Kemp Klein

Protecting Your Children During International Travel

With summer upon us, parents’ thoughts naturally turn to vacation plans and travel with their children. With everything going on in the world today, many cautious divorced parents wonder what – if anything – is in place to safeguard their children’s return from a foreign country after traveling with an ex-spouse on a vacation to visit foreign relatives. One such safeguard can be found in an international treaty.

The “Hague Convention on the Civil Aspects of International Child Abduction” (“Hague Convention”) has as one of its stated purposes “to protect children internationally from the harmful effects of their wrongful removal to or retention in any Contracting State.” It applies to children under the age of 16 who have been removed from their country of habitual residence by one parent without the other’s consent in breach of custody or access rights. It also applies to situations in which children have been wrongfully retained outside of their country without consent (even if consent were initially given for travel). The United States is one of 87 countries or “Contracting States” to this treaty, and provides assistance in removals or retentions both to and from the U.S.

Unlike other child-related laws, the Hague Convention does not determine which parent should have custody of a child. It determines instead which country has jurisdiction to decide this issue.

Acting with expedience is a key issue for many reasons in seeking return of a child to the U.S. While doing so certainly protects the best interests of the child, it is important to act quickly for another reason. The Hague Convention mandates that a parent act within one year of the wrongful removal or retention of the child in order to exercise the rights under the treaty.

It is important to note, however, that the Hague Convention is not a panacea for all situations in which minor children are wrongfully removed from or retained outside of the U.S. by a parent. Many countries have not yet adopted the treaty, and among countries that have done so, enforcement of it has been anything but uniform.

In the long run, the proverbial “ounce of prevention” may be the best strategy for parents concerned about international custody matters. As there is no single preventive measure for all cases, it is wise for divorcing parents to address the possibility of wrongful removal from or retention of minor children outside the U.S. during negotiations and to obtain a Judgment of Divorce with appropriate protective language, if applicable. For parents already divorced, consulting with an attorney regarding the possibility of obtaining a post-judgment order prior to the children’s international travel can afford much peace of mind.

For further information regarding these matters, please contact Ms. Stawski at 248 619 2590 or via email.