Family Law

San Jose Divorce Lawyer Discusses Hague Convention?s Custody Provisions in News Lately

By Scott Sagaria

San Jose Divorce Lawyer Discusses Hague Convention?s Custody Provisions in News Lately

The United States is one of 68 nations that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. It provides a mechanism for the expeditious return of child wrongly taken from one member state to another. The primary purpose of the Convention is to ensure the status quo custody arrangement existing immediately prior to the alleged wrongful removal or retention thereby discouraging a parent from crossing international boundaries in search of a more sympathetic court.

California has enacted a statute specifically to deal with the issues raised under the Convention and possible child abduction. California Family Code Section 3048 requires the court to identify the basis for the court?s exercise of jurisdiction and the identification of the country of habitual residence. In cases where there is a risk of abduction, the court may, among other options, order supervised visitation, posting of a bond, restricting the right of a parent to leave the county, state or country; and/or restricting the right of the custodial parent to relocate unless he/she provides advance notice of and written approval of the move from the non-custodial parent or a court order. In determining whether there is a risk of abduction, the court must assess whether: (1) a party has previously taken, enticed away, kept, withheld, or concealed a child in violation of the right of custody or of visitation of a person; (2) a party has previously threatened to take, keep, or conceal a child in violation of the right of custody or of visitation of a person (3) a party lacks strong ties to this state (4) a party has strong familial, emotional, or cultural ties to another state or country, including foreign citizenship. This factor shall be considered only if evidence exists in support of another factor specified in this section; (5) a party has no financial reason to stay in this state, including whether the party is unemployed, is able to work anywhere, or is financially independent, (6) Whether a party has engaged in planning activities that would facilitate the removal of a child from the state, with consideration given to whether a party is carrying out a safety plan to flee from domestic violence (7) a party has a history of a lack of parental cooperation or child abuse, or there is substantiated evidence that a party has perpetrated domestic violence, or a criminal record.

The Convention provides that the court in which a Hague Convention action is filed should not consider the merits of any underlying child custody dispute, but should determine only that country in which those issues should be heard. Return of the child is to the member nation rather than specifically to the left behind parent.

Here at Sagaria Law, we offer a full range of family law legal services, from divorce and property disputes to custody and visitation matters. We handle all types of family law actions, including adoptions, guardianships, parentage, dissolution and support. We have five Northern California locations including San Jose, Redwood City, Fremont, Salinas and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today to schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com

Full post as published by California Family Law Blog on March 20, 2009 (boomark / email).