USA: Cross-Border Issues Are Not Always Limited to Business Deals



Present political discourse and “wall” talk aside, the reality is that we live in a globalized world, where state and foreign borders pose significantly less hindrance to relocation than even a generation ago. With its economic advantages, Texas is an attractive destination, not just for other Americans, or our Canadian and Mexican neighbors. New Texans are coming from around the globe.

What hasn’t changed are the inherent biological impulses of humans: People fall in and out of love regardless of geographic location. Children may inevitably enter the equation. If so, a host of international legal issues may arise, including complicated custody litigation, in the event of a falling-out. A custody order is essential to get clients on the path to a solution. If one doesn’t already exist, getting one should be priority one, as it will be key in demonstrating custody rights.

In Texas, this means filing a petition that will encompass a Suit Affecting the Parent-Child Relationship (SAPCR). If you’re filing such a petition in this state, it’s safe to assume that at least a parent is here and that the child has resided in Texas for the requisite six-month period to establish this as the “home state,” per the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Once service is perfected, the next priority is to seek temporary orders, especially before the other parent tries to take the child to another state.

The UCCJEA is a powerful enforcement mechanism, providing the court broad powers, including restricting access to passports and potentially taking immediate physical custody of the child to prevent removal from the jurisdiction. It also works reciprocally. A registered foreign custody order will be given the same effect as orders from other states in this country.

The UCCJEA also incorporates, by direct reference, the Hague Convention on the Civil Aspects of International Child Abduction, a multilateral treaty developed to help return children abducted away from their home of “habitual residence.” However, because the UCCJEA doesn’t require a Hague Convention abduction case to be filed to enforce a child custody determination, it may be significantly more expedient to simply register the order.

International child custody cases present situations that are not always tidy. Indeed, a parent may have already taken a child out of Texas. If that’s the case, then the likely best recourse will be found through application of the Hague Convention on child abduction. If so, then there are two major considerations to address.

First, and a very basic concern, is if the other country is a signatory to the convention. If not, then getting the abducted child back is sadly much more challenging. Fortunately, much of the world has signed on to the convention—though India and China are notable, population-rich exceptions. Recourse to the convention, in the event that a child was abducted from Texas, also assumes it can be proven that Texas was the child’s habitual residence. The Hague Convention’s habitual residence requisite lacks the bright-line six-month basis found in the UCCJEA. As a result, evidence indicating their place of habitual residence is imperative: Where did they attend school? For how long? Where were their doctors? Were they involved in sports or other extracurriculars? The more mundane and exhaustive the facts, the better.

Second, you will likely be required to follow the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Though the purpose of this treaty is to simplify international service of process, each of 73 signatory states has its own particularized procedure to follow. Generally, the pleading is first processed through a “central authority,” although there are often no real assurances that they’ll follow-through on the service of process either, leading to particularly frustrating delays. To secure a higher likelihood of effectuating service, utilizing an international process server is advised. Typically, this means filing a motion to designate them as an authorized service agent.

The whole process of service may take an agonizingly long time—depending on the country, as much as six to 12 weeks. This means taking immediate action is an imperative should a child be taken without both parents’ consent. Time is of the essence to prevent the potential that the new foreign country could be construed as the new “habitual residence.”

Though a country may be a signatory to the Hague Convention on child abduction, don’t expect that they will apply application as strictly and fairly as courts here. The deck may be stacked in favor of the foreign litigant simply because of that venue’s favoritism for their own citizens.

To paraphrase Smokey Bear, “Only a proactive parent can prevent child abduction.” If a parent takes their own child to an international airport in the United States, the gate agent won’t stop them from departing American soil. Depending on their destination, however, they may not get out of the airport once they’ve landed. Canada, for example, is notoriously strict about allowing a parent and a child entry into the country without express notarized consent of the other parent, which has spoiled many fishing and hunting trips for less-than-diligent parents.

Finally, while it may seem that it’s impossible to have a situation where one parent is allowed to relocate abroad with their child, it can be accomplished. Given the impracticability of frequent international travel, the typical compromise is that the non-primary parent gets the entire summer and most holidays, instead of regular, shorter visits. Not perfect, but for some that’s a workable arrangement.

Regardless, getting an order that details all the arrangements, expectations, rights and duties is imperative and will help put you on course to a situation that avoids the serious frustration and costs that otherwise accompany international child custody litigation.

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