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California Court Discusses Application of the Hague Convention in Custody Cases

Given the global economy and the ease of establishing a life outside of the United States, it is not uncommon for a family to reside in another country for an extended duration. When a couple that regularly spends time in other countries decides to divorce, however, their international travel habits may present challenges in terms of determining custody. The hurdles of protecting custody rights when the parties have lived abroad were demonstrated in a recent California case in which the parties lived overseas prior to seeking a divorce. If your child’s co-parent is attempting to keep your child in another country, it is essential to retain a diligent California child custody attorney to help you fight to protect your parental rights.

Facts of the Case

It is reported that the mother and father were married in Italy in 2006 and lived there until 2008 when they moved to California. They had two children in 2009 and 2010 while living in California. In 2016, they moved back to Italy as a family, but the mother and the father became United States citizens prior to moving. They eventually gave up all of their assets and property in California and established a life in Italy. The children attended school in Italy and routinely received medical treatment there as well.

Allegedly, in 2018, the mother and the father began experiencing marital problems, and the mother advised that she wished to move back to California with the children. The parties never agreed regarding where the children would reside, however. The mother moved back to California, and in 2019 the father filed for divorce in Italy. The mother then traveled to Italy and returned to California with the children. At that time, the children had lived in Italy for two years and nine months. The mother subsequently filed a divorce action in California in which she sought, in part, sole legal and physical custody of the children. The father then filed a petition for the return of the children under the Hague convention.

Petition for the Return of a Child Under the Hague Convention

The Hague Convention (the Convention) was adopted by the United States in 1980 to address the issue of the international abduction of children during custody disputes. The primary feature of the Convention is the return of children that have been wrongfully removed or retained. A petition under the Convention does not permit a court to determine custody rights, however. Rather, when a court receives a petition under the Convention, in most cases, it must determine the child’s country of habitual residence and return the child to that country, rather than analyze which parent is better suited to have custody of a child.

Further, a parent asking for a child to be returned under the Convention must show by a preponderance of the evidence that the child was wrongfully retained or removed. Once the parent demonstrates that the removal was improper, the burden shifts to the opposing party to demonstrate that it was lawful. In the subject case, the court found that based on the evidence presented, it was clear that the children’s habitual residence was in Italy. Further, the mother did not demonstrate the presence of any exceptions that would allow the court to deny the father’s petition. Thus, the court ordered the return of the children to Italy.

Meet with a Seasoned California Attorney

It is critical for anyone whose child custody has been wrongfully removed to act promptly, as a delay could irreparably impair your rights. If you need assistance establishing or enforcing custody rights, California child custody attorney Ethan M. Weisinger can assist you in gathering the facts and evidence needed to help you seek the best result available under the facts of your case.  You can contact Mr. Weisinger via the online form or at 925-258-2020 to set up a conference.

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