Q All I want is custody of my children. Can I give up everything, take my children back to India and live with my parents or family?
A This is a very common question posed to divorce attorneys by Indian female clients. The term “international child abduction” is generally synonymous with international parental kidnapping. The term legally applies when a parent is considered to have illegally removed a child or children from a place of habitual residence in violation of custodial rights of the other parents.
At the outset, note that Summons issued in a California Divorce—as part of standard restraining orders—prohibit a party from removing child(ren) from the state. A violation of such standard restraining orders is punishable by law. Simply put, if you have been served with divorce documents, it is too late to ask the fore-mentioned question. You must stay in California and comply with the law.
Many people living in the United States also wonder if they are subject to the divorce laws of California. The answer is very simple: if you live in California, or any state for that matter, you are bound by its law.
If one breaks the law and removes the child(ren) without court permission, the Office of Children’s Issues at the State Department assists in cases of international parental child abduction. International parental child abduction is a crime in every state and the District of Columbia. In some cases, the parent involved may be charged with a crime.
However, if the child is removed by the parent from California before the divorce petition is filed, then it could be a different story; especially if the child is not a United States citizen. One can file a divorce petition in the home country, serve the other spouse in the United States first and also request the court in the foreign country to decide on the issue of child custody. As luck would have it, the laws regarding service of process in California are more cumbersome and lengthy compared to such laws of a similar topic in India.
If you and your child are citizens of India, you could beat the other spouse by filing for a divorce in India first. In this case, the person who has “abducted” the child may have a “home court” advantage if the proceedings take place in India, and if the home country has a gender-based cultural bias—which in my opinion, India does have. In India, a spouse has to show grounds for divorce whereas California is a no-fault state. India is also not signatory to The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) which provides that a child who is habitually resident in a country, and has been removed to or retained in another country in violation of the left-behind parent’s custodial rights, the child(ren) should be promptly returned to the country of habitual residence.
So, tread carefully, and get advice from a good lawyer.
Madan Ahluwalia is a California attorney who practices law in San Jose, CA. His website is www.attorneyonradio.com. He can be reached at (408) 416-3149.