George Mason University Antonin Scalia Law School


By Fall 2016 M-VETS Student-Advisor Scott Schenking

For many divorced active duty service members, veterans working for the federal government or current federal government employees, the reality that they will move overseas for work is ever present. The result of this is often a request to your former spouse for approval for international visitation and cooperation in preparing the child for that travel.  Many of us have heard of or even personally experienced the challenges that occur when a former spouse refuses to allow international visitation.

There are many articles and laws that address the custodial parent’s right to prevent international travel but there are few resources or laws that support the non-custodial travelling parent. For this group of soon to be ex-pats, international and United States law is not in their favor.  Current laws regarding international travel and movement of children are squarely designed to protect children from parental kidnapping.  In this article, I will discuss the current laws and the protections they provide, their impact on the travelling parent and measures that can be taken to increase your chances of gaining international visitation.

I. International and National Laws for the Prevention of Parental Kidnapping.

The International Child Abduction Remedies Act implements the Hague Convention on Parental Kidnapping in the United States. The Supreme Court has ruled that,  “the Convention’s central operating feature is the return remedy.”[1]  United States’ courts have elaborated that ICARA is designed solely to return a child to his or her habitual place of residence without debating any of the underlying reasons for the child custody order. “[A]ny debate on the merits of the question, i.e. of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal [or retention]….”[2]

A parent wrongfully removes or retains a child under the Hague Convention “when he or she removes or retains the child outside of the child’s country of habitual residence” and the removal or retention breaches the custody rights of the non-removing parent under the laws of that country.[3] Furthermore, the non-removing or non-retaining parent must have been exercising those custody rights at the time of removal. [4]

In order to prove a case of parental kidnapping the complaining parent must establish three elements by a preponderance of the evidence. [5]“First, the petitioner must show that the respondent … retained the child somewhere other than the child’s habitual residence.”[6] Second, if petitioner is successful in proving the threshold element, then the “question becomes whether the … retention violated the petitioner’s ‘rights of custody’ under the habitual-residence nation’s laws.”[7] And third, if petitioner has rights of custody under the habitual-residence nation’s laws, then petitioner need only make a final showing that “at the time of … retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the … retention.”[8]

If a court deems that there has been a wrongful removal or retention of a child under the age of sixteen, and the petition was brought within a year of the wrongful removal or retention, the country in which the child is located must “order the return of the child forthwith,” unless the respondent is able to raise an affirmative defense.[9]  A respondent may assert four possible defenses under the Convention: (1) that there is a grave risk that the return of the child would expose him to physical or psychological harm or otherwise place her in an intolerable situation; (2) that the return of the child would not be permitted by fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms; (3) the proceeding commenced more than one year after the removal and the child has become well settled in the new environment; and (4) the petitioner was not actually exercising custody rights at the time of the removal or retention, or had consented to the removal or retention.[10]  Most of these defenses will not apply to cases of international visitation because it is the intention of the parent to return the child.

The Supreme Court has held that a parent’s ne exeat right (the right to prevent a child’s exit from her country) qualifies as right of a custody under the Hague Convention.[11] In Abbott, the father and mother separated and a Chilean court awarded visitation rights to the father.[12] The Court found that while visitation rights or “rights of access” alone did not amount to a ne exeat right, where the law of the country of residence explicitly requires a parent to give consent before removing the child, a custodial right exists.[13] Thus, absent an explicit award of custody, the Court consulted the law of the country of residence to determine whether a parent had a ne exeat right.[14] For most cases involving a custodial parent living in the United States and a non-custodial parent living abroad the U.S. parent has a ne exeat right and can prevent the departure of the child.

So what does all of this mean for the parent seeking consistent and uninterrupted visitation abroad? To prevent visitation overseas a parent will likely use the model of the Hague Convention and ICARA as a starting point to demonstrate to the court that a risk of parental kidnapping exists.  Most state courts have developed a risk assessment model for assessing the risk of parental kidnapping under the Hague Convention and these general risk factors are what should be defeated in advance.[15] Some of the risk factors for parental kidnapping include:  past threats to kidnap, new threats to kidnap, an overseas relocation, lack of settlement in the United States, dissatisfaction with the U.S., strong overseas connections and a disdain for the U.S. justice system.[16]

II. Negotiating In Advance.

The easiest and most reliable method of reducing the risk of an interruption to visitation is to fully integrate visitation into a settlement agreement that is incorporated into a final divorce decree and custody order. If you have a cooperative spouse who readily acknowledges your need to move overseas for work then you may be able to integrate specific factors into the settlement agreement.  You will need to be careful as specific statements can become limitations on you and the wording of these factors should be discussed with your attorney.

