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Children

Key Resources:

  • Uniform Child Custody Jurisdiction and Enforcement Act 1997 (UCCJEA), codified in Washington by RCW 26.27;
  • 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), implemented in the USA on 1 July 1988;
  • The Federal, 1993 International Parental Kidnapping Crime Act

  • Uniform Child Custody Jurisdiction and Enforcement Act 1997 (UCCJEA), codified in Washington by RCW 26.27

Washington courts must recognize and enforce foreign custody orders if they are in substantial conformity with jurisdictional standards set out in RCW 26.27. However if the child custody law of the foreign nation violates fundamental principles of human rights Washington courts are not obligated to enforce the order. (RCW 26.27.051).

The court can assume temporary emergency jurisdiction in situations where it may not have initial child custody jurisdiction (RCW 26.27.231).

  • The 1980 Hague Convention on the Civil Aspects of International Child Abduction (The 1980 Hague Convention):

The 1980 Hague Convention was implemented in the U.S.A on 1 July 1988 by the International Child Abduction Remedies Act, (ICARA), 42 U.S.C. sections 11601-11610. Basically, the countries that have agreed to adhere to the Convention agree to return a child under 16 years of age to the country of ‘habitual residence’. The return hearing under this Convention is not a child custody hearing. The intent is to return the child to the habitual residence country. In that event it any custody proceedings would be carried out in that country of habitual residence. A court is required to defer any consideration of custody upon receipt of notice that an application for return of the child has been made under the Hague Convention until the appropriate state or federal court has decided that the child is not to be returned. (See Article 16 of the Hague Convention).

Under section 11603 of ICARA an application for return of the child can be processed through federal or state courts. It is the responsibility of the applicant for return of the child to initiate timely proceedings.

Under RCW 26.27.541 a Washington State prosecutor or the attorney general may take any lawful action under the Hague Convention.

Note: There are defences to return such as domestic violence.

One should be very careful to meet time deadlines under the Convention and country enabling legislation (ICARA in the U.S.A). One should also be careful that the child does not become “settled” in the new country. If the child appears to have become settled in the new country the court may not return that child.

  • The International Parental Kidnapping Crime Act 1993:

The International Parental Kidnapping Crime Act 1993 codified as 18 U.S.C. section 1204, provides for up to three years of imprisonment and fines for removing or attempting to remove a child from the USA or retaining a child outside the USA with intent to obstruct the lawful exercise of parental rights. ‘Parental rights’ include joint or sole custody or visitation rights which may arise by operation of law, court order or legally binding agreement of the parties.

This is a very significant and often overlooked potential problem for anyone who removes a child from the U.S.A so as to intentionally interfere with custody or visitation rights of the other parent.

Click to Return to www.informeddivorce.com/internationalfamilylaw.html