We live in a Global Society. At the Marin Law Firm located in Orlando, Florida we see an increase in international couples having children. It is not uncommon to find couples that each is from a different country, the couple has a child that was born in a third county, and one parent has wrongly removed the child and is currently living in the United States with the child.
In general, it is not unlawful for a parent to travel with their child outside the United States without the consent of the other parent, as long as the parents are still married and there is no court order limiting travel abroad. If there is a court order or a parenting plan that addresses the child’s travel, then that court order must be followed. However, if a parent travels outside the United States (traveling parent) without the consent of the other parent (non-traveling parent), violates court order, or does not return the child within the agreed time, the retention in the other country can be said to be unlawful.
Many times, we are contacted when a parent is accused of unlawfully removing a child from another country to the United States. We have been able to guide the parent through the federal court process and provide aggressive defense to allow the child to remain in the United States.
If you're in this situation right now, or you fear that your ex could take your children out of the country against your will, you need to know how various child custody laws and statutes can protect your children and help you resolve an international custody battle quickly and safely.
Hague Abduction Convention & The International Child Abduction Remedies
At the Marin Law Firm, attorney Carmelina Marin has handled many cases in the Middle District of Florida helping parents to have their children returned to the “home state” and defending parents accused of wrongfully removing the child. Attorney Carmelina Marin is a family law attorney with experience in resolving international child custody cases.
The Convention on the Civil Aspects of International Child Abduction, executed at The Hague on October 25, 1980 (Hague Abduction Convention) and The International Child Abduction Remedies (ICARA) is an international treaty that establishes the legal rights and procedures for the prompt return of children who have been wrongfully removed or retained. In simple terms, the Hague Convention helps families revert back to their original or "status quo" child custody arrangement, prior to the unlawful removal of the children.
If your ex has taken your children out of the country against your will, the Hague Convention can help you get them back.
Most U.S. states have adopted the Uniform Child Abduction Prevention Act (UCAPA), which offers protections to parents who are concerned about the possibility of custody-related parental abduction. If you already have a child custody order in place, or you have a custody hearing coming up, you can file a petition under the UCAPA to address your specific concerns. This allows the judge to put limits on your ex's ability to leave the country with your kids in tow.
What does Petitioner have to prove?
To prove a wrongful removal or retention of a child the non-traveling must show:
(1) the habitual residence of the child immediately before the date of the allegedly wrongful removal or retention was in the country to which return is sought;
(2) the removal or retention breached the petitioner's custody rights under the law of the child's habitual residence;
(3) the petitioner was actually exercising or would have been exercising custody rights of the child at the time of the child’s removal or retention; and
(4) the child has not reached age 16
What are the defenses of the non-traveling parent?
(1) The Non-Traveling Parent Was Not Exercising Custody Right
(2) The Non-Traveling Parent Consented to or Acquiesced to the Move
(3) The Child of Sufficient Age and Maturity Objects to Being Returned
(4) The Child is Well-Settled in the New Environment
(5) There is Grave Risk of Physical or Psychological Harm if the Child is Returned
(6) Fundamental Principles Regarding the Protection of Human Rights and Fundamental Freedoms Do Not Permit Return of the Child
At The Marin Law Firm, attorney Carmelina Marin and her team have the experience and knowledge to provide evaluation, analysis, strategy to support or defeat claims of wrongful removal or retention.
Contact us at 407-449-7804 to schedule a consultation and evaluation.