Preventing International Child Custody Order Issues
Under the historic Hague Convention treaty, member nations are obligated to honor child custody orders from other countries that are part of the agreement. But what happens when one nation refuses to honor or enforce these orders?
We recently discovered through a highly contentious divorce case we are working on that it’s something that’s happening more frequently, especially in Japan, which was part of the treaty.
In our case, we had a trial where two Massachusetts parents were awarded joint physical and joint legal custody of their three young children. Under this state court order, both parents were ordered to have equal time with the children.
But the mother, who is Japanese, wanted permission to bring the children to Japan. All three children have dual passports for the United States and Japan. Our client, the father of the children, was concerned that if the kids were brought to Japan, that they would not come back. The mother not only has extensive family there, she also owns property in Japan.
We had our team of experts look into the Hague Convention to determine what recourse our client would have to ensure that the Massachusetts order would be enforced in Japan. What we found was rather shocking: we discovered a pattern of cases where similar orders were ignored or defied.
Despite the Hague Convention, we found many cases where Japanese authorities did not enforce member nations’ valid court orders, which resulted in children being illegally harbored in Japan, away from their parents who were justly awarded custody rights back in the United States. State department statistics we uncovered clearly showed a history of orders being violated, which was obviously very concerning to us and our client.
We took the case before a judge where we were able to establish this pattern and argue successfully that there was a high likelihood that our clients’ children would not return if they were allowed to travel to Japan with their mother.
It was a very difficult case, but the judge agreed and put appropriate protections in place. We obtained a judicial order barring the mother from taking the children out of the country. Safeguards were established, including placing the children’s passports in a safety deposit box that requires both parents’ signatures for release.
The outcome for our client was just and hopefully sets a precedent here in the U.S. Internationally, however, the issue of how to enforce orders under the Hague Convention is an open question that still needs addressing – desperately.