We live in a world where globalization has opened the door to the mingling of diverse identities. Particularly in San Francisco Bay Area, we see diverse family units which offer their own set of complexities and challenges.
Consider a scenario where parents A and B are nationals of different countries and reside in Los Gatos, California. A is a national of Germany and B is a national of the Philippines. After the birth of their child in Germany, the parents moved to California, United States for a promising business opportunity. After living in the United States for eighteen (18) months, A and B wish to separate and commence divorce proceedings. Amidst these challenging times, B a citizen of the Philippines, travels to the Philippines with the child, a dual citizen of Germany and the Philippines. In the Philippines, B obtains a favorable ex-parte child custody order granting complete custody of the child to B. B then seeks to enforce the child custody order against A in California, United States. Will the Courts in California recognize and enforce the child custody order from the Philippines?
To resolve this dilemma, we will look to the application of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The UCCJEA determines which court has the jurisdiction or the power and authority to consider the issues in a child custody matter. The UCCJEA adopts the language of the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), an international agreement between a large number of countries, for the return of a child who has been abducted by a parent of one-member country to another. In recognition of its obligations under the Hague Convention, the United States enacted the UCCJEA to enforce foreign custody orders in the United States, when a foreign court has continuing custody jurisdiction.
Accordingly, under the UCCJEA, jurisdiction lies in the child’s home state. For a child six (6) months of age or older, that child’s home state is the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months. This six (6) month period is counted immediately before the commencement of a child custody proceeding. A parent must present evidence that this six (6) month criteria has been met or the Court in the United States will not commence child custody proceedings. Accordingly, in the above case scenario, parent A can commence child custody proceedings in California, United States by providing evidence that the child has lived in California for eighteen (18) months before the child left with Parent B for the Philippines. This will enable the Courts in California to grant a child custody order. Further, the Courts in California are not obligated to enforce the child custody order from the Philippines because the Philippines lacked home state jurisdiction under both the Hague convention and the UCCJEA.
There are three crucial issues that must be kept in mind: (1) Time is of the essence, do NOT wait past six (6) months; (2) Is the country that the minor child has been taken to a signatory to the Hague Convention? and (3) Documenting that the minor child was living in a different country immediately before being removed to another. If the other parent is a foreign national with family abroad and it initially becomes clear that a divorce is likely, reach out to us immediately. This will enable us to take preventative actions to stop the child from being removed from the United States and avoid an expensive and emotionally painful international custody case.
Disclaimer: Please do not treat this opinion as legal advice as your matter may have other aspects and issues that must be considered by an attorney. To discuss your case, please reach out to us at [email protected] or [email protected].