US Marital & Family Law : Child Custody Issues

Marriages and other relationships between U.S. and U.K. citizens present challenging jurisdictional and custody issues.

Court orders of one nation are not automatically recognized or enforceable in the other.

While the U.S. and U.K. have signed international treaties concerning the return of abducted or wrongfully retained children, neither have signed any relevant treaty addressing child custody laws.

In the U.S., the full faith and credit clause of the United States Constitution prescribes that a state must recognize the public acts, records, and judicial proceedings of every other state. However, this mandate does not apply to the decrees of foreign countries. the U.S. courts may give recognition to the judgment of a foreign nation as matter of comity. The comity doctrine holds that, as a courtesy, a court may recognize a foreign court order, but is not compelled to do so. This extension or denial of comity is discretionary and is reviewed on an abuse of discretion standard allowing the court wide latitude. Certain uniform U.S. state laws may in some instances to the U.K. One of these is the UCCJEA which defines how or when a state may exercise jurisdiction. This Act may be applied by U.S. states to the U.K.

In the U.K., there is no requirement that the U.K. courts recognise orders of U.S. courts concerning custodial or contact matters. As with the U.S. courts, under the principle of comity, U.S. orders may be recognised and/or enforced.

Where children are abducted or wrongfully retained, the Hague Convention (Hague Convention on the Civil Aspects of International Child Abduction) may systematically and jurisdictionally obtain the prompt return of the children to their “habitual residence”. The U.S.’ International Parental Kidnapping Crime Act of 1993 imposes a fine and/or imprisonment to any parent who unlawfully removes a child from the United States. A non-custodial parent who steals their child away from the custodial parent and takes the child outside of the United States may be criminally prosecuted

When facing international child custody situations, it is critical to take advice from lawyers who understand and have experience in dealing with these statutes and treaties.