Consider the following in your settlement agreement:

  1. Both parties acknowledge that international visitation is a norm and should be fully supported by both parties without limitation.
  2. Your spouse should agree to fully support preparation for international travel to include updating passports, transportation to medical exams and any further administrative requirements that your employer or new country may require,
  3. Consider who should pay for portions of this travel. Many settlement agreements place the financial burden of visitation on the non-custodial spouse. This could become incredibly expensive when you consider transportation to and from the airport and all airfares as well as an escort for the child.  Attempt to negotiate a division of airfare and escort fare.  Failing this at least negotiate transportation to and from the airport on the custodial side.
  4. Consider a provision for how to handle emergency situations so that you do not fall outside of your agreements when something happens beyond your control. Remember the Icelandic volcano that disrupted air travel out of Europe for weeks. Ensure your agreement has a means of arriving at reasonable solutions to these problems so that the custodial parent cannot later claim that you were preventing access.
  5. Finally, attempt to normalize you and your former spouses’ views on international travel. Which countries are acceptable? What method will be used to determine when a country is no longer acceptable?  At what age can a child travel alone?  At what age can a child travel with only airline escort?  But remember, each of these details are also a restriction on you as well as on your former spouse and the benefits and risks of each should be discussed with your attorney.

Incorporation of these many details could drastically reduce the likelihood of a custodial spouse preventing or disrupting international visitations. However, it is rare that a former spouse will be so willing to negotiate so many details.  In many cases, no negotiation may occur at all and a court order may not address international visitation.  This leaves the burden on the non-custodial parent to fight for a visitation on a case-by-case basis.  In this situation there are several key points to consider increasing your chances of gaining approval for international visitation.

III. Preparing for Court Arguments.

1. Never prevent parental access or act as if you could. An Arizona court ruled that, although both parents were equally capable of adequately and properly caring for the child, and a relationship with both parents was in the child’s best interest, sole legal and physical custody should be given to the father because, weighing the parents’ respective risks of traveling internationally to deny the other parent’s access to the child, it could more effectively prevent the father, a United States citizen, from taking the child out of the country than the mother, a Mexican citizen who had previously taken the child to Mexico.[17] Preventing parental access could also include being late on return from visitations, preventing communication during visitation, unilaterally extending visitation or cutting visitation off short.[18] The key here is to demonstrate a consistent ability to uphold and operate within the court’s child custody order.[19] The court will weigh having a prior history of international travel with the child demonstrating return of the child within agreed parameters.

2. Research your new country’s participation in the Hague Convention. If your new country is not a signatory to the Hague Convention that will certainly be seen as an increased risk but it is not determinative as many courts review the complete risk assessment.[20][21]However, other countries that are signatories such as Germany have shown some reluctance to return children to the United States. You will want to know this in advance and prepare counter-arguments for the court.

3. Never threaten to keep your children abroad. This could include testimony from your child that you have threatened to retain them in another country.[22] Of course, it can be shown from your own statements[23] or by threatening litigation in another country.[24]

4. Be prepared to respond to your new country’s general threat level. In V.U. v. F.U.U., a Delaware court ruled that a Nigerian father could not take his children for a three-week visit to their paternal and maternal grandparents in Nigeria because the U.S. Department of State had issued a travel warning regarding possible dangers of travel in Nigeria for U.S. citizens and had warned that some areas of the country should be avoided because of the very high risk of kidnapping, robbery, and other armed attacks.[25] In these cases, you may need to consider visitation in a third country that has an acceptable threat level.

5. Be prepared to show that you are well settled in the United States community. This can be done with such evidence as:[26]

a. Solid employment history;

b. Ownership of real estate;

c. Other U.S.-based assets;

d. Acquisition of U.S. citizenship;

e. Other family members in U.S.;

f. Circle of friends;

g. Participation in local organizations; and

h. No prior history of violation of the law.

