Q&A: My ex kidnapped our child. Can I get her back?

More and more, divorce in New York involves parties from international jurisdictions. It can be quite messy, sometimes, especially if there are children who are literally being pulled across divergent nations.

It is easy to obtain a divorce if your spouse leaves the country (abandonment) but not so easy to get your children back if they take the children without your consent to a country that does not recognize the Hague Convention (that is to say the country is not a signatory to the Hague). Essentially, when one parent takes a child to another country (or jurisdiction) without the consent of the other parent, its called kidnapping.

Child kidnapping of American born children is becoming more common as divorcing parents seek to evade the custody laws in the U.S. When that happens, it can be a grave problem since, once the child is out of the jurisdiction of, say, New York for six months or more, the courts could lose authority/juridiction over the child and when the foreign country becomes the child’s habitual residence, that foreign jurisdiction could decide to assert jurisdiction over the child and determine what will happen to the child. What happens to the child could include an order that says the child should remain in the foreign country.

Not every country exercises comity with the United States or with the state of New York. Some of these countries do not even define taking of a child without both parents’ consent as “kidnapping.” These countries are not obligated to enforce custody orders from U.S. courts. Thus any edict pertaining to custody of the child will come from that country/jurisdiction and not New York.

However, if the country where the parent takes the child recognizes the Hague Convention, and if the left behind parent acts quickly to make a Hague Convention application for return of the child, and institute a Hague law suit there is a good chance the child will be returned to New York. That parent would likely have to bring a habeas corpus action (a writ basically demanding the children be produced in Court) in the foreign jurisdiction, retain counsel in the foreign jurisdiction and hope that he or she is able to persuade the foreign jurisdiction to return the child to his or her custody.

Some of these jurisdictions are pro-mothers. So that if the child is under, say, the age of ten, they are likely to award the mother custody (especially if she is the “kidnapper”) since they believe that the mother is the more fit parent for young children. Others, such as countries in the Arab region, are pro-fathers.

Note that if the country does not recognize the Hague Convention, then the country where the child is taken has no obligation to recognize any custody orders from the “habitual home state” or to return the child to New York (or which ever state the child resides.)

By contrast, if the parent takes the child to another State in the Union, the problem is more manageable since there are laws in the U.S. against kidnapping and “home state shopping.” The Parental Kidnapping Prevention Act mandates that state authorities give full faith and credit to other States’ custody determinations, so long as those determinations were made in conformity with the provisions of the Parental Kidnapping Prevention Act. In other words, even if a child is taken to another state and resides for the requisite six months, that new state is not automatically the “home state.” There will be a hearing to determine if kidnapping was involved-and if it was the new state would decline jurisdiction.

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Last updated March 2017

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