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Thread: International custody battle in Hague Convention countries

  1. #1
    practical experience, FTW
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    International custody battle in Hague Convention countries

    I sometimes have an odd way of asking questions or explaining things. Please feel free to ask for clarification when needed!
    From start to finish, what does an international custody battle with the following characteristics look like, from the lawyer's point of view?
    -Both she and her client are from Northern Ireland. They both work and reside in Washington State in the USA. From what research I did, these are both Hague Convention countries
    -Her client has made the case difficult due to his actions (underreporting income, lying about things in an attempt to stall the divorce, ignoring deadlines)
    -He calls her late at night and informs her he returned to Ireland with his son so his wife wouldn't get custody. His son is US-born and has never been to Ireland

    The family law lawyer didn't expect the custody battle to turn international. Her paralegal and her legal assistant both turned in their notices a week ago because they found better jobs. She has an active caseload of two hundred and fifty cases, works eighteen hour days, and has (reluctantly) hired another attorney to help split the workload. She specializes in divorce cases where child abuse is a big factor, but hasn't worked with something like this. She is so stressed out that she's considering firing him as a client.
    -How would a case like this normally proceed?
    -Would she have to go to Ireland? For how long? To do what?
    -Would her citizenship status in the US or the fact that she lived in Ireland until the age of eighteen affect the case in any way?
    -What complications would logically arise?
    -What would a successful representation of her client look like? Unsuccessful? Would it affect her practice or standing in the legal community in any way?
    -Is there anything I haven't asked, or any information I haven't provided, that you would like to mention?

    Thank you!
    Zev

  2. #2
    practical experience, FTW cornflake's Avatar
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    Wait, who has custody when this happens?

    I'm not sure but that sounds like an abduction and I *think* Ireland would return the kid if they can locate him. Also, I'd think about how he got the kid there?

  3. #3
    practical experience, FTW autumnleaf's Avatar
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    Northern Ireland is legally part of the U.K. and separate from the Republic of Ireland. So it is UK law, rather than RoI law, that you need to worry about. See for example: http://www.iflg.uk.com/faqs/child-abduction

    I presume she would have to work with a UK lawyer (lawyers in both the UK and RoI come in 2 categories, solicitor and barrister, each of which have distinctive roles: http://www.qlts.com/blog/profession/...the-difference).
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  4. #4
    practical experience, FTW autumnleaf's Avatar
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    I'm also wondering how the child got a passport. AFAIK, you normally have to get a signature from the custodial parent or parents, and some countries also require an official stamp of approval from a police officer before a minor child can get a passport.
    Last edited by autumnleaf; 06-19-2017 at 09:26 PM.
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  5. #5
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    A child born in the US is a US citizen. The rules for getting a juvenile (under 16) a US passport are clear (see link) and cannot be waived (absent US Dept of State intervention, or a specific US court order, subject to further judicial review). Any misrepresentation by the parent/guardian (adult authority preparing the application) in the required documentation can be prosecuted as a felony violation (18USC1001). Without a passport, international movement of a child is tantamount to kidnapping/human trafficking/etc. (dependent upon involved jurisdictions and their specific descriptions of related violations).

    It may be wiser to avoid opening that particular can of worms. You might want to reconsider your premise, or establish that the child already had a US passport issued well before the incident in question.

    https://travel.state.gov/content/pas.../under-16.html

  6. #6
    practical experience, FTW cornflake's Avatar
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    I presumed he had a passport already -- you still usually need permission to take a kid international if you're travelling with the kid alone.

  7. #7
    Heckuva good sport frimble3's Avatar
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    And, how old is the child - difference between taking a 4 year old who trusts and believes the father's story, or taking a teenager who, once the novelty wears off, wants his friends, and his X-box, not some strange place where everyone talks funny.
    Would it affect her practice or standing in the legal community in any way?
    As long as she did nothing illegal, I can't imagine her getting in trouble for working for her client. Even murderers get lawyers.

