Month: May 2026

Hague Child Abduction and Child Custody

Posted by Ron Kauffman on

How important an international child custody rights determination in a foreign country can be for two American parents became the deciding factor in a Hague Child Abduction case. A recent federal Hague Convention decision proves a return petition can fail even when a court finds a child’s habitual residence was Japan before the child was removed.

hague child custody rights

Turning Japanese

The Mother and Father, both Americans, met in May 2022 while working at Al Udeid Air Base in Qatar for the U.S. Air Force. They visited Mother’s brother and their nieces in Japan, and enjoyed the food, culture, and cleanliness of the country. Upon returning to the U.S., their child was later born in Colorado.

They discussed moving to Japan because they wanted a healthy future for their daughter, had looked at schooling, and read statistics on child education in Japan, which ranked high.

 

On January 6, 2025, the family relocated to Misawa, Japan. By May 2025, the Mother asked for a divorce and started sleeping in another bedroom in the home. A few weeks later, when the child was then 18 months old, the Mother moved to Washington state.

The father filed a Hague Convention petition seeking the return of their infant daughter to Japan arguing Japan was the child’s habitual residence and he had custody rights under the laws of Japan.

Florida Hague Child Abduction

I have spoken and written about the Hague Abduction Convention and international child custody issues before. The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.

The International Child Abduction Remedies Act is the statute in the United States that implements the Hague Abduction Convention. Under the Act, a person may petition a court for the return of their child to her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.

To establish a prima facie case a court must make find that the state in which the child was habitually resident immediately prior to the removal or retention is where Petitioner resides and the law of the state of habitual residence; and that the petitioner was exercising those rights at the time of the removal and removal breached the rights of custody.

Big in Japan

The trial court agreed with the father on several important points. It found that the American child was habitually resident in Japan, and that the father had custody rights and was exercising them at the time of removal. Ordinarily, those findings would be powerful evidence in favor of return. But the petition failed on a different element: breach.

Under the Hague Convention, a removal is wrongful only if it breached the Father’s the rights of custody under the law of Japan. The mother presented unrebutted expert testimony that, under Japanese law, if the primary custodian removes the child without force, and the child does not object, the removal does not infringe the other parent’s custody rights.

The trial court found that the mother had been the child’s primary custodian during most of the family’s time in Japan, that there was no evidence the mother used force to remove the child, and no evidence the child objected to leaving Japan.

The trial judge concluded that the father had not proven removal breached his rights of custody rights under the law of Japan, and denied his return petition.

The case is a reminder that Hague Convention cases are not ordinary custody cases and the law of the child’s habitual residence still matters, even if it is the child custody law of another country.

The order is here.

International Child Custody Emergency Jurisdiction

Posted by Ron Kauffman on

A court’s ability to exercise international child custody on an emergency basis is in the news after a father requests a Texas court to exercise jurisdiction over his nine-year-old child and return her after she was removed from Mexico by the Mother.

UCCJEA Emergency Jurisdiction

 

Adiós México

A Mexican father filed a case in Texas alleging his child lived her entire life in Mexico, that Mexico was her home state, and that the mother removed the child to Texas without his consent. The father argued at trial that the child was in the United States on a tourist visa, enrolled in school in a manner inconsistent with that visa, the mother had uncertain immigration status, she’d been arrested in Texas, and there were custody proceedings already pending in Mexico.

He asked the Texas court to name him primary conservator, authorize the child’s return to Mexico, consider abduction-prevention measures, order child support, and issue a writ of attachment for the child.

The mother argued that Mexico was the child’s home state, that two custody proceedings were pending in Mexico, and that no Mexican court had declined jurisdiction. The Texas trial court nevertheless denied her jurisdictional challenge and entered an order exercising “temporary emergency jurisdiction.”

The family court allowed the father to take immediate possession of the child, return the child to Mexico, and present the child to the Mexican courts. The next day, the court issued a writ of attachment. But then the mother filed for mandamus relief in the appellate court, which stayed the trial court’s order, then conditionally granted mandamus

Florida UCCJEA Emergency Jurisdiction

I have written and spoken on many issues related to the UCCJEA as a family law attorney. Later in the year I will be presenting an introduction to the UCCJEA for foreign lawyers in Madrid, Spain.

