Legal Question in International Law in Ohio

Re: getting custody of U.S. citizen born and living in canada

Your message has a stated date of July 8th, and it was only posted for replies today, 9/8; I deplore the delay.

This is a very complicated area, and I am an international transactional lawyer rather than one who specializes in child custody matters. However, I will share what I know.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction is a treaty to which both the U.S. and Canada are parties. I do not know of any bilateral treaties between the two countries. Under the Hague Convention, the habitual residence of the child is the key to jurisdiction. Here, your question states that the child was born in Canada and you imply that the child remains there, while you wish to take the child to the U.S. and the mother wants to keep the child in Canada.

Under those circumstances, you will have to subject the matter to the Canadian courts, and the treaty mandates recognition by U.S. courts if custody is awarded to the mother in Canada; if you were to remove the child to the U.S., a U.S. court would be obliged to order the return of the child to Canada.

There are defenses under the treaty for circumstances of abuse such as you describe. However, you would need more than unsubstantiated fears in order to convince a U.S. court not to order the return of the child to Canada (even if you were somehow to succeed in removing the child to the U.S.). Particularly where the other country is Canada, which has a very good judicial system, a U.S. court is unlikely to find that a Canadian court has totally erred in awarding custody.

Best wishes,

LDWG