Family court matters are litigated on the state level in the United States, so there are 50 different sets of laws to consider when approaching international custody rulings. To further confuse issues, there is no international custody treaty that is globally accepted. When a parent moves abroad, a custody ruling could be interpreted in any number of ways, depending on who wants to move and what foreign country is involved.
Parents who make plans to relocate with a child have to get the consent of the other parent or the approval of the family court in most states and U.S. territories. If the mother wants to move to a neighboring state or abroad and the father objects, she will have to petition the court for approval. Family court judges in the U.S. base decisions in custody rulings on what is in the best interest of the child. If the mother wants to move to China, but the child is accustomed to spending every other weekend with her father, a judge may rule that separating the child from her father is emotionally detrimental to the child. The fact that the mother's financial future is much brighter in China than the U.S. will not hold as much weight as the child's welfare. The courts apply the same standards to all relocation decisions, but judges might closely scrutinize the conditions surrounding a proposed move abroad.
The Uniform Child Custody Jurisdiction and Enforcement Act covers jurisdictional issues across state lines, but it is not a reciprocal law. States must apply its principles when dealing with custody orders from other states and foreign nations. However, because there is no uniform law, the foreign nation does not have to honor the state's rulings. If no order exists before a parent moves a child overseas and gets an order in another country, the order usually will be recognized in the United States -- unless the United States has been the habitual residence of the child and the other parent claims the child was wrongfully taken. However, the reverse is not always true. Although many foreign countries cooperate with the United States and will honor and enforce custody orders from the U.S., some will not. Parents grappling with custody issues involving an overseas move often find themselves in uncharted waters.
Much of the legislation that exists regarding international child custody involves parental kidnapping. The primary treaty, the Hague Convention on the Civil Aspects of International Child Abduction, focuses on returning a child who has been wrongfully removed from his home country back to the child's "habitual residence." The Hague Convention encourages international courts to cooperate to get the child back home regardless of how she was wrongfully moved. The act does not have to violate custody orders or be illegal to fall under the Hague Convention. However, many countries are not members of the Hague Convention. The U.S. passed the International Parental Kidnapping Crime Act (IPKCA) of 1993 to fill the gaps left by the Hague Convention. According to the IPKCA, it is a federal felony to take a child under the age of 16 out of the U.S. or keep the child in a foreign country with the intention to obstruct the lawful exercise of parental rights.
Many foreign countries will not enforce U.S. support orders. A parent who moves abroad might avoid prosecution for not making child support payments. However, the Hague Convention on the International Recovery of Child Support and Family Maintenance, signed in 2007, seeks to make international enforcement possible. The Hague Convention has the support of the U.S. delegation, but has not been ratified by the U.S. Congress at the time of publication. Many foreign nations will cooperate in enforcing U.S. child support orders and parents can pursue private legal actions against non-compliant parents in other countries. State governments are authorized to enforce child support obligations through Title IV-D of the Social Security Act within the United States and the Uniform Interstate Family Support Act. One of the tools the U.S. can use to stop non-compliant parents from leaving the country is to deny a passport to anyone who owes past-due support of more than $2,500. The U.S. can also seize the tax refunds of anyone who is behind on child support payments.