Using a Foreign Country's Justice System
You may wish to consider using the civil justice system in the country to which your child was taken to try to return your child to the United States if:
- If your child has been abducted to a country that is not a U.S. partner under the Hague Abduction Convention and/or the Convention does not apply in your case.
- The Hague Abduction Convention is an available remedy but you elect not to file a Convention application.
- Your Hague Abduction Convention application for your child’s return was rejected or denied.
This usually will involve the family court system of that country. Please consult with your legal representatives before pursuing any action in the foreign courts.
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 where the Hague Abduction Convention remedy is not available. For example:
- The taking parent may have an advantage if the proceedings take place in that parent's country of origin and/or if the foreign country has a gender-based cultural bias.
- The legal process may be very difference than the United States and in a language you may not understand.
- Taking part in a foreign court’s legal proceedings may be viewed as acquiescence to that court’s jurisdiction of the matter of your child’s custody.
Additionally, courts in other countries often do not recognize prior court decisions made in the United States. 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 if your custody order from the United States has no legal authority in another country, it still might help you. While a foreign court may not recognize a U.S. court order, it may still consider it as evidence. In rare cases, the foreign court may even decide to 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 a U.S. partner under 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 country officer in our office may be able to provide you with some background about that country. Keep in mind that they are not able to provide legal advice, but they can provide information and direct you to additional resources 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 attorney and your country 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 by agreeing to a divorce abroad you may acquiesce to foreign court jurisdiction for custody case as well.
What You Can Do
Contact the Authorities
Locate Your Child
State Departments Role
Steps You Can Take on Your Own
Learn about the Hague Abduction Convention & Local Laws
State Department's Role
Steps You Can Take On Your Own
What is the Hague Abduction Convention?
Explore Your Legal Options
Prepare for Reuniting with Your Child