at the beginning of today's blog post are utilized in family courts around the world. With that said, these laws can be difficult to apply given that they consider very specific situations which may not be perfectly in line with what you are going through with your child. As such, the judge in your case will likely have to craft the orders and decisions that he makes based on laws and legal precedents that do not exactly track well with Texas jurisprudence.
Another factor to consider is that in most family law cases the two parents can at least consider negotiating with one another. Even if these parents do not see eye to eye very much, the fact is that they can and usually do set aside their differences to be able to take advantage of the opportunities presented to them as far as negotiating child custody orders that are in the best interests of their children. These parents can set aside their differences and their egos to do what is best for their children. In an international child abduction case, the likelihood of this occurring is much less given the serious nature of international child abduction. you will likely find yourself in court more often than most people who go through a child custody case. This can increase the costs, time commitment, and overall complexity of a case.
Negotiations in an international child custody case
As you can probably imagine, negotiating an international child custody case is not easy. For all the reasons we listed above, there are specific parts of your case that will need to be negotiated with delicacy, to say the least. We can walk through some of those reasons why right here, right now. However, if you have any questions about the material that we have presented in this blog post please call the Law Office of Bryan Fagan today. We can work with you and your family and make sure your child is safe, establishing jurisdiction over the case in Texas and helping to prevent another situation where your child could be put in harm's way. A consultation with our office is free. A consultation with our office allows you to present your specific circumstances to an experienced attorney who can give you information that pertains to you all in the here and now.
Let's start with a child custody schedule- otherwise known as possession and visitation. In a typical child custody case, the parents will negotiate over these terms relating to how often the child can spend time with each parent. Usually, one parent is the primary caretaker and ends up with the child more during the school year than the other parent. Weekends are alternated throughout the year. Holidays are split 50/50. The summertime is spent with the nonprimary caretaker getting an extended period of possession- usually thirty days straight. This is what most family law cases end up looking like whether it is a divorce or a child custody case.
In a situation where parents live in different countries or at least in different cities or states, it can look much different. For one, you cannot simply agree to a situation where you and your co-parent have alternating weekend visitation. For one, you both don’t live a couple of neighborhoods apart like most families do after a child custody case. Rather, the two of you live at least a few states away from each other if not in different countries. As a result, it is essential that you can think up a creative yet functional visitation schedule that will work for the two of you. It may not be the optimal situation for your child right now, but you need to be able to think critically about this and produce a schedule that works fine at least for right now. Considering the differences in your location that could be something significant as far as a challenge is concerned.
Another issue that you all will have to get past, or not, is the physical safety of your child as he enters a shared custody situation with you and your co-parent. This can mean a couple of different things. You may move for a sole managing conservatorship (more on this later) where you can ask the judge to have the lion's share of possession time for your child due to your co-parent being unable to make good decisions for your child consistently. Your child's safety is of the utmost importance to a family court judge. As a result, if your co-parent has a history of not making good decisions for your child then this is a mark against him. Attempting to abduct your child or successfully doing so is something that may have seemed like a good idea to him at the time but will certainly not be viewed that way now that you are involved in a divorce or child custody case. You may also try to have restricted visitation with your child and his other parent for a time until he can show that he can make good decisions and regain your trust. Considering the magnitude of what he did this may take a long time and be easier said than done.
The cost of transportation is something significant as well. We know that gas is expensive these days. Plane tickets are expensive as a result. Hotel stays time off from work to help make it all function. These are considerations when families live a long way apart. Figuring out a way to divide up these costs is a big part of the negotiations in your case. You will have a limited amount of time to negotiate before a judge will have to decide for you in a trial. Before you even get to that situation you must try out whatever possession schedule you have in place currently and then see if that works out for you two. If not, you will have to go back to the drawing board.
