A Word from Scott Shaw: International Child Custody Cases

When is custody decided in Georgia, another state, or in another country? 

International child custody cases are things that most attorneys find daunting. They aren’t something that just any attorney can handle. At Shaw Law, we do handle international child custody cases. 

The first issue that needs to be addressed in international child custody cases is the venue. Which court will hear the case? Will the case be heard in the State of Georgia, elsewhere in the United States, or in another country?

In most cases, though not all, that question is resolved by looking to the 1980 Hague Convention treaty. That treaty was signed by 101 different nations including the United States. The Hague Treaty defines where an international child custody case should be heard. It uses the term defining the child’s “habitual residence.” That sounds easy, right?  Well, maybe not. It was difficult enough to define the term “habitual residence” that the drafters of the treaty never did define what it meant. They couldn’t agree on a definition, leaving it vague at best. However, the United States Supreme Court created a uniform ruling on what the term habitual residence means in the Hague Treaty and that’s used to understand the venue for any international child custody cases. 

What Does Habitual Residence Mean in International Child Custody Disputes? 

The term habitual residence has been interpreted in multiple ways for multiple reasons. It has been defined as the location where the child has acclimatized or, in other courts, where the parents have a shared intent for the child to be raised. 

There are, of course, problems with both of these standards. For example, consider a baby. A baby has no location where they have “acclimatized” other than their bedroom or home, but that does not relate to a specific country. Further, as to shared parental intent, it can be difficult to establish a clear shared intent when parents are in the middle of a custody battle. It’s unlikely they’ll agree on the issue. 

There is some debate among courts whether a child can have a habitual residence. This can complicate the Hague treaty and the Supreme Court has to decide on the issue. 

The United States Supreme Court Says It Depends   

There is nothing better for a lawyer than to be told “it depends.”  That opens up the law of international child custody to the imagination of the attorney and the discretion of the judge. By saying that the term habitual residence depends, what the Supreme Court means is that every case has different facts. In one case, children may have resided in the United States for years, even if there was a parental agreement otherwise. In such a case, the fact of acclimatization in the United States is to be treated as overwhelming in the total facts and circumstances of the case.

In other cases, where acclimatization is less obvious or important to the well-being of the child, the shared parental intent may be a more dominant factor to be considered.

In the end, it will depend on all facts and circumstances and it’s up to the creativity and legal knowledge of your attorney to make the case. A court is not limited to one specific standard and can consider the total circumstances surrounding the child custody dispute to determine if the State of Georgia, another state, or another country is the nation is the child’s habitual residence.

If you have any questions, we’d be happy to speak with you. Shaw Law Firm has handled international child custody cases for more than 20 years. We are Atlanta, Georgia Divorce and Child Custody Lawyers, have been doing this since 1995.