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International Child Abduction, Part II

Posted by: In: Newsletter Archive 30 Sep 2016 Comments: 0

BY: PHILLIP E. MILLER

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

         There are two ways to have a child returned to the proper jurisdiction.  The first of which is through a Hague Petition that was covered in the last news article.  The second way is by filing a registration of the foreign order with the court where the child was removed to.  This is only possible if there is a foreign order that is still in place, and the foreign court has continuing jurisdiction.  If there is a foreign custody order,  registering that order with the jurisdiction that the child was removed is most likely a better option than a Hague Petition.

As mentioned in the last article the Hague Petition has several exceptions.  Those exceptions give the abducting parent (“Respondent”) an opportunity to prove those exceptions during a hearing and retain the child in the abducted to country.  However, a foreign registration case has very limited to exceptions.  The Respondent can only object as outlined in Utah Code 78B-13-305 below.

A person seeking to contest the validity of a registered order shall request a hearing within 20 days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:

(a) the issuing court did not have jurisdiction under Part 2, Jurisdiction;

 

(b) the child custody determination sought to be registered has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Part 2, Jurisdiction; or

 

(c) the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of Section 78B-13-108 in the proceedings before the court that issued the order for which registration is sought.

 

If the party does not prove these much narrower exceptions the foreign order will be registered.  A registered order can then be enforced.  Often when the order is enforced it returns custody of the child to the Petitioner.  Not only is there a shortened statutory time period for registration, there is also usually no need for an evidentiary hearing. Because of this pleadings can be submitted to the court without the need for extensive discovery.  Cost thereby can be greatly reduced for the Petitioner who is litigating in a foreign country.  Since the Petitioner is in a foreign country and unable to work, if the Respondent can run them out of money, they can win by attrition.  Foreign Registration greatly reduces the Respondents ability to succeed in this way.

If there is a custody order from a foreign court, registration has many attractive features, as outlined above,  and makes it a better option in many cases than a Hague Petition.  It is a route that should definitely be considered.  If you have any questions regarding return of a child to or from a foreign jurisdiction do not hesitate to contact our office.

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