Another subject that will be important in a case like yours is that of conservatorship rights and duties. This is an often-overlooked part of a child custody case. Conservatorship rights are the ability to make decisions on behalf of your children. These are related to school issues, medical care, and things of this nature. They can also relate to the ability to raise your child in your religious background and what your child’s upbringing will be in that regard. Sometimes you see issues related to religious upbringing come up more in a case that involves international child abduction. If so, that may have even been the primary reason why people take risks like that with their children.
How the law applies to your situation will also be important. Not only are you looking at a situation where you want to make sure that you are in a good position as far as custody is concerned but you also want to make sure that you are doing everything possible to ensure that your child is safe. A safe child is a goal in your circumstances. If you can't keep your child safe, then everything else is just window dressing. This is point number one for you and the family court judge that will be overseeing your case. With that said, here is how those international laws dealing with child abduction will relate to your case with the family court.
The Hague Convention- what is it and how will it impact your case?
The Hague Convention has everything to do with how international child custody issues are decided. Whether your case will be able to be filed in either federal or state court also has a lot to do with the Hague Convention. Since there are so many different components to the Hague Convention, we will only spend time here discussing those that relate to child custody and international child abduction. If a country has signed onto the Hague Convention their doing so makes sure that your child will be promptly returned to you if they have been wrongfully abducted or removed from your home. Additionally, the possession and access orders of your child's home country or jurisdiction will also be honored by other courts.
If your child was taken to another country from Texas, and that another country has signed onto this Hague Convention treaty, then that other country must honor the laws of the United States and Texas when it comes to custody. The court allows for remedies available under American law which include the prompt return of your child to you if that is appropriate given the circumstances.
On the other hand, if your child has been taken to Texas from a country that adheres to the Hague Convention then a Texas family court must listen to the laws of the child’s home country if a child custody order is in place. The Hague Convention says that if your child was removed from their home country wrongfully then that should be assessed against the orders contained in that country’s child custody orders.
A major point to make in this regard is that the countries that have signed onto the Hague Convention are supposed to be helping one another when it comes to child abduction situations. If American law enforcement or a court were to contact another country where your child was taken to, then that country is supposed to cooperate with the law here in the United States as far as a return home is concerned. As with most situations in life, this will depend a great deal on the specific country. Some countries have signed on to The Hague Convention but are less than helpful when it comes to assisting with custody circumstances. If there is a specific country that you have in mind you can look up the signatories to The Hague Convention and see if that country has signed on.
Proceedings with The Hague are supposed to move quickly. The courts in the United States and other countries are required to act as quickly as possible when it comes to returning your child home. In a perfect world, these types of cases will be resolved in six weeks or less. You must be able to file an emergency petition or a habeas corpus lawsuit as quickly as possible once your child has been removed from their home. So long as this lawsuit is filed within one year of your child being wrongfully removed then the foreign court should order the return of your child.
There are two ways for your co-parent to be able to defend themselves in a situation where you are alleging that he or she removed your child wrongly from their home country. The first situation is if you were not taking advantage of your custody rights. the second defense that could be offered would be if your child was at a significant risk upon being returned home then the abduction or removal from your child's home by your co-parent would not necessarily be overturned.
How an experienced family law attorney can help
It is not an exaggeration to say that if you are a parent whose child has been abducted then you Are looking for help wherever you can find it. It is a desperate situation for you to find yourself in when you cannot guarantee the safety of your child. When it comes to circumstances like this you need to be able to act quickly. Any delay can significantly bring into question the safety and well-being of your child. In a scenario like this having an attorney can be a great advantage for you. Part of acting quickly means being able to utilize the laws that we have discussed in today's blog post to your advantage. Having the desire to move quickly isn't enough. You need to be able to file an emergency petition, prepare for a hearing, and seek out whatever remedies are available to you under the law. It is important, as well, for you to keep in mind that there are multiple directions in your case that can go in. There is no guarantee for any particular result, but you can position yourself best by having an experienced attorney on your side.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in this blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way to obtain information about your specific circumstances as well as to learn how your family may be impacted by the filing of a divorce or child custody case.