BY: LORIE FOWLKE
(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)
While handling the international custody case, I learned a great deal about the interplay between federal and state law. In general, custody and family law are considered state law issues. However, when dealing with international cases, the federal law, the federal treaty and ICARA are also involved, so it becomes rather complex. Frankly, I was hoping that the case would move forward with the appeal because there are only one or two other cases in the whole country that have addressed this issue. One was a Colorado case which fell under the same jurisdiction as our case (10th Circuit), so that was helpful. The judge concluded the same theory that had prevailed in our case: the Hague Convention determines which country has jurisdiction, and state law determines what happens after that.
It is important to obtain a very competent attorney when dealing with these types of cases. The U.S. Department of State has a website that lists the names of attorneys that are supposedly qualified to handle Hague Convention cases. However, choosing an attorney from this list does not necessarily guarantee that they will be an expert in the field, or that they will listen and be able to understand the client’s concerns. In fact, having been involved in a single Hague Convention case without any other qualifications is sufficient to receive an invitation to the list. In regards to the custody case referred to, I am unsure that there is anything the mother could have done differently aside from obtaining a different attorney to begin with; the attorney that she had was not incompetent, but carried a reputation for being uncooperative. Furthermore, our client said that she wouldn’t listen to her defenses for many of the claims. Language is always a problem. Our client did not speak English, so it is important to have an attorney that is both willing and able to understand the client’s concerns.
WHAT CAN SOMEONE DO IF A CHILD HAS BEEN TAKEN OUT OF THE UNITED STATES?
If a child has been taken out of the United States, it is important to pursue the situation as quickly as possible. If a parent fails to take action within one year from the day the child was taken, then an argument can be made that the child is well-settled in the other country. Then, the parent would have to hire a competent attorney in that country in order to continue pursuing the case. Frankly, I believe that the Hague Convention is better understood by more attorneys in foreign countries than it is in the United States. It is important to get an attorney that really knows what they are doing, because this is a very complex area of the law, the parties must move quickly, and thorough documentation of all evidence must be maintained. The parties must be committed and prepared for a long fight, and should work with the state department. I was involved in another case dealing with a similar yet reversed situation: our client was living in the United States, and his Brazilian wife took their child to Brazil. The father has been trying to regain custody of the child for four years, and to this day remains unsuccessful. If a person is dealing with this problem, they should check with the state department on that country’s record of compliance. Brazil has a lower rate of compliance than some of the other countries- not necessarily because they are unwilling to comply, but because their court systems are backed up, causing everything to take longer. It is definitely not a fight for the weak of heart; it will take money and time, so it is important to have an attorney that really knows what they are doing.
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