Learn Law For All

Mastering International Child Custody: Navigating Hague Convention and UCCJEA Challenges with Expert Daryl Weinman

• Launi Sheldon and Guests

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Launi Sheldon helps to unlock the secrets to navigating the treacherous waters of international child custody with family law specialist Daryl Weinman. This episode promises a comprehensive guide through the labyrinth of legal challenges that emerge when a child is wrongfully taken across international borders. With Daryl's expertise, we examine the Hague Convention and UCCJEA's roles in such disputes and highlight how her background in economics and her prowess in the courtroom play a pivotal role in resolving these complex cases. Whether you're a parent facing this nightmarish scenario or a legal professional seeking to broaden your knowledge, this discussion is an invaluable resource for understanding the critical steps and legal nuances involved.

This riveting conversation also delves into the preventative strategies that can shield against international abduction, such as securing court orders and collaborating with the State Department. Daryl Weinman brings to light the seldom-discussed tactics of using bonds to facilitate a child's return and the jurisdictional hurdles unique to each case—like varying age cutoffs between the UCCJEA and the Hague Convention. A particular case study involving Turkey serves as a lens to illustrate the intricate process and the persistence required when handling international litigation for custody. Tune in for an essential masterclass that equips you with the knowledge to protect your family's rights across borders.

You can reach Daryl Weinman at:
https://www.weinmanfamilylaw.com/

You can reach Launi Sheldon at:
Launi@LearnLawForAll.com 

Launi:

Hi, I'm Launi with Learn Law for All, and today we have Daryl Weinman with us. Hi, Daryl, hi. So today Daryl is going to be talking to us about the International Child Custody Hague Convention and UCCJEA, but actually I'm going to have her talk a little bit about UIFSA also just for a second, because we were just talking about that a couple of minutes ago and I want to share that with everyone else. So a little bit about Daryl. She is the founder of Weinman Associates in Austin, texas, and she's a family law specialist certified by the Texas Board of Legal Specialization. She handles divorces, complex facets like child custody, support issues, asset division, and she's known for her strong courtroom presence. She also mediates so that people can do their disputes amicably. She's skilled at modifying and enforcing post-decreate orders, tackling cases from prenuptial agreements and international custody and paternity disputes. She's got a 10-point rating on AVVO.

Launi:

So she went to Colgate University and was an economics graduate with it. Again, I totally find fascinating, because most of us lawyers have different backgrounds for our undergrad. I do have an accounting degree, though, so I'm a little bit outside of that too. And then she went to New York Law School and she is actively involved with various professional groups, including the State Bar of Texas and the American Academy of Certified Financial Litigators, which, again, daryl, is another one I want you to talk about. You know that I'm going to hound you for that one, because it's just such an important part of being a lawyer in family law that so many people just don't have that information. So again, as usual, watching this video does not create an attorney-client relationship.

Launi:

Daryl is licensed in Texas only. Right, you're no longer licensed in New York. I'm only licensed in Arizona. So we're here for your entertainment and educational purposes only and not here to give specific legal advice. But Daryl's got some great information on the Hague Convention. So thank you so much for being here. Thank you All right. So again, the Hague talk to everybody. What is the Hague Convention? What is that?

Daryl:

The Hague Convention is an international treaty. It's got a lot of different components to it. There are countries that have signed the whole thing, and then there are countries that have only signed portions of it. When we talk about it in the context of family law, we're talking about the portion that applies to prevent international child abduction, and so I've looked at different websites there's somewhere between 87, 95 countries that have signed that portion of it. So there are still a lot of countries that have not signed it, including Russia, india, china, a lot of the African nations, a lot of the Middle Eastern nations, and so, since those comprise the bulk of the population of the planet, we do a lot of child custody cases with countries that are non-Hague countries. But all of Western Europe, mexico, lots of South and Central America, australia, those are all signatories.

Launi:

But even if they are signatories, does everybody always get along?

Daryl:

Well, they don't all get along, for sure, but they don't all follow it either. And there is a report that is put out every year by the State Department and you can Google it just. I think it's at travelstateus or, but anyway it's the US State Department and they put out a report every year as to which countries are non-compliant. And actually that report it's pretty long and it doesn't just talk about this country is not compliant and we're ratting on them. It gives very specific about here's what cases we had with them this year. This is what happened. This is how they were not in compliance with the Hague. They'll talk about other countries where the State Department got involved with countries who are not signatories to the Hague and how many cases have been filed about kids being taken or retained in those countries and how they're not being very cooperative. So it's a very helpful report, especially if you are in a relationship and have a child with somebody who's got strong ties to another country.

