Fight for Your Parental Rights in International Custody Matters

When Illinois courts determine custody arrangements, they ultimately consider the best interests of the child/children involved. However, what are often relatively simple custody matters can quickly become complicated when one parent moves out of the state or out of the country.

If you need legal representation to protect your rights or the rights of your child, we can help. At the Naperville law office of Schaffer Family Law, Ltd., we represent parents and children in a variety of complex international custody disputes.

How Our Law Firm Can Help

We can represent you if:

• You live in the United States and your child has been abducted into a foreign country.
• You live anywhere in the world and your child has been abducted into the United States.
• You have been accused of international child abduction and need a lawyer to protect your parental rights.

We will carefully examine the facts to determine the strength of your case. We will give you straightforward advice so that you know exactly where you stand in the eyes of the law.

To learn more about your options, contact us to schedule a one-on-one appointment with our experienced lawyer, David N. Schaffer. We understand that your children are your top priority. We will work aggressively to advocate on their behalf.

A History of Success Serving Clients Worldwide

While his practice is rooted in Naperville, David N. Schaffer has successfully represented clients all over the world, including the Russian Federation, India, China, Ireland, Argentina, Germany, Saudi Arabia and France. He is one of the leading U.S. attorneys practicing in Hague Convention cases.

Among his many accomplishments in international custody matters, David successfully compelled the Cook County Circuit Court to throw out a custody jurisdictional ruling entered by the Supreme Court of the Russian Federation.

David has the knowledge and experience to effectively negotiate or litigate international child custody disputes. He understands the corresponding laws and has been repeatedly successful in these highly sensitive and specialized cases. His priority is to ensure that the parents of a kidnapped child have the opportunity to exert their rights and obtain justice.

Negotiating Complex International Child Custody Disputes

Parents who wish to move out of the country may do so by seeking a custody modification just as they would if they were moving out of state. Complications arise when a parent moves out of the country before a custody order is finalized or when a parent does so in violation of an existing order. When a parent moves out of the country in direct violation of a custody order, he or she is committing an international child abduction.

Many countries subscribe to the Hague Convention, which facilitates reciprocal agreements when it comes to custody. Although the Hague Convention does not ultimately decide custody cases, it does determine which jurisdiction or which country should hear the case. Generally, this is where the child had established familiar roots before his or her removal or abduction or, as the Convention calls it, the child’s “habitual residence.”

If a country has not signed onto the Hague Convention or a signatory country decides to go rogue, the process can be even more complicated. However, our experienced team is up to the task of helping left-behind parents regain custody of their children.

Need to enforce a support order overseas? We have experience handling international child support orders, including the enforcement of orders in foreign jurisdictions.

February 2023 Newsletter – Article by David N. Schaffer

AVOID HAGUE[1] LIKE THE PLAGUE – IF YOU CAN
By: David N. Schaffer

 The filing of a Hague Convention petition for return of a child should be the last resort and avoided if at all possible. Hague Convention proceedings are far from perfect and often times get very messy and time consuming. Rare is the “quick” expedited hearing contemplated by the Convention. Then, more often than not, there is the appeal with a fair chance of getting the return order stayed. The Supreme Court’s reputation of rarely taking Hague Convention cases has of late drastically changed. Fee for an appeal are not always a factor, either. Taking on Hague Convention cases, especially at the appellate level, has become the “go to” for big firms to satisfy their pro bono quotas. Perhaps this is due to the odds being much greater that yet another appeal will be taken up by The Supremes. Then there are the defenses to the granting of a return order.

 A current trend is to morph the Article 13 “grave risk” defense to include domestic battery. It is not uncommon for an abducting parent to make an often times spurious domestic violence police report on the way to the airport with the children. Some of the recent Supreme Court Hague Convention cases have focused on the “grave risk” defense.[2]

I will present with a case study a much better alternative -when available – than a Hague Convention petition for getting children returned home, i.e., Section 308 of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) Expedited Enforcement Of Child-Custody Determination. Although no information disclosed in this article is confidential, I have changed the name of the venues, save for Illinois where the case was brought.

 Having one’s child abducted to, or wrongfully retained in, another country is often-times a parent’s second worst nightmare. The stakes cannot get much higher. As such, this genre of family law is not an area to “dabble” in. Too often, I have seen otherwise good family lawyers make one misstep that can greatly hurt their chances of getting their client’s child returned. At a minimum, read and “own” the relevant statutes before considering taking on such a case, especially the UCCJEA and Hague Convention.

The parties obtained a custody decree in Arizona. It was agreed that mom could relocate to Germany with the parties two minor children. Father was given five weeks parenting time each summer in the United States. Father had not been able to exercise his parenting time for three years due to COVID. When he finally got the children for his five weeks, he immediately took their cell phones away and cut them off from speaking with their mom, friends and family in Germany. By the time the five weeks ended, they apparently refused to leave their father when it came time to go through security for their flight out of O’Hare airport.

 Meanwhile, father’s attorney filed pleadings in Illinois family court to register the Arizona decree in Illinois as well as to modify it to give father primary residency of the children.[3] Father also filed a motion for temporary emergency jurisdiction (Illinois was almost 4 months shy of even being considered the children’s home state under the UCCJEA) and asked the court to enroll the children in the local school district, which the court did. The temporary emergency jurisdiction order gave father 30 days to seek appropriate relief in the appropriate jurisdiction. He never did. About a month later, I took over representing mom.

