United States – New York

How can you prepare child relocation from or within the United States – California? What if your child has been relocated without your consent?

The United States are a member state of the Hague Convention on Child Abduction.

We will explain what this means for your options.

The relevant U.S. laws are:

  • the Parental Kidnapping Prevention Act and
  • the Uniform Child Custody Jurisdiction and Enforcement Act
  • the International Child Abduction Remedies Act (ICARA).

Parental authority: United States – New York

Decision making model

Authority

Whether or not both parents have rights of custody, is a matter of state law. In the state of New York, both legal parents have custody and can go to court to ask for sole custody (sole legal custody), or physical custody (residency/ primary placement) or visitation (secondary placcement). If only one parent has custodial rights, this means that this parent has the right to determine the child’s residence.

A legal father is a man who has signed an Acknowledgement of Paternity or received an Order of Filiation from the court or is listed as the father on the child’s birth certificate.  Each of these documents states that the man is the legal father of the child. There is a presumption that the spouse of the child’s birth mother is also the child’s parent, including when the child was conveived through artificial insemination or in-vitro fertilization with the spouse‘s written agreement.

Under a case decided in 2016, in some situations the domestic partner of the child’s birth or adoptive parent can establish parental rights, even if this person was not married to the parent listed on the child’s birth certificate and did not adopt the child. The former partner may need to prove that they and the other parent had agreed to conceive and raise the child together.

After a divorce generally both parents retain joint custody.

Traveling with children: United States – New York

Passport Issuance

Passport issuance to minors (Two Parent Consent Law), 22 U.S.C. 213n and 22 C.F.R. 51.28, requires both parents consent to the issuance of U.S. passports for children under the age of 16, unless the applying parent or legal guardian can establish that consent of both parents is not required.     

Travel consent form

If you want to travel abroad with your child, you need permission from the other parent, if the other parent also has custody.

Decision making model

Child relocation: United States – New York

Substitute permission

In the United States one parent needs the permission of tha other custodial parent for relocating the child to another state or another country. That parent can also ask the court for permission to relocate. The other parent can ask the court to ban the relocation. 

Criteria: Tropea v. Tropea

In the case of Tropea v. Tropea, the New York Court of Appeals has stated how a request for permission to relocate or a request to ban the move will be assessed.

The parties were married in 1981 and had two children. They divorced in 1992, pursuant to a judgment that incorporated their previously signed separation agreement. The agreement states that the mother, was to have sole custody of the children and the father was granted visitation on holidays and at least three days of each week. Additionally, the parties were barred from relocating outside of Onondaga County, where both resided, without prior judicial approval.

The mother asked the court for permission to relocate with the children and a change in the visitation schedule. She wanted to relocate because of her plans to remarry. Her faince had purchased a home in the other county . She was willing to cooperate with a liberal visitation schedule and she was willing to drive the children to the father’s home. However, both parties agreed that because of the distance visitation during the midweek would be impossible during school weeks. 

The father stated that the mother’s need to relocatie was because of her own life-style choise and that he should not be punished. If the mother would relocate, he believed he should be awarded custody. 

The presiding judge denied petitioner’s request. He applied a more restrictive view of relocation, finding that when the move unduly disrupts or substantially impairs the noncustodial parent’s access rights to the children, the custodial spouse seeking consent must bear the burden of demonstrating exceptional circumstances, such as a concrete economic necessity. Applying this principle, the judge found the petitioners desire to obtain a fresh start insufficient to justify the move.

Rather than applying the three-step meaningful access exceptional-circumstances analysis, each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. 

The Appeal Court mentions that these factors include, but are not limited to:

  • each parent’s reasons for seeking or opposing the move,
  • the quality of the relationship between the child and the custodial and noncustodial parent,
  • the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and
  • the feasibility  of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.

A geographical relocation restriction agreed to by the parties and included in their separation agreement might be an additional factor relevant to a court’s best interests determination.

Child abduction: United States – New York

Decision making model

The United States are a member state of the Hague Convention on Child Abduction.

The United States have non-binding memoranda of understanding with: Egypt, Lebanon and Jordan.

The relevant U.S. laws are:

  • the Parental Kidnapping Prevention Act and
  • the Uniform Child Custody Jurisdiction and Enforcement Act
  • the International Child Abduction Remedies Act (ICARA).

For more information, you can contact the Office of Children’s Issues, Bureau of Consular Affairs, U.S. Department of State in Washington. The USCA (U.S. Central Authority) will contact the alleged abducting parent to seek a voluntary return. The USCA will also offer mediation to the parents. The alleged abducting parent will be given a 2 week period to respond. If he or she responds, the USCA will work with the requesting Central Authority and all other appropriate entities in the U.S. to facilitate a voluntary return.

