BY: PHILLIP E. MILLER

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

      Custody issues are complicated.  However, they get even more complicated when more than one jurisdiction is involved.  That is the case when parents live in different states and even more so when they live in different countries.  When the parents live in different countries international treaties come into play, the most important of which is the Hague Convention.  Not only is the Hague Convention important but state custody laws as well as jurisdictional requirements are very important.

If a party has custody or the equivalent in a different country (“Petitioner”) and the other parent removes the child to the United States against the custody order (“Respondent”), in effect in the country of habitual residence of the child, the custodial parent can petition in state or federal court for the return of their child.  If the parent who is trying to have their child returned had custody, the taking was wrongful, and unless one of the exceptions/defenses do not apply theoretically the child will be returned to the country of habitual residence.

However there are several exceptions/defenses.  The first is that the Petitioner was not “actually exercising custody rights at the time of the removal or retention” under Article 13 of the Hague Convention.  The second, is that the Petitioner “had consented or acquiesced in the removal or retention under Article 13 of the Hague Convention.”  The third is if more than one year has passed from the time of wrongful removal or retention until the date of the commencement of judicial or administrative proceedings under Article 12 of the Hague Convention.  Fourth, the child is old enough to object to being returned to the country of habitual residence under Article 13.  Fifth, that there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” under Article 13(b) of the Hague Convention.  Lastly, that the return of the child would subject the child to “violation of basic human rights and fundamental freedoms” under article 13(b) of the Hague Convention.

Next, if the child is not returned under a Hague Convention Petition[1] the Petitioner may have state law claims.  Under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (“UUCCJEA), Part 3 is on the enforcement of child custody decisions from other states and foreign countries.  According to the act Utah would only have emergency jurisdiction that would only last until the Respondent could get an order altering custody from the “home” jurisdiction of the child, or in laymen’s terms the jurisdiction that entered the original custody decision.

When a child is taken against court orders it can be very traumatic for both the child and the parent left behind.  In a perfect world parents would amicably address their differences or at least do so through court intervention.  However sometimes people take the law into their own hands.  If you find yourself in that position please make an appointment with me and I will explain your options.

[1] A Hague Convention Petition is not necessarily the best place to start depending on the case.  A state law remedy might produce more efficient results.