International child custody disputes are always complex, especially when one of the parents is from a country such as India that does not follow the Hague Convention on the Civil Aspects of International Child Abduction.
The Hague Convention on the Civil Aspects of International Child Abduction is a treaty that established a set of procedures for international child custody cases. Unfortunately, it only applies when both countries are members of the Convention. While the United States is a member, India is not. Indian courts are not obligated to follow the terms of a US child custody order and generally they will not.
While the situation may seem difficult, there is hope. Per the US Department of State, one of the key things to remember is not to take matters into your own hands. Attempting to take your child from one country to another without the other parent’s consent could not only jeopardize the wellbeing of your child but could harm your case and result in you facing criminal charges or incarceration.
You should speak with an attorney well-versed in the child custody laws of the applicable state in the United States as well as the laws of India.
There are many factors that need to be taken into consideration. Are you and the other parent able to reach agreements about a child custody plan or is there conflict? Was the child born in the United States or in India and what is his or her citizenship status? What are each parent’s citizenship status? Where is the child located currently? How long has the child lived in each country, and what is his place of habitual residency?
For example, a case in which a 5 year old child was born in Texas and resided in Texas until 3 months ago will be dramatically different from a case in which a child was born in India and has only been in the U.S. a short time.
At Weinman & Associates, P.C. in Austin, Texas, we have handled these and other complex international child custody cases before and are happy to provide guidance on these matters.