The UCCJEA is a uniform act created to avoid jurisdictional competition and conflict with other courts in child custody matters. The UCCJEA also promotes cooperation with other courts and ensures that a custody decree is rendered in the state which is in a superior position to decide the best interest of the child. The UCCJEA helps to facilitate enforcement of custody decrees; and has the aspirational goal of promoting uniformity of the laws governing custody issues.

Under the UCCJEA one state is a child’s home state, and the home state keeps exclusive jurisdiction to modify the custody arrangement unless, for example, the child is another state and there is an emergency

The UCCJEA provides for temporary emergency jurisdiction over child custody “if the child is present in this state and … it is necessary in an emergency to protect the child because the child … is subjected to or threatened with mistreatment or abuse.”

¿Cuándo volverás a México?

The appellate court found there was no evidence that the child had been abandoned, and no evidence of an emergency involving mistreatment or abuse. Importantly, the court said the UCCJEA’s emergency provision does not convert immigration concerns, possible deportation, separation from a parent, criminal charges, or lack of contact into “mistreatment or abuse” without more.

The court also noted a procedural problem. When a court exercises temporary emergency jurisdiction while another state or country has jurisdiction, a family trial court has to determine whether there is a prior custody determination and must communicate with the court having jurisdiction which was not done here.

Temporary emergency jurisdiction is an important aspect to intervene when a child is in a state and is subjected to or threatened with mistreatment or abuse. But if the case facts don’t show abandonment, mistreatment, abuse, or a concrete threat of immediate harm, a writ of attachment and return order may be vulnerable on appeal.

The Texas Court of Appeals opinion is here.

Child Custody and Religious Camp

Posted by Ron Kauffman on

Can a parent with child custody stop the other parent from enrolling a child in a religious camp during that parent’s summer timesharing? The Nebraska Supreme Court recently answered that question, and the answer is important for every child custody dispute involving religion.

Religious camp custody

Reason to Believe

The parents were married in 2010 and had two children. They stipulated to a property division and agreed to joint physical custody on a rotating schedule giving each parent equal time.

However, the parties could not agree on one aspect of child custody, the children’s involvement in the Father’s church, and whether the children could attend a church-affiliated overnight camp during the Father’s parenting time.

The Father wanted joint legal custody and testified that the parties agreed on most things. The Mother wanted sole legal custody, saying she had handled most major child-related decisions and did not trust Jacob with big decisions because of his dishonesty about an affair and communication problems.

While both parents had been raised in the religion associated with Jacob’s church, the Mother left the church about five months before filing for divorce, objected to some of its teachings and disagreed about continued church attendance.

The church camp included Bible classes, crafts, activities, nature, and religious themes, but the camp director testified that children did not have to be affiliated with any religious organization to attend and that the primary focus was fun, friendship, and independence.

The Father’s parents lived on the camp property as caretakers; he had attended the camp, served as a counselor, sat on the camp board, and described the camp as a major part of his life and faith development. The Mother had also enjoyed the camp as a child but later opposed the children attending that church camp, even during Father’s timesharing, but did not object to a nonchurch camp.

At trial the court awarded the Mother sole legal custody, allowed the Father to discuss religion and involve the children in church activities, but ruled church camp was to be decided by the Mother as sole legal custodian.

The Father appealed.

Florida Child Custody and Religion

I’ve written about the intersection of religion and divorce. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes has grown over time in various cases. Why?

Because placing restrictions on a parent’s right to expose his or her child to religious beliefs has consistently been overturned by courts in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child.

Generally, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent. Religious practices can be restricted, however, when there is a clear, affirmative showing that they “will be harmful to the child.”

Nebraska

The Nebraska Supreme Court recognized the family judge heard the conflicting evidence, observed the witnesses, and ultimately concluded that sole legal custody should be placed with the Mother because joint legal custody would not be in the children’s best interests and affirmed the grant of sole legal custody.

However, the high court also recognized that fit parents have constitutional rights when it comes to their children’s religious upbringing.

Accordingly, a court can only restrict a parent’s religious practices with a child only when those practices pose an immediate and substantial threat of harm to the child’s temporal well-being. Any restriction must also be narrowly tailored.