The USCA will also help to locate your child if necessary.

Prevention

In the U.S. there are several means to prevent the removal of re-abduction of a child:

  • the child’s passport(s) to be deposited with authorities
  • the alleged abductor’s passport to be deposited with authorities
  • obtaining orders toe prevent the removal of the child
  • issuing border and/or port alerts
  • requiring the alleged abductor to pay a bond/deposit
  • temporary placement of child in institutional care
  • entering a child into the Children’s Passport Issuance Alert Program (CPIAP)

In the U.S. all state and Federal courts have jurisdiction to handle a case under the Hague Convention. The judges can use the Guide for Judges, which is a guide from 2015 about Hague Convention cases.

The procedure can take more then 12 weeks, depending on the circumstances of the case. However, afther 6 weeks you can ask the USCA to seek a report on the status of court actions when no decisions has been reached by the end of six weeks.

Whether or not the child will have an opportunity to be heard depends on the particular case and is up to the descretion of the judge. The judge can decide to have a direct interview with the child, to ask for an independent report or appoint a legal representitive for the child. The HCCH Country Profile about the United States specifically mentions that when a guardian ad litem is appointed, he or she should represent the views of the child, rather then the best interest of the child, because a Convention proceedings is not a best interests determination. When a child is interviewd by the court, this is called ‘a Lincoln hearing’. Only the court, the child’s attorney and the child are present. Normally, the parent’s attorneys may submit questions for consideration by the court. The parents and their attorneys have no acces to the transcript of the child interview. 

In the U.S. the time limit within which an appeal must be lodged varies from one State to another. The duration of the appeal varies. The appeal procedure can take less than 3 months, but also longer than 6 months.

When a U.S. court orders the return of the child, ICARA requires the judge to order the abducting parent to pay the travel costs relating to the return of the child, unless the abducting parent can establish that such an order would be ‘clearly inapproprate’. The court can issue a ‘pick-up order’, and order f.i. a law enforcement entity to pick up the child from a certain location, such as the school or the home and escort the child to the other parent or an appropriate authority.

When the abducting parent does not follow the court order to return the child, the court can hold that parent in contempt. This may include fines and/or jail sentence until the terms of the order are fulfilled. The wrongful removal of the child is a criminal offence.

The USCA will provide information about mediation and refer the parties to mediators.

In the return proceedings legal representation is not required. The USCA will provide contact details of attorneys who in some cases are willing to provide free legal aid or reduced rate legal assistance. The attorneys can decide this for themselves, bases on their own investigation of the case and the parent’s financial situation. There are several organizations who provode legal aid. The USCA will provide the contact information.

Criminal law : United States – New York

In the United States, when the abducting parent does not follow the court order to return the child, the court can hold that parent in contempt. This may include fines and/or jail sentence until the terms of the order are fulfilled.

The wrongful removal of the child is a criminal offence.

Decision making model

Relevant websites : United States – New York

Permission form to travel with children

www.eforms.com : Minor (Child) Travel Consent Form

 

Relevant laws

www.travel.stat.gov : International Child Abduction Remedies Act (ICARA)

 

Central Authority

The Office of Children’s Issues, Bureau of Consq.ular Affairs, U.S. Department of State in Washington.

www.travel.state.gov : The United States Central Authority

 

Guide for judges

Federal Judicial Centre : A guide for judges

 

Annual report 

www.travel.state.gov : Annual report on International Child Abduction 2021

 

Blogs : United States – New York

 

International Child Abduction

International Child Abduction

By Johanthan W. Lounsburry Each year some parents are faced with a devastating reality: their partner has taken their child to another country and is refusing to return.  They are left-behind and at a loss of what do.  Not only is this an emotionally charged...

Relevant case law : United States 

Golan v. Saada

Golan v. Saada

Supreme Court of the United States, June 15, 2022 The Supreme Court ruled that a court is not required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that...

Monasky v. Taglieri

Monasky v. Taglieri

Supreme Court of the United States, February 25 2020 In Monasky v. Taglieri the Supreme Court rejected Monasky’s argument that an actual agreement was required in order to establish shared parental intent. Monasky is a U.S. citizen. Taglieri an Italian citizen. They...

Chafin v. Chafin

Chafin v. Chafin

Supreme Court of the United States, February 19, 2013 In Chafin v. Chafin the U.S. Supreme Court decided that an appeal procedure does not become moot if the child is returned pending appeal. In this case the District Court in Alabama had decided that the child must...

Lawyers and mediators in U.S. – New York

Richard Min

Richard Min

Lawyer