The Hague Convention is an international treaty that many countries, including the United States, are party to. The primary purpose of the Hague Convention is to protect children from international abduction by one parent by enabling the courts to ensure the prompt return of the child to their country of habitual residence.
What many people don’t know is that the Hague Convention also secures a foreign parent’s “right of access” to their child that is living in another country, whether or not that child has been removed illegally from their country of habitual residence. The way that a “right of access” situation generally arises in the United States is when two parents, living in a foreign country, break up or get divorced, and one parent brings the child to the United States to live. The parent who is left behind in the foreign country either gave the departing parent permission to move to the United States with the child, or they did not give their permission, but have decided, for one reason or another, not to seek the child’s return to their home country, but still want to visit with the child.
In either situation, if the parents are unable to reach an agreement regarding custody of the child outside of court, the “left behind” parent has the right to petition in state family court to seek “access” to the child, which, in effect, is just asking the family court to enter a custody order. It is important to note that since the parent who seeks the “right of access” to their child is really just seeking a custody schedule, these cases must be filed in state court, not federal court, as federal courts have interpreted the Hague Convention to mean that they do not have the authority to address “right of access” questions.
Once a foreign parent seeks a “right of access” in state court, the case proceeds just as any custody case in state court would proceed. In Pennsylvania, the exact procedure is dependent on what county you are filing in, but the standard in any custody case is the same; the best interest of the child, which is governed by the 16 factors found in 23 Pa. C.S. §5328. Of course, a custody schedule when a parent lives in another country is not going to look the same as a typical custody schedule. For example, a court would not order a week-on/week-off custody schedule, with the child flying between countries each week. However, a court could craft a schedule that allows for significant time over summer vacation with the left-behind parent in the child’s original country of residence, assuming that is in the best interest of the child.
In this situation, it would be appropriate to ask the court to take into consideration the ties that the child has with their original home country. A court could also put in provisions for frequent communications with the “left-behind’ parent, via Skype, WhatsApp, Facebook, etc. An order can also allow for visitation provisions for when the left-behind parent comes to visit the child in the United States. When a child is living in another country from their parent, it is all the more important to push for a detailed visitation and communication schedule so that the child does not lose that important connection to the left-behind parent just because he or she is living in another country.
Contact Vetrano | Vetrano & Feinman for Hague Convention “Right of Access” or Other Child Custody Concerns
Our attorneys are knowledgeable about the Hague Convention and in all aspects of child custody. We are dedicated to pursuing the best interests of our clients and their families. If you are a foreign parent whose child is residing in the United States and you would like to seek custody of that child, contact the experienced family lawyers at Vetrano | Vetrano & Feinman.