Launi:

Yeah, I mean just so that everyone knows. We just did a CLE on this and it's just, it's very fascinating on what has to happen to get it going. So what is the first step? Let's say you've got a marriage here in the United States and we'll say in Texas, and all of a sudden your spouse goes to their home country. What is the first step there?

Daryl:

So it's fast. I'm assuming you're taking the child and going to the home country, correct? Yeah, so if you believe that they're not coming back you know sometimes they go because they're upset, they're angry then try to work with them to see if they're going to come back. You can file an application with the State Department and there's on that same website explains what application to fill out, where to send it. There's also on that website. There is phone numbers and emails for some other departments US borders and customs. There's an office for the prevention of child abduction. You can just start flagging your child with all of those departments.

Daryl:

You probably also want to contact the US Embassy in the country that they went to, the consulate here for that country to also red flag the child so that they can help with maybe getting in touch with that parent and the child and let them know hey, you know, let's see if we can get this child home before you actually have to go forward and hire an attorney and file for a custody lawsuit. But what I've certainly done for people is file for divorce and child custody here in the US even though the child isn't here at the time that I'm filing, try to get them served in their home country. So I usually have to find someone in that country who can tell me what is the laws for process service in that country, because you have to follow their process service laws and find somebody to get them served. If I can get them served which I've actually been pretty successful at even in difficult countries then they have the option of coming here for a hearing or not coming, and if they want to participate remotely, they have to get permission from the court. Here Some courts will give permission and some won't.

Daryl:

And then once I get a child custody order, if they're still not coming back, you file that order with the central authority in the country where the children are and they will help get it properly filed. And I usually tell them get an attorney in that country too, because you're gonna need to go to court there to enforce the order that was done here. So you need to take that order, go to that country and try to get them to do a mandatory return and send the children back, Even if the parent still refuses. Once you've got law enforcement on your side, they can literally take the children from them, from that parent and hand them over to you. So I also really recommend to my clients go there, go to that country and be ready to receive your kids, because once law enforcement has them, they don't coddle them, they're not childcare takers, so they wanna be able to just hand them over to somebody who's waiting there. So either you or your family or somebody who is there ready to receive the children if law enforcement takes them.

Launi:

Now and we didn't talk about this in the class and I didn't tell you I was going to ask this. So, but I'm sure you'll have an answer for me If the person hasn't left yet but you're afraid they're going to leave, possibly in violation of a court order forbidding them to leave, is there, are there any steps that you can take to stop that if you think they're going to flee?

Daryl:

Yes, and I have several of those. So, first of all, make sure you know what passports your child has and where they are and get a hold of them, because they can't get a kid out of the country without a passport. So, but some of these kids have multiple passports because they have multiple citizenships based on their parents citizenship. So if you know they have a US passport, you think maybe they have a Russian passport. If you can get a hold of them, put them in hiding because they're not going to easily. Well, they can't get another US passport without your participation. They might be able to get another foreign passport and so that is a danger.

Daryl:

So the next thing is you go to those the State Department websites and email and phone number and get your registered under every single one of them so that will prevent them from ever leaving the country with your child. If you have a court order which, again, if you file for divorce for child custody, you're going to get a court order that says child is not to leave the country and you can take that court order and register that with the Department of State. You can also register with the consulate or the country that you're afraid they may go to. Depending on which country it is, they may or may not give it a lot of weight, but you can try.

Launi:

And if they're, if they want to, if they get the court's permission, say, to take the child out just to go visit for Christmas or something, is there a bond? Can they request a bond or something to make sure that they can afford to get them back?

Daryl:

Yes, you definitely can request a bond, and sometimes what we do is, even in a divorce case, where nobody's threatened to leave no one has actually left but we'll put a clause in there saying this person has strong ties to another country name the country and that we don't want the child going before a certain age, before age 12 or 13 or something, where the kid is then old enough to use a phone to call the other parent and say you know, I was supposed to be coming back, but we're not coming back.

Daryl:

You know, at least you can get a hold of your kid. And even with that, if there is any kind of real danger that they're they may not come back, then yes, ask for a bond to be posted. Make sure you the order states, every time they leave the country, that they have to give you all of the travel information they have to give you, you know, copies of the plane tickets when they're going, when they're coming back, where they're supposed to be staying, who's going to be with them, so you have other people's contact information too. Generally these are people who, unless they are like, really fleeing for some other reason and they are going to start life in some new country. Most of the time they're just going home, and so if you have any idea where their, their family, their friends are in that foreign country, that's probably where they are.