At trial, the family judge found little or no evidence that the father’s religious practices harmed the children and also found no basis to restrict him from discussing his beliefs or involving the children in church activities during his parenting time.

Given those findings, the Supreme Court concluded there was no basis to let the mother veto the children’s attendance at church camp during the father’s parenting time. The Nebraska Supreme Court case shows a constitutional limit to a parent’s designation of sole legal custody.

The Nebraska Supreme Court opinion is here.

UCCJEA and Wrongful Removal

Posted by Ron Kauffman on

Does a Montana court have UCCJEA jurisdiction to order a parenting plan over a Montana child after the wrongful removal of a child to another country if a parent delays more than a year after trying to legally return the child? The Supreme Court of Montana just addressed that international child custody question.

UCCJEA Montana 2

Little Trouble in Big Sky Country

In 2020, the parties and child moved from Colorado to Montana. Beginning in June 2022 until May 2023, the child resided and attended public school in the Netherlands. But then in May 2023, the child and Mother returned to Montana so the Mother could reconcile with the Father.

On August 11, 2023, the Mother abducted the child without the knowledge or consent of the Father, and returned to the Netherlands. On February 13, 2024, the Mother filed a divorce and custody petition in the Netherlands.

On January 17, 2025, the Father filed a petition to return the child to the USA in a Dutch Court, using the Hague Abduction Convention. His petition was denied, with a conclusion that it was filed more than one year from the wrongful removal, and the child was now settled in the Netherlands.

However, the Dutch court also found that the Mother’s removal of the child from Montana was wrongful, meaning the United States was the child’s “habitual residence”.

The Father’s appeal in the Dutch courts was dismissed. In September of 2025, Father filed an Emergency Motion for Temporary Custody and Petition for Permanent Parenting Plan in the Nineteenth Judicial District Court (Montana District Court).

The Montana District Court dismissed Father’s petition and motion based on its conclusion that it did not have jurisdiction to overturn the decision of the Court of Appeal of The Hague and that Montana is no longer the “home state” of the child since she had not resided in Montana for more than two years before Father filed this action in Montana.

Father filed his notice of appeal of the Montana District Court’s order with this Court in early October.

Florida UCCJEA

I have written about international child custody issues before. The UCCJEA is a uniform act drafted to avoid jurisdictional competition and conflict with other state courts in child custody matters; promote cooperation with other courts; ensure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid re-litigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing custody issues.

Montana and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child. That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Montana. The ultimate determining factor in a Montana case then, is what is the “home state” of the child.

In Florida, the “home state” of a child means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

Back to Dutton Ranch?

Relying on the UCCJEA, the Montana Supreme Court found under the UCCJEA, priority is given to “home-state jurisdiction for child custody proceedings, under which a state has jurisdiction if it is the child’s ‘home state.’”

A child’s “home state” is “the state in which a child lived with a parent or a person acting as parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.”
Here, Montana was no longer the child’s “home state” as defined by the UCCJEA. Father filed his petition and motion for emergency custody in early September 2025, nearly 25 months after the child was last in Montana.

Father did not file a Hague petition for the return of the child until approximately a year and a half after the child was wrongfully removed from the United States. It is unclear why Father delayed filing a Hague petition for so long.

However, the Netherlands District Court suggests that the parties were negotiating travel and parenting arrangements for the child uring this time. Nonetheless, during that delay the child became settled in her new environment in the Netherlands as the District Court of The Hague concluded and the Court of Appeal of The Hague affirmed.

Montana lost home-state jurisdiction since she had not resided here for the preceding six months before Father filed for custody in the Montana UCCJEA. Under ordinary circumstances Montana courts should treat a foreign country as if it were a state of the United States for the purposes of applying the UCCJEA according to the plain language of the statute.

Finally, the Father failed to point to any legal authority whereby a finding that a child was wrongfully taken from her place of habitual residence, yet now settled in her new environment, overrides a judgment of another jurisdiction that it may properly exercise child custody jurisdiction.

The Montana Supreme Court affirmed the Montana District Court and concluded the Father must pursue his parenting interests in the Netherlands District Court because he waited approximately a year and a half before taking legal action to return his child to Montana, and as a result Montana lost child custody jurisdiction.

The opinion is available here.