What remedies are available to left-behind parents when one parent unilaterally removes a child from the child’s place of habitual residence to another country?
By Molshree A. Sharma, Family Lawyer
The world is becoming a smaller place. With globalization, employment opportunities, interdependent economies, and developing markets, it has become common for people to move or be transferred to a foreign country. While living abroad, they may marry and have children – which can result in complex issues around competing jurisdictions should there ever be a custody issue. The outcomes vary depending on how the term “custody” itself is defined and interpreted in various countries.
There has been an increase in the number of cases where a parent unilaterally removes a child from the child’s place of residence to another country in an attempt to become the child’s sole custodian. This article looks at the remedies available to left-behind parents – especially in light of recent case law in the Seventh Circuit of the United States Appellate Court regarding custodial rights of unmarried fathers.
International Child Custody & the Hague Convention
The Hague Convention on the Civil Aspects of Child Abduction (“Convention”), a multilateral treaty ratified by 98 countries as of May 2018, provides an expeditious protocol for the return of a child unilaterally removed by a parent from one member country to another.1
Article 3 of the Convention requires signatory countries to promptly return children to the country of their habitual residence when they are wrongfully removed or retained in another country in breach of the custody rights of the left-behind parent. The law of the state or country from which the child was removed determines custody rights; this adds some fluidity as in some countries an unmarried father may have rights upon the birth of the child, while other countries require a declaratory order to bestow custody rights. Even when the court of habitual residence has placed a non-removal clause on the custodial parent, whether this bestows custody rights per the Convention or is simply an assurance of a continuous right to access is subject to debate.
International Child Custody: a Child’s Habitual Residence is Crucial
Mary Redmond left her home in Orland Park, Illinois when she was 19 years old to study in Ireland.2 She and Derek Redmond (the parties’ having the same last name is a coincidence) never married but cohabited in Ireland where they decided to reside and raise a child. The parents further agreed that Mary would give birth in Illinois, where Derek was named as father on the birth certificate and signed a Voluntary Acknowledgement of Paternity (“VAP”) before they returned to Ireland. The relationship deteriorated and Mary went back to Illinois with their son against Derek’s wishes.
Despite being named on the birth certificate and VAP, Derek had no custody rights: when a child is born out of wedlock, a father has no custody rights under Irish law until he petitions the Irish Court for custody or guardianship.3 Since the child’s habitual residence was Ireland, where Derek had no custody rights, the Convention did not apply. Based on these facts, the Seventh Circuit did not return the child to Ireland.
Custody rights are typically determined by the law of the country from which the child was removed. In Redmond v. Redmond, even though Derek petitioned the Irish Court and finally received custody rights, three years had passed. Mary and the child had resided in Illinois for those three years, only returning intermittently to Ireland for Court appearances. When Derek received custody, Mary represented to the Irish Court that she would return to Illinois to pack up belongings and then return to Ireland on a specified date. She later admitted to the 7th Circuit Court that she gave this undertaking with no intention of ever returning to Ireland.4
Since the child had resided lawfully in Illinois for three years, Illinois was now the child’s habitual residence. In deciding whether Ireland or Illinois was the child’s habitual residence, the Court held that while it was clear the parents’ last mutual intention was to reside in Ireland, the trial court had given that factor too much weight as that intention had last been shared several years ago. When Mary first removed the child from Ireland, she had the right to do so, and since then, the child had become fully rooted in his life the United States. He had spent three of his four years in Orland Park; he attended daycare and preschool there, and was enrolled in a local school for kindergarten.5
International Child Custody and Unmarried Parents
This is not an isolated case. In Garcia v. Pinelo, Raul Salazar-Garcia (Salazar) and Emely Galvan-Pinelo (Galvan) never married but they had a son (D.S.) together.6 When Galvan married, she and her husband decided to move to Illinois, and Salazar agreed that the child could go with her for one year only. After a year, when Galvan refused to return their son to Mexico, Salazar filed his petition under the Convention to return D.S. The Seventh Circuit Court found that Salazar had custody pursuant to the Mexican law convention of patria potestad (parental authority), and held the child must be returned to Mexico.
However, the reverse outcome happened in Martinez v. Cahue.7 The parties were never married, but had a private arrangement for custody and visitation of their son, A.M., in Illinois. After seven years, Jaded Martinez, a Mexican citizen, moved to Mexico with her child. The father, Peter Cahue, persuaded Martinez to send A.M. for a summer break visit in Illinois, then refused to return the child to Mexico. In reversing the Northern District, the Seventh Circuit found that before Martinez moved to Mexico, she had sole custody of A.M.; unless there is a court order, Illinois law presumes a mother has sole custody of a child born to unmarried parents.
Therefore, Cahue did not have any custody rights and A.M. was returned to Mexico.
Unmarried parents (especially fathers) must be extremely careful when it comes to international child custody. While some countries may provide custodial rights to unwed fathers, many countries do not. Review the definition of custody in the country in question. If fathers do not have custodial rights, practitioners must advise clients not to go there. If they must go for employment, advise them to petition for guardianship and custody rights immediately even when, as in Redmond8, they are on the United States birth certificate.
1Convention on the Civil Aspects of International Abduction, 1343 U.N.T.S. 89 (Oct 25, 1980), T.I.A.S No. 11,670 (entered into force December 1, 1983, enacted into federal law through the International Child Abduction Remedies Act (ICARA), 22 U.S.C. § 9001 et seq.
2Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013).
3Id. at 19-21.
4Id. at 6.
5Id. at 7.
6Garcia v. Pinelo, 125 F.Supp.3d 794 (7th Cir. 2015).
7Martinez v. Cahue, 826+ F.3d 983 (7th Cir. 2016).
8Supra, n. 2.
Molshree (Molly) Sharma is a partner at Boyle Feinberg Sharma, P.C. in Chicago. She has expertise in international family law issues, and she has also given lectures in Washington D.C. for other lawyers, parents, and professionals on international custody matters.
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Thank you for the article. Very helpful and interesting especially on the issue of unmarried fathers. Also, I found out in one of my cases involving Russia that even though the US and Russia are both signatories to the Hague Convention, because they don’t have a treaty between themselves related to the return of children, the State Department will not consider a Hague Convention petition filed by a Russian parent for return of a child that is brought to the U.S.