Launi:

Yeah, that always does worry me sometimes, but thankfully I don't practice that type of law anymore. So I also have a question about the age. So we talked about the UCCJEA age is 18. Is that the same as Hague?

Daryl:

No. So the Hague cuts it off at 16. They are no longer considered a child for child custody purposes at age 16. And I'm not sure if this has anything to do with that, but the State Department will allow a child at age 16 to get their own passport without a parent's participation, which I was shocked to learn that my kid at 16 could go get a passport and could leave if they want to do. But yeah, at 16, a child can get their own passport and a Hague is six. So if you have a child who's near age 16, because Hague Convention cases they are expedited but they can definitely take months, if not years. So if they're near 16, the Hague Convention jurisdiction goes away at 16.

Launi:

Yeah, that's very interesting, because if say somebody, if the child is in another state and I guess that's a whole different question if the child is in another country, I mean, then everything's filed in the United States for the divorce, because that's where the divorce should be filed. If there's no custody pursuant to Hague, can they even do anything with child support or visitation at that point? So yes.

Daryl:

So the Hague Convention, just like the UCCJDA, is really just which court is going to make the child custody determination. So when you're filing you're just asking this court in this country or that court in the foreign country to take jurisdiction. Once they have decided that they do have jurisdiction, then that court can make custody orders. But if they decide no children should be in the other country, they can't make any child custody orders. So I mentioned during the class I had a case with Turkey and so mom had taken the kids from Texas and went home to Turkey. There was lots of litigation there and appeals and finally the highest court in Turkey said those kids have got to be returned back to the US. That is their place of habitual residence. We don't believe that there's a grave risk of harm to them, which is one of the exceptions mandatory return to the US and then the US gets to make the custody determination. So once that happens, once we found the right court, the court is going to make the custody determination as between countries. Then child support goes with that. As between different states. That's not necessarily true. So because there's two different statutes, there's the UCCJEA, which is Uniform Child Custody Jurisdiction and Enforcement Act and then there's UIFSA, which is the Uniform Interstate Family Support Act, and so they have different criteria for when a court can take jurisdiction. So it is possible that one court could have child custody jurisdiction and a different state could have UIFSA jurisdiction. But when you're talking about internationally, once they've made the child custody determination, they most likely have child support jurisdiction too, but not even 100%.

Daryl:

And the reason I say that is so with a case I did with Russia last year. The parents had been divorced in Russia. They have a divorced decree out of Russia. Father still lives in Russia. Mom had come back to the US and the child was visiting mom for the summer and had told her confide he was 13. He said, mom, I am gay and I'm very scared to go back to Russia and Russia does have some new legislation that would endanger him there and he was afraid of his dad and on and on. So we got emergency jurisdiction for him to be able to stay here, based on the grave risk exception, and we're going to stay here.

Daryl:

However, the court here couldn't make child support determinations because there was a decree is a decree out of Russia and the father still lived there. So only Russia can deal with child support issues. Oh, interesting. So we got custody here. But whatever the child support would have to be dealt with there If he had left Russia, if he wasn't living there anymore, there wasn't a prior order. Then the US could take jurisdiction over it. But because they already had jurisdiction over the case and over the person who would be paying support, we couldn't do child support here In an initial determination, like my case with Uganda. The kids are here, mom is here. There's never been another court order. We took child custody I mean child support jurisdiction as well and then got a law that we could send back to Africa.

Launi:

So the Russian one that was a modification, yes, okay, and so you can do. For in Hague cases you can do original jurisdiction or modification. Yes, okay, interesting. And then if that kid was 16, would it even matter.

Daryl:

If he were 16, so if he were 16, he's saying he doesn't want to go back, then there is no Hague. So this is where it gets very complicated, because Russia is not a signatory to the Hague, so they're not going to follow Hague convention protocols anyway. But because the kid was here in the US, I felt like, well, we signed the Hague, so we, the court system here, should follow it. And just in case, I threw in the UCCJEA, which says that it relates to foreign states as well. So the court took an emergency jurisdiction under both statutes, or the treaty and the statute, and the UCCJEA is at 18, hague is at 16,. But this is a kid saying I'm in danger, I don't want to go back. So I'm not really sure that the 16-year-old cutoff mattered.

