International Child Relocations from U.S. States

Abstract

Child caretaking in the United States today frequently is undertaken by adults who do not operate under court orders or private agreements. The adults may, but need not then be, legal parents. There are usually constraints when one of the adults desires to relocate with the child within his/her state or to another American state. When an international relocation with the child is desired, moves from any American state are governed by the Hague Convention on Civil Aspects of International Child Abduction (Convention). Here, issues arise regarding the child’s “habitual residence,” as well as who possess rights of custody and whether there had been exercises of such custodial rights by the nonrelocating childcaretakers.

Though the Convention guides only international child relocations, it generally defers to the American state custody laws in the states of the children’s habitual residences. While common sense suggests the principles guiding international relocations should be comparable to, if not more demanding than, intrastate or interstate moves, surprisingly this is sometimes not the case. This is illustrated by a 2016 Seventh Circuit ruling on an international child relocation from Illinois.

While the issue of “habitual residence” has been deemed “pivotal” in many international child relocation cases, receiving much attention, this article focuses on possessions and exercises of custody rights in Convention proceedings. Unfortunately, here common sense is sometimes lacking. This article, in particular, reviews the challenges in determining custody rights due to by the expanding U.S. state laws on de facto (and comparable) parentage and on nonparent childcare orders over parental objections.

The article concludes by urging more sensible approaches to international child relocations from the United States. It proposes that current state laws on intrastate and interstate child relocations be consulted, and at least somewhat employed. Further, it provides guidance on the challenges posed in child relocation cases by the emerging de facto parent doctrines, founded on imprecise norms typically applied only after childcare disputes arise, as well as by the increased recognitions of nonparent childcare interests, which can override superior parental rights to serve the best interests of children.