With close connections, both culturally and economically, to the Caribbean, Central America, South America and beyond, South Florida is a truly international region. The impacts of that are felt in many areas, including in family law. For areas (like here) where family law disputes cross not just state but national boundaries, it is essential to have a knowledgeable South Florida family law attorney who understands all of the laws that go along with child custody cases, including international custody cases.
One of the most important pieces of law when it comes to certain international custody disputes is something called the “Hague Convention.” While that treaty officially covers the topic of “international child abduction,” its effect on family law goes beyond just kidnapping cases. It also has the ability to impact a substantial array of child custody disagreements.
That treaty had a major impact on one Brazilian couple’s custody dispute, which was recently litigated here in Florida. The parents had married in Brazil in 2010 and welcomed a child in 2012. In 2016, the father, the child and the mother (who was pregnant with child #2) traveled to Florida so the father could advance his medical career by participating in a cardiology fellowship, and so the mother could deliver the second child in the United States.
Unfortunately, the father’s fellowship fell through, so he returned to Brazil to re-establish his medical practice there and to prepare a home for the whole family, which now included a new baby. After the husband got everything ready, though, the wife refused to return to Brazil and instead remained in Florida with their two children.
After the mother took that step, the father filed an action asking the Florida courts to order the mother to return the two children to him in Brazil in accordance with the Hague Convention. The mother, the father argued, had wrongfully retained the children in Florida and was legally obligated to return them to Brazil.
In a case of “wrongful retention” like this, the father needed proof of three things: (1) that “the children were habitual residents of Brazil at the time they were retained by the Mother in the United States;” (2) that “the retention of the children by the Mother was in violation of the Father’s custody rights under Brazilian law;” and (3) that “the Father had been exercising those custody rights at the time of the retention.” Both parents agreed that requirements #2 and #3 were true. The only thing in dispute was the first of these three requirements.
The importance of ‘habitual’ residency
The outcome of this case serves, among other things, as a reminder that court cases may sometimes yield results that can seem very counterintuitive to those who are not well-versed in that area of law. For instance, in this case, the couple’s younger child had never lived even a single day in Brazil but was ultimately found to be a “habitual resident” of Brazil.
How is that possible? It was possible because the only options were either Brazil or the United States. In this case, the bulk of the evidence supported the father’s contention that neither he nor the mother intended the move from Brazil to Florida to be a permanent thing. When a family travels to a country on an expressly temporary basis, then the country to which they traveled generally cannot be a “habitual residence” under the Hague Convention. Since that meant the United States could not possibly be the children’s habitual residence, Brazil necessarily was.
Whether your long-distance child custody case crosses county borders or country borders, your relationship with your children is too important to leave anything to chance. Protect that relationship by retaining the skilled South Florida family law attorneys at Sandy T. Fox, P.A., who have been successfully helping parents for many years to resolve their child custody and other family law issues. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation today.