These days, families have become increasingly mobile, multi-cultural and multi-residential. When divorce and child custody enter the mix, the existing laws, and enforcement of them, create enormous hurdles. When couples that live in different states or countries file for divorce, custody rights, or paternity, interstate and intercountry family law disputes come to light, such as sister-sate and international jurisdictional issues. There are various jurisdictional agreements and laws applied in interstate and intercountry family law cases involving children, such as the UCCJEA and the International Hague Convention. In addition, there are requirements specific to pursuing interstate or intercountry adoptions as well.
Generally, interstate divorce cases are handled by determining which state has the jurisdiction to enter an enforceable order that addresses all legal issues involved, as well as which state has the proper venue if both states could have jurisdiction. Divorce laws in the United States might vary from state to state. Occasionally, both parties will file for divorce at the same time. This is called “concurrent filing”, which can result in the divorce becoming much more complicated. If the parties involved live in different states, it is important to understand the individual state laws as the laws in one state may be more favorable than the other, depending on your situation.
Most states have residency requirements before you can file for divorce. These requirements differ between each individual state and may range from 60 days to one year. Unless the residency requirements are met, your petition for divorce will be rejected. Once you have met your state’s residency requirements, you may file a petition for divorce.
If you are involved in an intercountry divorce case, it may be possible for you to file for divorce in the United States if you reside in the U.S. and your spouse lives abroad. Petitions for Divorce are filed in state courts, and most states have state-specific residency requirements that must be met prior to filing for divorce. Even if the other spouse lives abroad, you may file for divorce in the state you reside as long as you fulfill the state’s residency requirement.If you are involved in an intercountry divorce case, it may be possible for you to file for divorce in the United States if you reside in the U.S. and your spouse lives abroad. Petitions for Divorce are filed in state courts, and most states have state-specific residency requirements that must be met prior to filing for divorce. Even if the other spouse lives abroad, you may file for divorce in the state you reside as long as you fulfill the state’s residency requirement.
In most cases, a Petition for Divorce must be personally served on the other party, which can be difficult when the party to be served lives in another country, thousands of miles away. There are ways to address this potential issue, such as hiring a foreign process server. Alternatively, if you and your spouse are cordial and cooperative, your spouse can agree to waive personal service. If your spouse waives personal service, they must send you a signed waiver to file with the Court. Once the waiver is filed, personal service is not required and service by email, fax, or mail is valid.
Interstate Custody Disputes
Although each state awards child custody and visitation based on the child’s best interests, each state uses a slightly different interpretation. For example, some states may favor sole physical custody while others may award parents shared custody of a child. When child custody disputes cross state lines, such as a move-away case involving one party’s unauthorized move-away with the child to another state, they become a much more difficult matter.
There are a number of laws and acts that have been passed with the intent of aiding interstate child custody disputes. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) for example, lays out the rules put in place to determine which state can make orders regarding children. The UCCJEA was intended to create uniformity in custody decision-making among the states involved. It is presently enacted in California and in 48 other states, with Massachusetts being the exception.
If you find yourself involved in an interstate custody dispute, there are actions you can take to maintain a close, positive relationship with your child(ren). For example, during periods of time spent apart, regular phone calls and video chats help keep the bond between child and parent strong.
Intercountry Custody Disputes
Taking it one step further, intercountry custody disputes are even more complex and require a degree of global sophistication that few family law firms can muster. When resolving custody disputes across international boarders, the process begins by filing a request with the U.S. State Department. The State Department then forwards an official request to the foreign ministry of the country in question. This is usually a slow process, as legal differences between the two countries are resolved.Taking it one step further, intercountry custody disputes are even more complex and require a degree of global sophistication that few family law firms can muster. When resolving custody disputes across international boarders, the process begins by filing a request with the U.S. State Department. The State Department then forwards an official request to the foreign ministry of the country in question. This is usually a slow process, as legal differences between the two countries are resolved.
Intercountry custody cases are not common. They include countries that adhere to the Hague Convention on parental responsibility and protection of children, as well as countries that are not Hague Convention signatories. In addition to the laws themselves and whether the nation you’re dealing with is part of the Hague Convention or not, there may be nation-specific religious or cultural beliefs to consider that may influence the outcome of your case. When international custody cases do arise and the well-being of the child, who may be held by duress, is at stake, you want the best legal minds guiding you to a satisfactory outcome.
In the state of California, the rights of both the birth parents are taken into consideration when an adoption is being processed. Generally, the signatures of both birth parents are required, and if the child is over age 12, the child may also consent to his or her own adoption. When a couple is looking to adopt a child from a different state, the adoption is governed by the Interstate Compact on the Placement of Children (ICPC), a law enacted in all 50 U.S. states, as well as the District of Columbia and the U.S. Virgin Islands. A guide to the ICPC, provided by The American Public Human Services Association, can be found here.
Additionally, prospective adoptive parents need to also comply with the laws of the sending State (the state where the child lives). For an overview of adoption laws that apply to interstate adoptions, you can review a summary of state laws on domestic adoption.
Intercountry adoption is the process of adopting a child from a country other than your own through permanent legal means, and bringing that child to your country of residence to live with you permanently. The process varies greatly, as intercountry adoptions are governed by three sets of laws: the laws of the child’s country of residence, the laws of your U.S. state of residence, and U.S. federal law. Additionally, the Hague processes of both countries must be followed if the child’s home country is a partner in the Hague Adoption Convention.
As with any form of adoption, there are eligibility requirements put into place when trying to adopt a child. The first step to determine if you are eligible for intercountry adoption is to file an application with U.S. Citizenship and Immigration Services, which will include a home study. The necessary forms required to pursue intercountry adoptions are provided online, by the U.S. Department of State, Bureau of Consular Affairs.
Finding The Right Attorney
When going through a complex family law dispute, hiring an experienced family law attorney is in your best interest. A divorce, especially when interstate or intercountry, involves a detailed legal and financial analysis. Additionally, if children are involved, the complexities of child custody disputes must also be addressed. Shulman Family Law Group, one of Southern California’s leading family law advocates, has unique experience handling international and interstate family law cases, such as interstate and intercountry divorce, cross-border custody enforcement, interstate and intercountry adoptions, move-away cases, and jurisdictional controversies across the United States and worldwide.
In addition to being recognized as a California Super Lawyer in 2014-2017, Maya Shulman, founder and principal attorney of Shulman Family Law Group, has recently been selected to the 2018 Southern California Super Lawyers list, an honor reserved for those lawyers who exhibit excellence in practice. Only 5% of attorneys in Southern California receive this distinction. As well as being a five-time Southern California Super Lawyer,Maya also earned the designation of “Southern California Rising Star” family law attorney, from 2004 – 2005 and 2007 – 2010 and has earned Los Angeles Magazine’s honor of “Top Woman Super Lawyer,” since 2014.
Having extensive state-specific knowledge of custodial law, in addition to a national and international global network of family law experts and professionals to tap into depending on the needs, jurisdictions and geographies of their clients, the attorneys at Shulman Family Law Group can ensure that your case is properly handled and that your rights are protected.