  8. #8
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    Thank you all so much for the thorough information! I'm so excited.
    To clarify:
    -The son has been staying with his father, to the outrage of his mother. That's why I wasn't sure it was an abduction.
    -The whole family has passports. Before the separation, they spent a happy weekend in Canada and were planning to visit Ireland for the first time.
    -The son is eleven, and very attached to his dad. He willingly went with him to Ireland but has convinced himself they're going back to the US in a few months.
    -The lawyer hasn't done anything illegal.

  9. #9
    practical experience, FTW cornflake's Avatar
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    Who has custody?

    How did the father get the kid out of the country without the mother's permission?

  10. #10
    practical experience, FTW Tsu Dho Nimh's Avatar
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    -Both she and her client are from Northern Ireland. They both work and reside in Washington State in the USA. From what research I did, these are both Hague Convention countries

    The laws of the country of residence of the divorcing parties (assuming they are legal residents) is the controlling law. In this case, Washington State.

    Where the lawyer is from is unimportant as long as they have a license to practice and are a legal resident.


    -Her client has made the case difficult due to his actions (underreporting income, lying about things in an attempt to stall the divorce, ignoring deadlines)

    The first thing that happens in a divorce in the USA where minors are involved is a temporary custody order. Violating that order is a very bad idea.

    Judges in family court have very little patience with those shenanigans. My SO's ex-wife was playing exactly that sort of game (even misleading her lawyer about her income potential) and she was called into the judge's chambers and told to shape up or get slapped with contempt and jailed.

    You don't get to stall indefinitely. His lawyer could and perhaps should have told him to shape up or the lawyer will ask to be released from the case.

    -He calls her late at night and informs her he returned to Ireland with his son so his wife wouldn't get custody. His son is US-born and has never been to Ireland

    Under International law, that is called custodial interference.

    https://travel.state.gov/content/chi...forcement.html

    NOTE: He would not be allowed out of the USA with a minor unless he had a proper passport for the child, with a signed, notarized statement from the mother granting permission. Or he might get stuck in customs at the other end if he slips through the American end.

    (that's been in effect for a long time just because of incidents like this, but I don't know exactly which treaty it's in)

    -How would a case like this normally proceed?

    The instant she gets that phone call, she calls the FBI and reports custodial interference. (As far as I know, his actions are not covered by lawyer-client privilege ... she was retained to represent him in the divorce to the full extent of Washington State laws. He just went outside the divorce laws, violated the temporary custody agreement and is a fugitive.)

    The Irish police are contacted by the FBI and an international arrest warrant for the dad and a warrant for return of the child is also issued.

    If he is stopped at the US border before getting on the plane, it's still custodial interference and he goes to jail. Law enforcement takes this very seriously.

    -Would she have to go to Ireland? For how long? To do what?

    Nope ... it went from civil law - the divorce - to criminal law - the kidnapping - the instant he headed for the airport with the boy.

    -Would her citizenship status in the US or the fact that she lived in Ireland until the age of eighteen affect the case in any way?
    Nope. It's irrelevant ... she is out of the picture and the FBI is in it, and the Irish equivalent.

    -What complications would logically arise?

    The dad just lost his chance at any custody, and would be deported if he had a green card after he gets out of jail.

    -What would a successful representation of her client look like? Unsuccessful? Would it affect her practice or standing in the legal community in any way?

    That man is so legally screwed ... he's going to jail, the mother gets the kid at least until he's out of jail and he could be deported for committing a felony (naturalized citizens aren't immune to deportation).

    I assume he is the client? Lawyers are not held responsible for the stupid actions of their clients, unless it can be shown that the man's lawyer was colluding with him to get the kid out of the country.


    ADDING: This happens along the US-Mexico border fairly often, in divorces or just with family tensions, or post-divorce. It's easier with a land crossing. The procedure is always the same: international law, warrants, arrests and return of child.
    Last edited by Tsu Dho Nimh; 06-21-2017 at 05:51 AM.

  11. #11
    practical experience, FTW autumnleaf's Avatar
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    The Northern Irish police force (PSNI) and the Republic of Ireland police force (Garda Síochána) cooperate frequently on crimes that might include a cross-border element. In this case, the PSNI would probably be consulted first, and they would communicate to the Garda Síochána in case the child was taken across the border (which would be very easy to do, since the border isn't guarded).
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