Launi:

Yeah, that's it. It's interesting because of that, because you are dealing, excuse me, with so many countries that aren't part of the Hague, that haven't signed at least that portion of the Hague, and so you're super creative in some of the ways that you sort of bring everything together to make sure that you sort of get the best result for your client.

Daryl:

Yeah, and actually, now that I think about it, the decree in Russia had a cutoff at age 18 also, so the Hague technically didn't even apply since they didn't sign it, but it was 18 in both places, so he could have modified or applied for modification in Russia.

Launi:

So I always love the follow-ups. Have you heard from that parent yet? And is the kid doing okay here? Yeah, the kid's great.

Daryl:

And actually what ended up happening is after we got not only jurisdiction here but the child custody orders, dad's a pilot and so he flies back and forth anyway, and mom and her new husband and kid who's older than 18, they wanted to move to the Northeast. So the family actually worked it out, where mom, new husband and both boys moved to Boston and that was a much easier airport for dad from Russia to come and visit, and so they kind of all worked it out. Once dad realized the kid's not coming back to Russia, well what is going to be the best way for me to still have a relationship with him? So of course it was ugly and nasty in the beginning, but they actually worked it out and it sounds like it's a good result.

Launi:

Oh, I love that. I always love a good ending.

Daryl:

Yeah, this was a fairly new case. I think I filed it two years ago, but they just moved to Maine six months ago maybe.

Launi:

Wow, that's great. Okay, so I do have. Let me find I know I had other questions, I just get so lost in this. So can you talk about, like the removal, what that looks like, if, like, when it's okay, what's considered a wrongful removal of a child and what's not?

Daryl:

So wrongful removal means you don't have any consent from the other parent. You know that they don't want you to leave. I mean, it's what an abduction would look like. Now maybe you have your own good reasons for it and you don't consider yourself kidnapping your own child. But that's a wrongful removal, is like sneaking away in the middle of the night. Mentality Wrongful retention is the other parent allowed you to go to that country and you know, especially if it's Christmas or summer or something, they let you go there for a visit and then you say I'm not coming back.

Launi:

And how does that matter in what happens with the case?

Daryl:

Well, when it doesn't matter I mean, when it comes to the Hague Convention, it applies to wrongful removal or wrongful retention. Now, if it's the same, exceptions apply though if you get to where you're going, whether it's removal or retention. If it's dangerous for you to go back, the grave risk exception under the Hague or the temporary emergency jurisdiction under the UCCJEA, it still applies, whether it's retention or removal.

Launi:

Okay and just kind of explain it, because we didn't. We explained that in the class and I know I'm asking you way more than I said I was going to, which I do in the class too right? So if someone leaves wrongfully right and they wrongfully remove the child, then the child could automatically be forced back, is that-?

Daryl:

Yeah, so there's a mandatory return. So if okay, so let's say mom takes the child and goes to Switzerland to visit family for the summer and then says I think I'm gonna just stay here, I'm happy here, I like it here, I'm gonna stay. So dad can then contact the central authority in Switzerland and say she is wrongfully retaining my child in Switzerland. This, the US, is his place of habitual residence. I can show you here's his school records, here's this. This is the place, this is where he needs to be. So the central authority in Switzerland will then make the determination was it a wrongful, is it a wrongful retention and is the US the place of habitual residence? If so, is there any exception to mandatory return, like grave risk of the child being harmed? And if there's no grave risk, mandatory return. And so they will give mom the option to bring him back or they will have law enforcement. They can and they have sent law enforcement to pick up the child and go turn a motor to dad, and if that child 16, it's irrelevant, doesn't even matter.

Launi:

right, the Hague's not coming into a fact, it's just is what it is.

Daryl:

Right, as far as the Hague Convention is concerned, the child emancipated at 16.

Launi:

Well, thank you so much for being here. I really appreciate it. For anyone who wants to hear more from Darryl about this, she did just do a CLE so that'll be on our website and if she'll have her contact information if you have any questions, she's kind of the go-to person. She had a. You had a case in 2000,. Was it 15 or five? 2005.?

Daryl:

My very first one was in 2003 with Australia the Henry Jude Werner case.

Launi:

Okay, that's the 2003. So I'm gonna actually I'll link that, if that's okay. I'll link your website page to your cases on our podcast and she's got some great case law in there and that's kind of how she became the go-to person right and for that, because she had the appellate case and it's very interesting. So check that out and check out our website. Thank you so much, thank you.