 Of note, the referring attorney and mom’s attorney in Germany both cautioned her not to appear in the Illinois case nor come to Illinois lest she be seen as conceding custody jurisdiction to the Illinois courts. In reality pursuant to the UCCJEA, a court’s subject matter jurisdiction in a custody matter is neither affected nor conceded to by the appearance or non-appearance of a responding parent and appearing in the case does not waive the appearing parties’ right to contest subject matter jurisdiction.

By the time I took over the case my client had already been working with German counsel and preparing an application to the German Central Authority for Hague Convention proceedings to be commenced in the United States. For all intents and purposes everyone was expecting me to bring Hague Convention proceedings in federal court in Northern Illinois, especially the Hague Convention co-counsel now hired by father. Said counsel was in fact “champing at the bit” for me to do so so that he could fire-up yet another messy Article 13 Hague Convention defense known as the “mature minor.”

To begin with, there was no doubt that Germany was the children’s habitual residence before they were wrongfully retained in Illinois. In other words, my client had a fairly solid Hague Convention case except for the fact that one of the children may have been so brainwashed by the father that a defense of “mature minor” might have to be litigated. That would entail more time and expense bringing in expert(s) to evaluate the child’s maturity and conviction in wanting to stay with her father. In the end, I still felt fairly confident we would prevail. My clients’ German Application had been transferred to the US Dept of State and the Dept State officer for Germany started requesting of me frequent updates on the status of The Hague Convention proceedings including when I would file.

Commencing a Hague Convention case would mean more delays and more costs while a GAL and/or experts are brought in to assess the maturity and candor of the minor to see if the court will listen to her when she says she does not want to return back to Germany. Imagine the undue influence and pressure which will most likely fall upon the minor from both parents in a twisted abusive “popularity dance” often seen when minors are given a choice. Hague Convention cases have nothing to do with what is, or is not in the best interests of the child. Hague Convention cases have no jurisdiction over a child 16 years or older.

 I advised my client not to start with a Hague Convention petition. Rather, I advised we go the much simpler and efficient route of the UCCJEA’s Expedited Enforcement Of Child-Custody Determinations, i.e., the Arizona order that dad had commenced to register in Illinois. Had we not succeeded, we could then file Hague Convention proceedings which in turn most always acts to stay custody proceedings where the wrongfully held children are located.

I filed an appearance in the Illinois case and prepared an agreed order confirming registration of the Arizona decree – the order that gave mom the right to relocate to Germany and dad five weeks of parenting time each summer. The order dad was now in violation of. The registration of a “foreign”[4] custody determination does not magically anoint the registering venue with any subject matter jurisdiction it did not have already have. I was going to use the registration for “enforcement” purposes.

 Section 308 of the UCCJEA provides painstakingly detailed procedure for preparing and presenting a petition for expedited enforcement. On the flip-side an adverse party’s petition for expedited enforcement should be scrutinized for any failure to follow the mandates of the statute as fodder for a motion to dismiss. Of note, unlike a Hague Convention return order, an order entered pursuant to Section 308 of the UCCJEA generally cannot be stayed pending appeal. Cf. Section 314 of the UCCJEA.

 After several briefing schedules and exchanges, the court ordered father to personally appear in court with the children. The children went back to Germany with my client in time for Christmas. The whole process took less than five weeks from the time I filed for expedited enforcement. If I had filed a Hague Convention proceeding, in that same period the children may have just started being examined by a forensic expert regarding the mature minor defense and the experts would no doubt be taking time off for the holiday season.

 Before filing Hague Convention proceedings, query if there is an enforceable custody order affecting the abducted children (referred to as an “initial child custody determination” in UCCJEA vernacular) entered anywhere in the world. If there is one, if necessary, register it in the state where the children are being retained and then file for expedited enforcement of that order in the state family law court. This is true even if the enforceable custody order was entered “overseas” under similar jurisdictional mandates of the UCCJEA. – notice, due process, “home state.”

 It really is almost that simple. Think of The Wizard of Oz and the options Dorothy and Toto had to get back to Kansas. If the Hague Convention proceedings are the equivalent of going through the Wizard – flying monkeys, Wicked Witch’s broom and all -then Section 308 of the UCCJEA – Expedited Enforcement Of Child-Custody Determination is the pair of ruby slippers.

Subject to certain parameters[5], an initial child custody determination order entered in an overseas court under the same scheme as the UCCJEA’s jurisdictional mandates should be recognized and enforceable in the state court here, once properly registered.[6]

 There are a lot of crucial moving parts in the practice of international child custody law. That said, if I can be of any type of assistance during your encounter of such a case, even to simply answer a few questions, please do not hesitate to contact me.

If your child’s mother or father has unlawfully fled the country, contact us right away. We can handle the process of contacting domestic and foreign governments to ensure that your parental rights are being protected and the current custody order is being honored. We will fight aggressively on behalf of you and your child.

Our focused and detail-oriented representation is what makes us successful. To see how we can help you, contact our office in Naperville to schedule an initial consultation. You may send us an email or call us at 630-922-4500.