International Parental Child Abduction: The Perils of Fighting for Custody in Foreign Courts
10.4.2024
Recent New York immigration statistics suggest that over 37% of children residing in New York State have one or more foreign-born parents.[1] Data also suggests that most New York immigrants are from non-Hague signatory countries (i.e., countries that are not the signatories to the Hague Convention on the Civil Aspects of International Child Abduction).[2] This can create challenges for lawyers advising clients who are fighting for custody of children with foreign-born parents.
U.S. family lawyers commonly understand that when determining whether a U.S. family court has child custody jurisdiction in a matter, factors such as the children’s (or their parents’) nationality, gender, religion or immigration status are not relevant. In other words, if the child meets the residency requirement of a state, the concerned family court in that state has the child custody jurisdiction, irrespective of anything else.
Our international clients are often very relieved to learn that they have the option to file for child custody before a U.S. court, irrespective of the above-mentioned factors. But this information might give the client a false sense of security. The significant flip side of this situation is that while a client’s or his or her child’s immigration status, religion, gender or nationality may not be so relevant in the eyes of a U.S. court, it might just be relevant from the point of view of the other country concerned. In a place as diverse as New York, we can’t really afford to overlook the very real possibility that foreign courts may not rule in favor of parents fighting to get their children back after an international parent child abduction.
Gender-Based Preferential Custody Rights Versus a New York State Custody Order
A recent case illustrates the difficulties of pursuing custody in the case of international parental abduction. A mother (an Indian citizen) who held permanent resident status in the U.S. and had been living in New York for several years initiated divorce and custody proceedings in New York against her American citizen husband (of Indian origin). She then abducted her 9-year-old autistic daughter to India while the custody proceedings were well underway in New York. Although she had made domestic violence allegations against the father in New York, such allegations were found to be untrue by the concerned authorities. Once in India, the mother filed for divorce almost instantly.[3]
The New York court noted as follows:
“It is hard to imagine a more egregious, terrifying and shocking action than the sudden abduction of a child […] during the midst of an ongoing custody and divorce proceeding in New York. Plaintiff mother’s purposeful and intentional acts in this regard may have permanently severed the relationship between Defendant father and his daughter causing lifelong psychological and emotional harm to both of them. […] Plaintiff’s extreme course of action may have permanently limited and seriously harmed the child’s life and her future prospects in all regards.”[4]
The New York court thus granted sole legal and physical custody of the child to the father. The father then petitioned the concerned Indian High Court for the immediate return of his child. However, despite the mother’s conduct, the High Court denied the father’s petition while noting that “the custody of a female minor with her biological mother cannot be said to be unlawful.”[5] The Indian court further directed the father to appear before the concerned Indian family court.[6] He then appealed before the Indian Supreme Court, where his petition was dismissed once again.[7] No custody trial has taken place so far before the designated family court in India, and when it does, the father will likely only be granted supervised minimal visitation (in India) and will still face the Indian appellate system (which will likely take several years) before a final order is issued.
This is merely one example of how a parent’s or a child’s gender can play a significant role in another country, and where a U.S. custody order favoring the left-behind parent had no bearing at all.
Not Every Country Recognizes the Concept of ‘Joint Custody’
Another significant challenge in international child custody cases is that joint legal custody is not the norm in all countries. Countries such as Algeria,[8] the Philippines,[9] Japan (until now) and Turkey[10] only allow sole custody (typically to the mother) upon a divorce, which, the left-behind parents say, encourages international parental abduction because it provides the abducting parent with an incentive to abduct the child to such a country where they can legally be free from the control and the interference of the other parent. Other than gendered domestic violence issues, the main reasons for awarding sole custody to the mothers are due to the preferential custody rights of a mother in certain cultures or in order to give the mother the ability to move on with her life without any interference from the child’s father. In the Philippines, custody automatically rests with the mother if the parents are not married.[11]
As recently as May 18, under significant international pressure, Japan revised its Civil Code to allow divorced parents the option of joint child custody for the first time in almost 80 years.[12] This revision will come into effect in 2026. Under the current Japanese law, child custody is granted to only one divorced parent, almost always the mother, to shelter the mother from any potential domestic violence. Even under the revised law, if there are concerns about domestic violence against mother and/or children, the parties will not have the option for joint custody. Greece is another example, which has, after significant pressure from divorced fathers, only recently allowed for the provision of joint custody upon divorce.[13] However, domestic violence concerns remain at the center of the debate around this law.
Gendered Domestic Violence
Parents who are victims of domestic violence and feel unprotected by the legal system may well wish to remove their child to a safer place and, consequently, some end up abducting their child.[14] The Child Crime Prevention and Safety Center estimates that “two-thirds of all instances of international child abduction involve mothers who were the victims of domestic violence.”[15] Whether the country is a relatively new Hague signatory like Japan or a non-Hague country like India, suffice it to say that if an abduction takes place due to domestic violence, the foreign courts will generally not order the return of the child to the U.S.
