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Over-the-border custody disputes

Wednesday, July 18, 2018

International issues involving Texas go beyond disputes between this state and Mexico over trade and immigration. Separated couples sometimes have different residences in Texas and Canada, Mexico and other countries and must deal with custody and parental access matters.

Seeking a custody order is an important first step for resolving these issues. Texas parents may file a petition for a Suit Affecting the Parent-Child Relationship. A SAPCR generally governs situations where the parent is in Texas and the child resided in this state for the required six-months. This time is required to establish that Texas is their home state under the Uniform Custody Jurisdiction and Enforcement Act.

After SAPCR petition is served upon all the parties, a temporary custody order should be sought from a court. These orders are important if the other the parent tries to take children to another state.

The UCCJEA gives the court powers such as restricting passports and taking physical custody to block the removal of the child to another state or country. Courts in this country must also recognize the validity of orders issues in other countries.

If the child was already taken to another country, a parent should seek relief under Hague Convention treaty on child abduction. If the country is one of the 73 parties to this treaty, a parent must prove that Texas was child's the habitual residence through factors such as school attendance, where they received medical care and their activities. The UCJEA's six-month period does not necessarily apply.

However, it may take six to 12 weeks to serve pleadings under The Hague Convention. Parents should, accordingly, take immediate steps to restrict the time living in another country and establishing residence there.

Airports in this country will not stop a parent from departing with their children. However, foreign destinations such as Canada are very strict about allowing a child or parent enter without having the clear and notarized approval of the other parent.

Parents can also agree to practicable visitation and custody arrangements because of the expense and impracticability of frequent foreign travel. For example, the non-primary parent may have custody or visitation with the children for the summer and most holidays.

An attorney can help parents seek fair, reasonable orders and arrangements. They can also assure enforcement under laws and treaties.

Source: Texas Lawyer, "Cross-border issues are not always limited to business deals," By Ryan Kirkham. Oct. 21, 2017

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