What rights do I have to dispute a foreign grant of custody if I live in the U.S. now?

Question:

My wife filed for divorce while we lived in Turkey. Along with the divorce she was granted sole custody of our two children who are both American citizens. I live in America again and wish to bring my children back home.

What rights do I have to dispute a foreign grant of custody? If my children re-enter the United States can I deny their mother the ability to take them out of the country again until a custody decision is made?

Answer:

Most likely, the laws of Turkey will continue to govern the custody and placement of the minor children as long as they, or their mother, continue to live there.  Additionally, you may find yourself in serious hot water, including allegations of child abduction, if you attempt to deny their mother the ability to take them out of the country again if she has custody by an order of the court.  I do not practice substantial international law, nor am I familiar with the laws governing families in Turkey, so I can only speak in generalities.

Both Turkey and the United States are members of the Hague Convention on the Civil Aspects of International Child Abduction.  The purpose of the convention was to secure the prompt return to their place of “habitual residence” children who were wrongfully removed to or retained in another contracting country.  The convention was designed to keep the courts in the abductor’s country focused on getting the child back as quickly as possible and letting that home country become the forum for deciding any substantive custody or placement issues.

As a result, although you may have the best intentions, any court in the United States will most likely not have jurisdiction.  Instead, the United States court will require that the children be returned to Turkey and Turkey would be the forum for addressing whether custody and placement should be modified.

However, you still have rights to seek a modification of a foreign grant of custody.  Turkey will have some process specified by law to govern modifications of the previous sole custody order, and the law will outline your burden.  For example, in my jurisdiction a parent seeking a modification of custody and placement generally must demonstrate a substantial change in circumstances has occurred since the last order was issued and overcome the presumption that the current arrangement is in the children’s best interest.  You will likely substantially increase your chances of success if you look to play by Turkey’s rules instead of trying to move the case to the United States.

Your options are dependent on the specific orders in your case, the circumstances of your situations, and the laws in Turkey, and in your jurisdiction.  I do not practice in Missouri or Turkey, so I cannot inform you as to their specific laws.  You should contact a domestic litigation attorney licensed in Missouri immediately to explore your options.  Cordell & Cordell has attorneys that are licensed and located in Missouri, and they would be happy to discuss your case with you.

Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.

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