In a Hague case, most domestic violence cases fall under Article 13(b) of the Convention, i.e., the defense of grave risk of harm. It is a somewhat narrow defense that requires the abducting, or taking, parent to meet a higher burden of proof to successfully assert it. Critics often argue that the vague language of this defense significantly limits its scope to cases where the abuse is directed toward the child. Scholars around the world encourage Hague judges to interpret this defense to treat acts of violence against one parent (or family member) as an act of abuse against the child.
In a non-Hague country, the chances of a child being returned to his or her home country are lower when there are allegations of domestic violence made by the mother. In India, for instance, the emergency return petition (the writ of habeas corpus) will be subject to the standard of best interest of the child, and the allegations of domestic violence will most definitely weigh against the left-behind parent. The courts will be extremely reluctant to order the return of the child if the taking mother or her child would be subjected to domestic violence upon their return. In the instances of alleged domestic abuse, if the left-behind father argues that the taking mother could have reported such abuse to the U.S. authorities, thus suggesting that there were options available to her that she could have pursued instead of simply abducting the child, this argument usually doesn’t have any impact on the foreign court’s custody determination. Mainly because the mother then alleges a lack of financial resources in the U.S., her “dependent” immigration status, an unsympathetic court system or issues like language barriers.
Domestic violence is not the only reason a parent would abduct a child. Other (often overlooked) reasons include separation or divorce, forum shopping, financial insecurities, disagreement with a court decision about custody, a desire to control or seek revenge against the other parent, disregard for authority, mental illness or paranoia about the other parent.[16] The reasons (other than domestic violence) for child abduction do not change the potential outcome of the case in non-Hague countries. In other words, the child will still most likely not be ordered to return, primarily because courts in such countries have the authority to conduct a de novo child custody determination based on the best interest of the child, which may take years. By then, the child is sufficiently at home in the foreign country, and the foreign courts are thus not inclined to order the return of the child. On the other hand, if the country is a Hague signatory and has a good record of returning abducted children (e.g.. Australia, England, New Zealand, Canada, etc.), the child will likely be ordered to return to the U.S. for a custody determination by the U.S. courts.
Gender Preference Under the Personal Laws of the Parties
In many non-Hague countries, family law is based on the personal law of the parties involved, and it often gives fathers preference as legal guardians, while mothers are usually limited to a caretaker role until the children reach a certain age. In some cases, fathers may even be granted physical custody of the children simply because the mother belongs to a different religion or is judged to have an “immoral character” based on completely outdated and patronizing gendered cultural norms, such as associating with men outside her own immediate family, dressing “immodestly,” partying, etc. Although U.S. courts find such decisions to be “repugnant to U.S. public policy,” they are still rendered in some countries. In 2022, in a matter where the children were brought from the United Arab Emirates to Connecticut by their mother, a Connecticut court declined to enforce a court order from that country awarding custody of two children to their father on the grounds that the children and the father are Muslim while the mother is Christian.[17]
Prevention Is Literally the Best Cure
How might a parent who has a child with a foreign-born immigrant prevent a child abduction? As reported by the U.S. State Department, the best way to handle a potential international parental child abduction situation is to act fast and prevent it from happening. The State Department encourages parents to enroll their children in the Children’s Passport Issuance Alert Program. If a passport issuance application is submitted for a child who is enrolled in the program, the authorities can ensure that the parental consent requirement has been met and/or alert the enrolling parent if a passport application is submitted on behalf of their child by someone else. However, this tool is only effective when the child does not already have an American passport at the time of the abduction. Also, it is very likely that the child holds passports from more than one country. Sometimes, a passport is not required to leave the country. For instance, children under 16 only are required to produce a U.S. birth certificate to travel to Canada. Also, a passport may not be required if a parent travels by road into Canada or Mexico or through private means into another country.
The State Department’s Prevent Abduction Program allows a parent to place a child’s name on the list of children restricted from being removed from the United States if she or he presents an order from a U.S. court of competent jurisdiction prohibiting the child’s removal. However, the U.S. does not have any exit controls, and the only way to monitor such a movement is through commercial air departure. Thus, these tools will be rendered ineffective if the child exits the country through other means.
Obtaining a mirror order from the courts in the concerned country or asking the taking parent to post a substantial bond might also be helpful steps in deterring a parent from wrongfully removing or retaining one’s child in a foreign country, but such steps do not provide any guarantee of success.
Questions To Ask in an International Child Custody Dispute
In an international child custody dispute, some of the questions that a New York family lawyer must ask before advising an international client are:
- Which other country are the parties connected to? Are either of the parties still domiciled in that country? Were the parties married in that country? Was their child born in that country? Is the child significantly connected to that country?
- Like the U.S., is that country a signatory to the Hague Convention?
- Does that country’s legal system also consider international parental child abduction a serious crime? What is that country’s overall record of returning abducted children?
- Do the courts in that country have a specified “residency requirement” for adjudicating child custody disputes? Or can child custody jurisdiction be established overnight in such a country?
