One of the first articles in Discussing the Law: The Online Edition discussed an international treaty that governs what country has jurisdiction in international child custody disputes. <https://danielreitman.wordpress.com/2010/01/28/the-goldman-case-tips-on-preventing-international-child-abduction/> In most cases, the child’s permanent residence controls. A new federal case addresses how this treaty applies to an unusual situation: what happens when the children are shuttled back and forth across a border.
In the new case, the parents, an American father and a Mexican mother, lived in Nogales, Mexico, where the children were born out of wedlock (limiting the father’s ability to sponsor the mother for a green card). The parents decided that the father should move to Nogales, Arizona, for a better job, and that the children would move back and forth between the countries, with the intent that they would eventually be able to be educated in the United States. They began shuttling the children back and forth, spending half the week with each parent until the relationship failed.
After a series of incidents including a two month period in which the mother refused to return the children to the father, and a subsequent period of the mother repeatedly failing to meet the father at the border to exchange the children, the father informed the mother that he would not return the children to her. The mother responded by suing in the American federal courts under the treaty for an order to return the children to her in Mexico.
As the court noted, most cases under the treaty involve either one parent taking the children from the other parent’s home country back to his or her home country after both parents have moved, or one parent failing to return from a visit to his or her home country. There are very few cases in which the parents agreed that the children would move back and forth between the parents’ home countries, and this may be the first case in which the moves were as often as twice a week.
The court ruled that the children’s permanent residence was in Arizona and that the children should not be returned without an order from an Arizona court. After discussing cases from New York, Northern Ireland, and Canada, which appeared to be the only published rulings on shuttle residence cases, the court concluded that there are three facts that had to be shown for the children’s residence to have changed from Mexico to the United States: an intent to leave Mexico and establish a permanent residence elsewhere, relocation, and passage of appreciable time after the move. It decided that these facts had, in fact, been proven, and that therefore it could not rule that the Mexican courts should have jurisdiction and order the children returned pending a Mexican ruling. The most important factor the court considered appears to have been that the parents had decided that they wanted the children to be educated in the United States.
Although every state has a law that establishes jurisdiction over children in interstate child custody disputes based on the children’s residence (and nearly all of these are based on the same draft proposed by an organization that proposes model laws), it is unclear whether, in a shuttle residence case, the courts would interpret the state law similarly. There are enough differences between the treaty and the American laws governing interstate disputes that there might be a different result. As a result, if you are in a child custody dispute involving interstate or international shuttling of the children, you probably should consult a lawyer for an opinion.