Possible Solutions - Using a Foreign Country's Civil Justice System

Using a Foreign Country's Civil Justice System

If your child has been abducted to a country that is not a party to the Hague Abduction Convention, or if the Convention does not apply in your case, you can attempt using the civil justice system in the country to which your child was taken to try to achieve the return of your child.  This usually will involve the family court system of that country.

Challenges to Using the Civil Justice System in Foreign Countries

There are many challenges that parents face in trying to use the Civil Justice system in countries that are not a party to the Hague Abduction Convention.  For example:

  • The person who has abducted the child may have a “home court” advantage if the proceedings take place in that parent’s country of origin; and if the foreign country has a gender-based cultural bias.

Additionally, courts in other countries often do not consider the prior court decisions made in the United States.  A custody order in the United States can therefore be meaningless abroad.  When confronting this challenge, keep in mind the following three things:   

  • Each country is a sovereign nation. Sovereign nations cannot interfere with each other's legal systems, judiciaries, or law enforcement.
  • Generally, every country only has jurisdiction within its own territory and over people present within its borders; and
  • Although court orders from other countries may be recognized in the United States under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), this is rarely true in reverse--U.S. court orders are not generally recognized in other countries.

Proceeding with the Civil Justice System in Foreign Countries:

Even though your custody order from the United States has no legal authority in another country, it still might help you. Sometimes that custody order can be persuasive in a foreign court.  The foreign court may consider it as evidence.  In rare cases, the foreign court may decide to even recognize and enforce the custody order on the basis of comity (voluntary respect of one country for the laws and judicial decisions of another country). 

Ultimately, the foreign court will decide a child custody case on the basis of its own domestic laws—it is at the discretion of that court whether or not to give any weight to a U.S. court order. 

If you decide to use the Civil Justice system in a country that is not party to the Hague Abduction Convention, you will likely need to retain an attorney in the country to which your child was taken.  Please read our flyer about retaining a foreign attorney for more information about hiring an attorney abroad.  Additionally, the case officer in our office may be able to provide you with some helpful hints about that country.  Keep in mind that they are not able to provide legal advice to you, but they can serve as a helpful resource to you as you proceed with the emotional and difficult task ahead. 

Tips to Keep in Mind

  • Do not ignore a document issued by a foreign court. Bring it to the attention of your case officer in our office without delay. 
  • Remember that different countries may have requirements that differ from those used by U.S. courts, such as citizenship, to proceed with a divorce or custody action. 
  • Some countries consider custody as part of a divorce petition, so agreeing to a divorce abroad you may inadvertently acquiesce to foreign court jurisdiction for custody case as well.

 

Settling out of Court | Using the Hague Abduction Convention | Using a Foreign Country's Civil Justice System | Pressing Criminal Charges | Applying Country Specific Information