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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 41220
Experience:  I provide family and divorce law advice to my clients in my firm.
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I have a family law question related to divorce and child

Customer Question

I have a family law question related to divorce and child custody.
When a couple divorces while residing overseas, I understand that the foreign court has the juridication in making the custody decision about the children based on the concept of habitual residence. Let's say the foreign country's laws and customs favor the man over the women, hence, the foreign court's custody decision is biased in favors of the father over the mother.
A few years later, all parties have moveed back and establish residency in United States. Can the mother seek to overturn the custody decision of the foreign court by revisiting the case in a US court?
Submitted: 1 year ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. Please permit me to assist you with your concerns.

The answer is somewhat complicated but generally 'yes', the other parent can return to the US and seek review. But this review has to be based on factors pertaining to how the children are being treated or fitness (or unfitness) of the other parent. Simply not liking the past judgment is not enough to overturn, there has to be a genuine basis to amend which would have nothing to do with the past perceived unfairness of the order. For example if the father is being a 'good' parent and the children's needs are being met, the courts are far less likely to amend, but if the father is unfit, abusive, neglectful, and so forth, then there may be grounds under which the local courts could issue their own ruling.

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
Dimitry,
Thank you for the reply. Let me elaborate a bit further. Let's say the foreign court's custody decision was to award the father sole custody to the exclusion of the mother. And this is based on the foriegn country's custom, and not on the fitness of either parents. In that event, once all parties establish residency in US, is there room to reexamine the original custody decision?
Expert:  Dimitry K., Esq. replied 1 year ago.

Hi,

I appreciate your follow-up. As far as your additional facts, I figured that this would be the case. But my answer would still not really change--you need to show evidence that the other parent is not acting in a 'fit' manner. But again, claiming that you were unfairly treated in a foreign court is not enough so long as state laws were not violated.

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
Thank you for the replies. I am referring to more extreme cases. For example, in Saudi Arabia, the court would award full custody to the father if the mother is non-muslim. Or in Japan, the court would generally award full custody to the japanese parent if the other is a non-Japanese. In these cases, if the parties subsequently move to and reside inUnited States, does the non-custodian parent have reasonable ground to challenge the prior foreign court custody order?
Expert:  Dimitry K., Esq. replied 1 year ago.

Hi,

No, the parent would not. That parent would still have to prove and show to a US court that the other parent is unfit. Even with a claim for favortism and legitimate bias, if the parent picked by the courts ends up being fit and competent, and the child(ren)'s needs are being met, the court won't change custody.

Sincerely,

Dimitry, Esq.