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First Things First: Who Has Jurisdiction in Custody Case?

By Robyn Hagan Cain on November 19, 2012 3:01 PM

We always think of the "best interest of the child" as the critical issue in a child custody case.

In an international custody battle, however, the most complicated issue may be which country's court system should decide the case.

Iain Walker, a citizen of Australia, sued under the International Child Abduction Remedies Act (ICARA) in an effort to compel his wife, Norene, a U.S. citizen, to return the couple's three children to Australia.

ICARA implements the Hague Convention on the Civil Aspects of International Child Abduction. The Convention -- to which both the United States and Australia are parties -- "entitles a person whose child has wrongfully been [retained in] the United States ... to petition for return of the child to the child's country of 'habitual residence,' unless certain exceptions apply."

The district court denied Iain's petition. It found that -- notwithstanding the fact that the Walker family lived in Australia from 1998 until 2010 -- the children's habitual residence had become the U.S. by the time Iain filed his petition. In addition, as the court saw it, Norene's act of keeping the children in the U.S. could not have been "wrongful" within the meaning of the Convention for two reasons: first, Iain was not exercising his custody rights at the relevant time; and, second, Iain had consented to the children's remaining in the U.S. permanently.

Iain challenged all of the rulings on appeal.

The Seventh Circuit Court of Appeals concluded that the record did not support the district court's decision, and that a remand was necessary to resolve the case.

Here, the conflict centers on the children's habitual residence because that will determine whether a court in the U.S. or in the Australia should make the custody ruling. The Seventh Circuit emphasized that this is not a dispute about which parent is preferable or the terms under which custody will be granted.

While the best interest of child is ultimately the most important determination in a custody battle, the first step in an international custody battle is deciding which country's court system has jurisdiction.

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