- Unlike the U.S., will the courts in that country apply the best-interest-of-the-child standard even in an emergency return proceeding?
- Unlike the U.S., do the courts in that country still apply the “tender-years” doctrine, which favors the mothers?
- Do the courts and country look more favorably on a parent if the parent is male or female? Are the parties governed by the personal religious law of another country?
- Does that country also recognize the concept of “joint legal custody”?
- Does that country honor a foreign custody order? Is there a system in place to enforce or register a foreign custody order? Will a New York custody/return order be sufficient to secure the child’s return from that country?
- Do the courts in that country issue mirror orders (orders that “mirror” the terms of a New York custody order)?
- Will the courts in that country recognize “the continuing and exclusive jurisdiction” of a New York court?
- Will the foreign courts give the left-behind parent any additional substantive rights other than initiating and fighting a plenary custody case in that country?
- Should your client allow the other parent to travel with the child to a country where the other parent will be favored because of their gender, religion or nationality?
- Is that country likely to issue a quick blanket travel ban once the child is present there?
- Is the foreign country’s court system plagued by judicial delays?
Such timely questions will certainly help a New York attorney thwart the other side’s “forum shopping” attempts in an international child custody dispute.
Stutee Nag is a dual-qualified attorney licensed to practice law in New York State and India. She practices international family law in New York, has appeared as an expert on international family law issues before the U.S. courts and has researched and written extensively on international family law issues concerning India and the United States. She is a 2024-2025 fellow of NYSBA’s Family Law Section.
Endnotes
[1] State Immigration Data Profiles, Migration Pol’y Inst., May 29, 2023, www.migrationpolicy.org/data/state-profiles/state/demographics/NY#top.
[2] Immigrants in New York, American Immigration Council, Aug. 6, 2020, https://www.americanimmigrationcouncil.org/research/immigrants-in-new-york.
[3] Although she sought child support in India, she could not file for custody right away. This was presumably because it was too soon for her to prove that the child was “ordinarily resident” (the Indian equivalent term of the “home state”) in India. The fact that she was unable to immediately initiate a custody petition in India, even though India has no specified residency requirement, suggests that she perhaps did not have sufficient evidence to prove that the child was ordinarily resident in India, even from the eyes of an Indian court.
[4] S.C. v. R.N., 79 Misc. 3d 383 (Sup. Ct., N.Y. Co. 2023).
[5] Nathan v. State of Haryana, Punjab & Haryana High Court (Aug. 21, 2023) CRWP 1671 of 2023 (O&M) (India), https://indiankanoon.org/doc/171491290/.
[6] Id.
[7] Nathan v. State of Haryana, Supreme Court of India (Oct 16, 2023) Petition(s) for Special Leave to Appeal (Crl.) No(s). 13243/2023 (India), https://www.casemine.com/judgment/in/652e176d72480234280e04a5.
[8] Guidance Algerian Family Code, Foreign, Commonwealth and Development Office, UK Gov., July 25, 2024, https://www.gov.uk/government/publications/algerian-family-code/algerian-family-code#dissolution-of-marriage.
[9] Article 213 of the Family Code of the Philippines.
[10] Mert Yalçın, Melis Yokay, Child Relocation 2023, Turkey, Chambers and Partners, Sept. 12, 2023, https://practiceguides.chambers.com/practice-guides/child-relocation-2023/turkey/trends-and-developments/O14606.
[11] Article 176 of the Family Code of the Philippines.
[12] Japan Changes Law To Allow Joint Custody After Divorce, Japan Times, May 17, 2024, https://www.japantimes.co.jp/news/2024/05/17/japan/crime-legal/japan-revises-law-to-allow-joint-custody.
[13] Article 1510 of the Greek Civil Code; Ian Maxwell, Greek Law Now Allows Joint Custody, Shared Parenting Scotland, Feb. 14, 2022, https://www.sharedparenting.scot/greek-law-changed-to-allow-joint-custody/.
[14] Janet R. Johnston, Inger Sagatun-Edwards, Martha-Elin Blomquist, and Linda K. Girdner, Early Identification of Risk Factors for Parental Abduction, Juv. Just. Bull., (Mar. 2001), https://www.ojp.gov/pdffiles1/ojjdp/185026.pdf.
[15] International Family Abduction, Child Crime Prevention and Safety Center, Aug. 28, 2024, https://childsafety.losangelescriminallawyer.pro/family-abduction.html.
[16] Domestic Violence and the Fear of Parental Abduction, Canadian Centre for Child Protection Inc., 2019, https://missingkids.ca/pdfs/MK_DomesticViolenceParentalAbduction_en.pdf.
[17] Jeremy D. Morley, Connecticut Court Refuses To Enforce UAE Custody Order, Law Office of Jeremy D. Morley, Dec. 12, 2022, https://www.international-divorce.com/connecticut-court-refuses-to-enforce-uae-custody-order; Namani v. Watson, 2022 Conn. Super. LEXIS 2966 (Conn. Super. Ct., May 31, 2022).
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