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International Divorce and Child Custody Issues

May 25, 2019 in Uncategorized | MARTIN WREN, P.C. | LEAVE A COMMENT

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It is much more common nowadays for couples to spend time apart while married, or even take their entire family abroad. However, if the marriage breaks up, there can be some difficult and unique issues, especially if one spouse is in the military. It may be advisable to enlist a professional to help negotiate complex questions in this situation.

Divorce

International divorces can be extremely drawn out, even if there are no children involved. Most of the common questions involve jurisdiction: if I am divorced in another country, will it be recognized at home? Whose law applies? What if my spouse is not an American citizen?

In terms of having your divorce recognized, it can be reasonably assumed that it will be. While the U.S. is not a party to the Hague Convention on the Recognition of Divorces and Legal 

Separations (HCRD), which governs these issues in many other countries, the principle of comity (considerate behavior toward other nations) exists in U.S. law, and under that, most divorces are recognized unless it can be proven that the judgment of the foreign court was somehow in error or fraudulent, or if that country’s residency requirements were not met. If you do encounter resistance, the attorney general of your home state may get involved.

When you are divorced in a foreign country, however, you must also be aware of whose law is going to apply – your state, the law of the foreign country in which you are seeking the divorce, or the foreign country where you (and/or your spouse) have been living. Generally, the law of the country in which you want the divorce will apply, but there are exceptions.

When your spouse is not an American citizen, the main way that it may affect you is that if he or she loses immigration status, your children may wind up either moving or spending visits in another country. This is generally a good thing in the long run – dual nationality and increased exposure to other cultures can be a decided boon later in life – but in the short term, it can cause stress on parents, especially if your divorce is less than amicable.

Child Custody

Child custody, as opposed to divorce, is where most people clash, and the worst disagreements occur. The law in the United States does protect the parents left behind; the Uniform Child Custody Jurisdiction and Enforcement Act was enacted by 49 states and the District of Columbia.

The law does attach a lot of weight to a court’s initial custody finding; they tend to operate from the standpoint that the trial court did not err unless it is very obvious that they did. The court will try to rule in the ‘best interests of the child’ – but if a child has no connections in the foreign country save his or her one parent, the court will be likely to deny the move. Cultural factors may also play a role – a country with religious or cultural laws different from those in the U.S. may stonewall or otherwise obstruct the child’s return, if officials feel it would be in the best interests of the child to remain.

You Cannot Do It Alone

If your spouse or children have ties to a foreign country, it can mean a long and difficult process to protect your parental rights. A family law attorney in Plano, TX can help you ensure that you are protected in case something goes wrong. Contact a law office today for a consultation.

Thanks to Scroggins Law Group for their insight into family law and international divorces involving children.

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