United States
How can you relocation with your child from the United States? What if your child has been abducted from the United States without your consent?
The United States is a party to the 1980 Hague Convention on Civil Aspects of International Child Abduction (“Hague Abduction Convention”), but not the 1996 Hague Convention on the on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
We will briefly explain what this means for your options.
Other relevant U.S. laws include:
• International Parental Kidnapping Crime Act (IPKCA)
• Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
• International Child Abduction Remedies Act (ICARA)
• Uniform Child Abduction Prevention Act (UCAPA).
Lawyers and mediators in United States
We provide a list of lawyers and mediators in the United States who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.
Parental authority or Rights of Custody: United States
Whether or not both parents have rights of custody, is a matter of state law. In the United States, both legal parents have equal rights of custody and must go to court to ask for sole legal custody (decision making ability), or sole physical custody (with whom the child primarily resides), or visitation/parental access (how often the non-custodial parent sees the child). Even if only one parent has sole legal custody, this does not mean that this parent has the right to determine the child’s residence over the objection of the other parent especially if a change in the child’s residence would affect the non-custodial parent’s ability to visit with the child.
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. There is a presumption that the spouse of the child’s birth mother is also the child’s parent, including when the child was conceived through artificial insemination or in-vitro fertilization with the spouse‘s written agreement.
The concept of parental rights has been expanding for many years and in some situations the same sex 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 formally 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.
Traveling with children outside the United States
Passport Issuance
Pursuant to U.S. law (22 C.F.R. 51.28), the consent of both parents is necessary for 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, such as when one parent has sole legal custody of the child and is not restricted from traveling with the child.
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.
Child relocation: United States
In the United States one parent needs the permission of the other custodial parent for relocating the child to another state or another country. That parent can also ask the court for permission to relocate. Similarly a parent can ask the court to prevent any such relocation. Like all issues pertaining to the custody of a child, the laws and procedures may differ slightly between the various States.
For example, in the case of Tropea v. Tropea, the New York Court of Appeals (the highest court in the States of New York), stated that 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 serves the best interests of the child.
The Appeal Court gave the following examples:
• 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 formalized in an agreement might be an additional factor relevant to a court’s relocation determination.
Child abduction: United States
The United States is a contracting member state of the Hague Abduction Convention.
The United States have non-binding memoranda of understanding with Egypt and Lebanon reinforcing a parent’s right to have meaningful access to children.
Other relevant U.S. laws are:
• International Parental Kidnapping Crime Act (IPKCA) – a federal crime to remove or retain a child outside of the U.S. in violation of another parent’s custodial rights.
• Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) – a state law passed in 49 of 50 U.S. States concerning jurisdictional disputes in custody matters.
• International Child Abduction Remedies Act (ICARA) – the federal law that implements the Hague Abduction Convention in the U.S.
• Uniform Child Abduction Prevention Act (UCAPA) – a state law passed in approximately 15 U.S. States empowering courts to address risk of abduction through preventive means.
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 a child who is at risk of being abducted. This can be based on UCAPA which exists in less than half of U.S. States or on other laws. Some of these means include:
• the child’s passport(s) to be deposited with authorities;
• the alleged abductor’s passport to be deposited with authorities’
• obtaining court orders to prevent the removal of the child;
• issuing border and/or port alerts;
• requiring the alleged abductor to pay a bond/deposit;
• entering a child into the Children’s Passport Issuance Alert Program (CPIAP)
Child Abduction Litigation in the U.S. – Hague Abduction Convention
The USCA will provide information about mediation and refer the parties to mediators.
In the U.S. all State and Federal courts have jurisdiction to handle a case under the Hague Abduction Convention.
The procedure can last from several weeks to several years, depending on the circumstances of the case and in which jurisdiction the case is commenced. For example, cases with complex issues, such as grave risk of harm, and which involve appeals, likely will last several months to over a year. However, a case with fewer issues and with no such appeal may be decided within a month or two. However, after six weeks, a reason can be requested as to why the proceedings have not yet been completed.
Whether or not the child will have an opportunity to be heard depends on the particular case and is up to the discretion 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 representative for the child. The HCCH Country Profile about the United States specifically mentions that when a guardian ad litem or other legal representative for the child is appointed, he or she should represent the views of the child, rather than the best interest of the child, because a Convention proceeding is not a best interests determination. When a child is interviewed by the court, this is usually done out of the view of the public court (in camera). Normally, only the court officials, 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 should have access to the transcripts.
When a U.S. court orders the return of the child, ICARA requires the judge to order the abducting parent to pay the costs and fees relating to the litigation, unless the abducting parent can establish that such an order would be ‘clearly inappropriate’. The court can issue a ‘pick-up order’, and order 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.
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 may provide legal aid.
Criminal law : United States
In the United States, when the abducting parent does not follow the court order to return the child or any other court order, 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 removal or retention of a child outside of the U.S. in violation of another parent’s custody rights is a criminal offence pursuant to the IPKCA. However, if the parent who took the child had a custody order valid pursuant to the UCCJEA requirements, was feeling domestic violence, or did not return due to circumstances outside his or her control, then such reasons would be a defence against criminal prosecution.
Relevant websites : United States
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 2022
Blogs : United States
Judicial Interviews of Children in U.S. Hague Abduction Convention Cases
Judges are permitted to interview children in their parents’ Hague Abduction Convention cases in the United States. In fact, this is a common way to elicit a child’s views (and to assess their maturity) in recent years. But, should judges be conducting these...
The U.S. Government “Compliance Report” for International Parental Child Abductions
Every year, sometime between April and June, the U.S. Department of State publishes a statutorily mandated report outlining statistics on every case of child abduction reported to their agency in the past calendar year. This report, required by the International Child...
The Hague Abduction Convention or the UCCJEA?
The Hague Abduction Convention or the UCCJEA? Which should we use? by Jeremy D. Morley If a child is abducted to the United States from a country that is a party to the Hague Abduction Convention, the left-behind parent usually has a choice of seeking the child’s...
Relevant case law : United States
Golan v. Saada
In Golan v. Saada 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 return would expose the child to a...
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...
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...
Lawyers and mediators in the United States
