Will a judge grant custody to a parent whose intention is to raise them in another country?

Question:

My wife and I are getting divorced. She wants to move the children out of country to South America where she is originally from. We both are U.S. citizens along with our children.

Will a judge grant custody of a child to a parent whose intention is to raise them in another country against my wishes? Are visitation rights recognized in other countries?

 

Answer:

In general, during a divorce, most states prohibit a parent from relocating to another country with the children without an agreement of the other parent or by court order.  However, until a divorce action is started, there are no orders prohibiting her from relocating.  I do not practice in Virginia, so I can only speak in generalities based on my experience.

In most states, when one party files for divorce, the filing imposes rules and standard orders that govern during the pendency of the case. These orders include prohibitions about relocating a distance from the other parent or out of the court’s jurisdiction until a determination has been made on custody and placement of the children.

Where and with whom the children should live will be determined in the course of the parenting divorce action, and if you and the other parent cannot come to an agreement, the court will issue orders following a trial. If one parent intends to move out of the country, that move will obviously be a big factor for the court to consider and whether that move is in the child’s best interest.

As part of the parenting divorce action, you would be seeking to prohibit a move or removal of a child, in addition to seeking custody and placement orders. Many courts will not prohibit one of the parents from moving; however, courts frequently dictate where the child may live, and it is very often tied to the court with jurisdiction.

It is common for a judge to allow a parent to move, but not take the child, if that is determined to be in the child’s best interest. I cannot say that no judge would ever grant custody to a parent that intended to move out of country against the other parent’s wishes.

However, there would need to be substantial evidence that the move out of country would be beneficial for the children, especially if that child had not previously lived there. The court will weigh a child’s additional family members and relationships and their connection to the community in a move case to try to determine what is best for the child. The court would consider what is likely to happen to the relationship between the child and the parent that is left behind.

Another significant parenting divorce consideration for the court is the location to which the parent proposes to move.  The purpose of the Hague Convention on the Civil Aspects of International Child Abduction was to secure the prompt return to their place of “habitual residence” children who were wrongfully removed to or retained in another contracting country.

The Hague Convention was designed to keep the courts in the abductor’s country focused on getting the child back as quickly as possible and letting that home country become the forum for deciding any substantive custody or placement issues.

Both Ecuador, where you wife is wishing to move to, and the United States are members of the Hague Convention. However, Ecuador’s status was changed to non-compliant in 2003 because its government had not established a central authority to fulfill its responsibilities under the convention.

I have not heard that any of these parenting divorce issues have been resolved effectively. Without this reassurance, the court may be hesitant that Ecuador would honor its orders including visitation time with both parents.

In order to have the court’s protection, you need to commence an action. How likely it may be that a court would allow her to move out of country depends on the facts of your specific case and the rules in your jurisdiction.

I do not practice in Virginia, so I cannot inform you as to the state’s specific laws. I recommend that you consult a domestic litigation attorney in your jurisdiction regarding parenting divorce.

 

Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.