International Custody 101: Helpful Tips for Parents

By Christine Powers Leatherberry

In the wake of actress Scarlett Johansson’s split from French journalist Romain Dauriac and pending custody concerns regarding the couple’s young daughter, Dallas family law attorney Christine Powers Leatherberry shares advice for parents facing international custody disputes.

Custody disputes between high-profile couples can become very heated, even when they play out in one country. However, what happens when one parent files for custody in the United States, while the other parent hopes to maintain custody of the child in another country?

In the case of Scarlett Johansson and Romain Dauriac, the Daily Mail reports that she has requested daughter Rose reside with her in New York, while he allegedly will be petitioning the court to take the child to live with him in his native France.

While we don’t know all the details pertaining to Johansson and Dauriac’s dispute, what we DO know is every international custody dispute plays out differently. In addition, they are almost always more complicated than traditional domestic child custody issues.

Two of the biggest challenges that arise during international custody concerns include:

No. 1: Jurisdiction and the Hague Convention.

Where your child’s custody case will be heard and which country’s laws apply are the first issues that need to be addressed during an international child custody dispute.

If your case ends up in a different country, you literally have to deal with a foreign legal system, and that definitely complicates things. Issues can be compounded further, should one parent illegally move a child to another country without the other parent’s consent.

The Hague Convention on the Civil Aspects of International Child Abduction (also known simply as the Convention) is a multilateral treaty developed by the Hague Conference on Private International Law that helps ensure a child abducted by a parent from one member country to another be expeditiously returned.

However, the primary role of the Convention is to determine in which country the custody issues will be heard, and that determination is based on the “status quo” in regard to where the child had been regularly living prior to being kidnapped and moved to another country.

For example, if a parent takes off to Peru with his or her children, which basically amounts to a parental kidnapping, then Peru and the United States (which are both parties to the Convention) would work together to get the children back to United States, because that was the status quo before the alleged wrong happened.

Even when international kidnapping isn’t an issue, jurisdiction still needs to be established. Where the child has regularly resided prior to the parent filing for custody – again, the status quo – is typically the primary question for the court.

No. 2. Failure by other countries to recognize orders issued in the U.S.

Another common issue our international custody clients face is noncompliance with court orders by the other parent. Unfortunately, many other countries won’t force parents to abide by custody orders issued in the United States.

For example, an American court could order a father to pay $2,000 per month in child support or afford the mother the right to establish residence. However, the court in the other country could assert that it has jurisdiction over the case and refuse to enforce the U.S. court’s order.

That’s why we typically recommend hiring attorneys in both countries, at least for a period of time. The attorney in the other country can help you navigate the custody laws of the foreign legal system. He or she can also advise you regarding how to get the Convention treaty applied in your situation and explain the logistics for getting your children back.

Seven additional tips for parents facing international custody issues

  1. Act quickly. Speak with a family law attorney before moving your children overseas or if you are concerned that your spouse is preparing to kidnap your child and take them to a different country.
  1. File first. When possible, we typically advise clients to be the first to file for custody and to do so in the country where they want to reside with their children. Oftentimes it is easier and cleaner to acquire jurisdiction that way, and you have more control over timing and the process.

If the other parent has taken the children to another country that isn’t a party to the Convention, you may need to file suit in that country.

  1. Keep children in the country where you want them to reside. If international custody issues are a concern, relocating your children to a different country, even for a short vacation, could put your preferred jurisdiction at risk.
  1. Find out if the other country is a party to the Convention. You can review the list of Convention members here as well as which aspects of the Convention each member state has agreed to follow.
  1. Compare custody laws in both countries to see which laws are more favorable for your circumstances. If you and your children maintain dual citizenship, you may find the laws in one country are preferable to another. Rely on attorneys in both countries to help you weigh your options.
  1. Reach out to a U.S. embassy or consulate for help. If you need to find an attorney overseas, the embassy or consulate serving that region may be able to provide a referral.
  1. Once the dust settles, plan for visitation and travel. For parents who get along well and agree on sharing custody overseas, we typically advise them to be flexible about allowing the other parent extra makeup time. Children won’t be able to attend school in both countries and have regular weekly or even monthly visits most of the time, so makeup time can be accomplished with longer periods of possession time during the summer, holidays, spring break and fall break.

In addition, if they have the resources, we generally recommend that the parent who chose to move away pay for travel expenses and be responsible for traveling back and forth with younger children who can (or should not) travel unaccompanied.

Contact a reputable family law attorney for advice

Clearly, international divorce and child custody disputes can become complicated quickly. As soon as custody issues become imminent in your divorce, contact a divorce attorney with experience handling such matters to be your guide.

Christine Powers Leatherberry is a compassionate family lawyer who represents clients with divorce and child custody concerns in the state of Texas in the United States.  If you have an international custody issue and your children live in the DFW area, you should contact Christine. She is equally comfortable in the courtroom as she is counseling her clients one-on-one. She is a past chair of the Dallas Junior Board of the Big Brothers Big Sisters and was a Big Sister to the same Little for 11 years. For insight on how to approach an international custody dispute, please call 214-306-8441 to speak confidentially with a knowledgeable and considerate member of the Connatser Family Law team.