“Away Custody”: Moving Out-of-State or Abroad

Posted by Steven D. Eversole | Jan 16, 2014 | 0 Comments

In an increasingly connected and globalized world, child custody cases can become more complicated and may span across state lines states or even abroad. For many parents, divorce and the reality of new custody arrangements are just the tip of the iceberg in any settlement or dispute resolution. For parents in the United States, disputes may arise where the primary custodian is able to reside or move. In more complex cases, one parent may want to take a child out of the country. These cases open up a number of legal issues and in some cases lead to child abduction, or the act of taking a child out of the state or country without court approval. Our Birmingham child custody attorneys are prepared to protect your rights, whether you are seeking to prevent a parent from moving away or if you are relocating with a child.

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In the event that one parent unlawfully takes a child out of the country, there are number of avenues for relief, but getting a child returned can be a challenge. These cases raise issues of state custody and family as well as international treaties and conventions.  InHollis v. O'Driscoll, a father petitioned for the return of his daughter from New York to New Zealand under the Hague Convention of the Civil Aspects of International Child Abduction. The court held that New Zealand as the daughter's habitual residence immediately prior to her removal, that the father had some custody rights and that he did not consent to the mother taking the daughter to New York indefinitely. The question for the court was whether the mother was liable for court costs to pursue this action.

One issue in these cases is jurisdiction—where should the case be brought and what court has the authority to hear these cases. Generally, the Hague Convention is an international agreement that is binding for citizens of the member countries. According to the U.S. Department of State “child snatching” is an epidemic. While many parents will take a child as a result of an unfavorable custody order, over 70% of the child abductions will take place before a custody issue has even gone to court. To resolve these cases, parents will usually have to bring a case under the Hague Convention.

Parental kidnapping is the abduction or concealment of a child without the consent of the other parent. With over 60% of children spending time in a single-parent home, there are hundreds of thousands of instances of parents seeking to move-away with or without another parents' consent. Every year, there are 350,000 cases of child abduction reported. In tens of thousands of these cases, U.S. children have been taken to foreign countries when one parent of U.S. citizenship and another parent of different nationality split.

With more Americans traveling and working abroad, there is a rise in marriages and divorces between bi-national couples. By nature, some of these cases will raise cultural, ethnic, religious and legal differences between countries. Abductions can be facilitated even more easily for children who carry multiple passports. When a non-custodial parent resorts to kidnapping, he or she may genuinely believe they are acting in the best interests of the child. Unfortunately, there are a host of other self-motivations that may drive a parent to abduct a child without consent.

In general, when parents have split or divided custody, court permission must be sought and approved to move a child out of the state or out of the country. Parents seeking to move with their child must get approval from a non-custodial parent or demonstrate to the court that the move is in the best interests of the child. A parent who is looking to stop a custodial parent from moving out of state or out of the country must also take legal action.

If you are seeking a divorce in Birmingham, contact Family Law Attorney Steven Eversole at (866) 831-5292.

About the Author

Steven D. Eversole

J.D., Samford University's Cumberland School of Law, Birmingham, Alabama B.A., University of Alabama, Tuscaloosa, Alabama

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