6. Along with establishing settlement in the United States it would also be useful to establish that any previous connections to a country of origin or the visiting country have been reduced over time, through death of family members, change of employment, etc.[27]

7. Finally, if these measures fail to arrive at cooperation with your former spouse or a favorable court order then consider confidence building measures such as registering a foreign court order or posting a bond. These measures are typically very costly to you because you are paying for foreign attorney’s fees or the interests or loss of the use of your money on a bond. For these reasons they should not be taken lightly but they can be effective. In Charpie v. Charpie, an appeal court in New York held that the father, a Swiss national, could be required to deposit $100,000 in escrow as a condition to taking his children on vacation in Switzerland during contested child custody proceedings.[28]

These considerations can be used to shape your transition abroad so that you are not left with constant litigation over every visitation. If you are planning on moving overseas then find an attorney that has international family law experience and discuss these points with your attorney. While I have pointed to many areas where negotiating specific points could benefit a smooth transition this must carefully be balanced against all of your interests and that is something you will need to work through with a well qualified attorney.

[1] Abbott v. Abbott, 560 U.S. 1, 130 S.Ct. 1983, 1989, 176 L.Ed.2d 789 (2010).

[2] England v. England, 234 F.3d 268, 271 (5th Cir.2000) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996)).

[3] Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 343 (5th Cir.2004); Convention, art. 3(a).

[4] Sealed Appellant, 394 F.3d at 343; Convention, art. 3(b).

[5] Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir.2012).

[6] Larbie, 690 F.3d at 307.

[7] Id. (citations omitted).

[8] Id. (quoting Convention art. 3(b)).

[9] Hague Convention art. 12.

[10] Radu v. Toader, 805 F.Supp.2d 1 (2011); See Poliero, 2009 WL 2947193, at *9–10 (citing 42 U.S.C. § 11603(e)(2)(A)-(B)).

[11] See 130 S.Ct. at 1990.

[12] Id. at 1988.

[13] Abbott, 130 S.Ct. at 1999.

[14] Id. at 1985.

[15] Katare v. Katare, 175 Wash. 2d 23, 283 P.3d 546 (2012).

[16] International Family Law Practice §11:6.

[17] Sutton v. Flores, 2010 WL 2006243 (Ariz. Ct. App. Div. 2 2010).

[18] See Sahibzada v. Sahibzada, 294 Ga. 783, 757 S.E.2d 51 (2014) (visitation denied in part because non-custodial father failed to maintain communication and often could not report his location.)

[19] In re Marriage of Hatzievgenakis, 434 N.W.2d 914 (Iowa Ct. App. 1988). “Unreasonable” restrictions on out-of-country visitation by a Greek citizen with his son were not justified where the mother’s fears that her son would not be returned from Greece were not supported by any evidence. “The child is a citizen of two countries and has a right to be introduced and exposed to both. The child has a grandmother, an aunt and uncle and cousins he will not know unless he travels to Greece.”

[20] See Pirayesh v. Pirayesh, 359 S.C. 284, 596 S.E.2d 505 (Ct. App. 2004).

[21] In re Rix, 161 N.H. 544, 20 A.3d 326 (2011).  A visit to India would be permitted even though that country was not a party to the Hague Convention when the taking parent had substantial ties to the United States, had lived here for 20 years and had taken the child to India—and then returned the child from India—on three previous occasions.

[22] Bergstrom v. Bergstrom, 320 N.W.2d 119 (N.D. 1982).

[23] Shady v. Shady, 858 N.E.2d 128 (Ind. Ct. App. 2006).

[24] Charpie v. Charpie, 300 A.D.2d 143, 752 N.Y.S.2d 291 (1st Dep’t 2002).

[25] V.U. v. F.U.U., 2008 WL 2898335 (Del. Fam. Ct. 2008).

[26] International Family Law Practice § 11:11 (2).

[27] International Family Law Practice § 11:11 (4).

[28] Charpie v. Charpie, 300 A.D.2d 143, 752 N.Y.S.2d 291 (1st Dep’t 2002).