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December 03, 2020

Custody Orders Across State-Lines/Overseas

I am stationed overseas. Can I file for custody here?

You can usually ask the courts in the country where you or your spouse is stationed to grant you custody of your children living in that country. “Habitual residence” and physical presence of the child within the court’s area are very important. Note however that some nations will not hear a custody case unless at least one of the parents is a citizen of that nation.

Will my custody order from a court overseas have effect back in the United States?

Likely yes. In many states, a foreign court order for custody will be honored as if it were a court order of that state or of a sister state. See the question about the Uniform Child Custody Jurisdiction and Enforcement Act for more information on how states handle these issues.

What about internationally? My ex-wife is Polish and I am afraid she will take our kids to Poland. I have custody of them. Will my American custody order work over there?

Don’t panic, but don’t delay; the law protects you, but you must move quickly. An international treaty called the Hague Convention on the Civil Aspects of International Child Abduction will be your primary tool. The Convention provides for the immediate return of children internationally abducted from one parent, usually by the other parent. It applies in nearly all of Europe and other westernized countries, and a few countries in Africa, South America, and the pro-Western margins of the Middle East.

The treaty does not spell out which parent should get custody, but rather deals with sending children back to where they come from.

Your children will be returned to the United States if

  • they are under 16 and lived in a country that was a member of the Convention;
  • someone removed them or kept them outside of that country;
  • that action violated your rights (meaning that you had a legal right to custody or, in some cases, visitation or legal custody);
  • your children are now in a country that is a member of the Convention.

A quick note about being able to show that your child “lived” in the United States: a U.S. military base abroad is not territory and living there creates foreign, not U.S., residence.

Under the Convention, you usually have to make a claim within one year of the removal or wrongful retention. If you don’t, when the judge looks at your case, he or she can begin to look at how well your children are adjusting to their new environments and make decisions more like a traditional custody hearing.

If you think you have a Hague case, you will need (with the help of an attorney) to file a “Hague Convention Application” with your country’s Hague “Central Authority.” The central authority will then send an application to the central authority in the country where your child is and the authority there will help you find a local attorney to deal with courts in that country.

In the United States, the central authority for children taken from the United States is the U.S. State Department Office of Children’s Issues and for children taken to the United States, it is the International Division of the National Center for Missing and Exploited Children.

Can I find out if my wife got a passport for our children?

Yes. The State Department has set up a Children’s Passport Issuance Alert Program (CPIAP) as a lookout system; it is not a tracking system necessarily, but it does provide information to a parent or court about when a passport application is submitted on behalf of a child.

The CPIAP works in two ways. If the State Department has on file a court order that prohibits travel outside the United States, grants custody to the parent who isn’t applying for a passport, or grants joint custody to both parents, then it will deny a passport request submitted on behalf of your children. If the State Department has on file a written request for information for a parent, guardian, or court, then the Department will notify the parent, guardian, or court if a passport application has been submitted for a child. The system remains in effect until that child turns 18 or a written request is made to end it.

In order to register your child with the system, you must file a written request with the State Department. The form can be downloaded on the Department’s website.

What if my child has dual citizenship?

Sometimes an American child acquires citizenship in a second country. This often occurs when one of his or her parents is a “foreign national” (not a citizen). It is important to remember this in the passport application process. Simply because a child can’t get a passport does not mean that he or she cannot travel abroad on another nation’s passport. If your child has another nationality, be sure to contact that country’s embassy or consulate to ask about procedures for denial of a passport for that country.

Can I prevent my spouse from leaving the country with our children? They have had passports for a while so I don’t think the alert system will help.

There are things you can and should do to reduce the risk of abduction or retention. If there is a substantial risk your child’s other parent will remove your child, you should get a court order or an agreement on custody that prohibits international travel without your consent or court approval.

My ex-spouse has custody of our kids and he says he is going to take them overseas with him on his next assignment. Can he do that?

Unless state law or a judge says no, he can. A parent with legal custody can usually take a child with him wherever he goes to live in the absence of a court order or law prohibiting this. You, on the other hand, can file a motion asking a court to restrict your children’s travel, to change custody, or to give you overseas visitation.