Child Custody

Parental child abduction. Parental child abduction is an international child custody problem of major proportions. The problem of child abduction may arise in a variety of situations. A parent dissatisfied with a custody decision may take the child to another country. Often that parent may be a national of the country to which he takes the child. Also common is when a noncustodial parent who lives in another country may refuse to return a child after authorized visitation in that country.

Historically, the parent violating the custody order often prevailed: a child custody order is not final and, therefore, may be modified. Because jurisdiction is based on the presence of the child, the court where the noncustodial parent lives has jurisdiction to redetermine the issue of custody. Sometimes that court, based on incomplete information provided by the absconding parent or applying standards different from those of the jurisdiction where custody between the parents was determined originally, has changed the custodial determination to favor the absconding parent.

In 1988, to remedy this situation, the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) was completed. It has been ratified by more than sixty nations. It is modeled after United States legislation that requires a state to honor the custody award of the child's home state. The Hague Convention is actively used, but the numbers of children abducted to foreign countries continues to grow, partly because of the increase in binational marriages.

One of the major criticisms of the Hague Convention is that it does not protect mothers who are victims of domestic violence who flee a country for safety (Sapone 2000). Changes to remedy this problem are being considered (Weiner 2000).

Visitation. When one parent has sole physical custody, which is the situation in the majority of the cases, the other parent is entitled to spend time with the child during what is usually called visitation. Visitation is usually regarded as a right of the noncustodial parent to which that parent is entitled unless visitation would seriously harm the child. Therefore, a custodial parent who objects to visitation by the noncustodial parent has the burden of showing that the child would be harmed by contact with the child's other parent.

Difficult situations are presented to those who must make decisions when the conflict between the parents is so great that the children are drawn into it and object to seeing a parent because they have, in effect, taken the view of the parent with whom they live. However, even when children object to seeing their noncustodial parent, most courts will order visitation.

The prevailing rule that the noncustodial parent has a right to see and spend time with the child, absent a showing of some type of harm to the child, reflects a public policy recognizing that continued contact with both parents is desirable. It has been argued that stability and a positive relationship with one parent are the most important factors in the development of a child and that parental conflict over the noncustodial parent's time with the child is so divisive that it ought to be controlled by the custodial parent (Goldstein, Freud, and Solnit 1979). Nevertheless, the weight of social science research supports the value of continued association with both parents (Maccoby et al. 1993; Kelly and Lamb 2000). Continued contact with a noncustodial parent is important to a child in terms of both social and financial support. Evidence suggests, for example, that noncustodial parents who visit their children more frequently also pay more child support (Anditti 1991; Dudley 1991; Seltzer, Schaeffer, and Charng 1989).

Enforcement of visitation. When the custodial parent interferes with or prevents visitation by the noncustodial parent, the principal remedy of the law is contempt of court with a fine or imprisonment. Such a severe remedy against a custodial parent is rarely used. In the United States, some courts and legislatures have provided for the reduction or withholding of child support in response to visitation infractions (Czapanskiy 1989). Unfortunately, such a remedy primarily affects the child.