When a married couple decides to divorce and they have dependent children, they must decide what will happen to their children. Child custody decisions can be some of the most contentious and difficult decisions to make on divorce. The best solution is for the couple to come to a joint agreement which covers who looks after the children on a day to day basis, what the visitation rights will be, how important decisions about the children’s welfare will be made and how the children will be cared for financially. In Massachusetts, an uncontested divorce will normally only be granted once a satisfactory child custody agreement is provided to the Probate and Family Law court, signed by both parents and notarized.
Best interests of the children
If the couple cannot come to a mutual agreement about child custody, then the decision may be left to the court, who will determine what is in the best interests of the children. Many factors will be taken into consideration before the court makes its final decision about child custody arrangements.
Once an agreement has been made which covers all aspects of child custody, it cannot be modified unless the court is petitioned and any modification assessed and agreed to. Most child custody arrangements recognize that children need to have an ongoing relationship with both parents, even if one of the parents has physical custody for the children. This means an acceptable timetable that allows the parent who does not have physical custody to have an ongoing relationship with the children through visits, weekend and vacation time.
Interstate or international movement
One potential problem is when one of the parents decides to move interstate or overseas with the children. As this is a significant modification to the child custody agreement, the parent who wishes to move must seek approval from the court. The court will again make a decision whether to approve or disapprove this modification based on the best interests of the children. For example, if the other parent will not be able to maintain a relationship with the children because of distance or other reasons (visa problems, can’t afford to travel, etc.) then the court may not allow the agreement to be modified.
The most troubling problem is if one of the parents is determined to move overseas, for example, to move back to their original homeland or to seek a better job. There is no global international custody agreement in force that ensures that custody arrangements established in any U.S. state will be recognized in another country, although some countries will acknowledge U.S. custody arrangements.
A parent who knowingly ignores a court’s refusal for the children to be taken overseas may be committing a criminal offense, i.e. that of kidnapping. There is an international treaty that many countries recognize which addresses instances of abduction or kidnapping. This is the Hague Convention on the Civil Aspects of International Child Abduction. This treaty encourages international courts to return children who have been abducted to their ‘habitual residence’. However, not every country is a party to the Hague Convention and even those that are, are not necessarily bound to respect it.
In the U.S., the International Parental Kidnapping Crime Act (IPKCA) of 1993 makes it a federal felony offense for a parent to remove a child under 16 from the U.S. if by doing so it contravenes a custody order. This means that if you think that your ex spouse intends leaving the U.S. with your dependent children even though this has been prohibited by the court, you may be able to stop the parent from leaving the country if you alert the relevant police authorities in time.
Child support arrangements when a parent goes overseas
A different situation, but equally problematic, is when a parent who does not have physical custody of the children, but is responsible for providing child support payments, moves overseas. Many countries will not act if the parent has moved to their country and is legally (in the U.S.) bound to make child support payments. The Hague Convention on the International Recovery of Child Support and Family Maintenance, like the similar convention on child abduction, is in existence to try and enforce child support payment orders, but there is no guarantee that even if you fly to that country and try and engage the local legal system that you will have any success, even if the country your ex has gone to is a party to the Hague Convention.
Importance of devising a suitable child custody agreement
Considering potential problems if the main child carer decides to move away from their original home and especially if that person wants to move overseas, it is essential that this potential is included in the child custody agreement. For example, if the parent who has been providing primary physical custody (i.e. the parent who provides day to day parenting for the children and whose home is where the children mainly live) wishes to move interstate or overseas, then this must be approved by the court.
Alternatively, if this possibility has been discussed during pre-divorce negotiations, then acceptable visitation rights should be addressed, i.e. there must be opportunities for the parent who does not have physical custody to be able to continue visiting the children and maintaining a parental relationship. The court, if petitioned, may decide that the children are cared for by the stay at home parent, while the other parent moves interstate or overseas and applies for visitation rights.
Failure to include these possibilities in a child custody agreement may make it difficult to resolve any custody issues if the parent avoids a court order and moves to a country where U.S. child custody orders or abduction allegations are recognized.
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