Dear Nattu,

I have some grave concerns here. First, it seems strange to me that he would want to travel to India to get a divorce since he lives here. Shall we assume he does not plan on returning? Or, if he agrees to custody to you, in Inda, then brings the children back here, it is possible that the US court would not uphold the Indian's custody order, given jurisdictional issues, and the husband could feasibly file for custody here. Of course, if you were here, you would simply engage in a custody battle here. I guess the question remains, why does he want the divorce in India? Here are some factors for you to consider.

India is not a signatory to the Hague Abduction Convention. Because India is not party to the Convention, the Convention is not available as a remedy for an international parental child abduction case to India. Click here for more on that:

http://travel.state.gov/family/abduction/Solutions/Solutions_3854.html

My understanding it that, Indian courts rarely grant custody to a parent residing outside of India,(even if both the child parent are American citizens). So, it may be more difficult to retain custody if you get it ordered over in India, but plan on returning to the states with the children.

The consent of a non-traveling parent is not required for the child to depart India, so the father could take the children back to the US with relative ease, despite your opposition. However, the US has firmer rules prohibiting the taking of the child out of the country without consent - so if you were in India, he could keep the children in the US. Even India, who is not a signature on Hague, would be unable to assist you in getting your children back.

Apparently, there is no formal process for registering a foreign custody order with the courts, and U.S. custody orders are not automatically enforced in India. If one is presented, the Indian court is likely to take it into consideration; however, in practice, U.S. court decisions are almost never upheld in Indian courts. Therefore, if you got your custody order herein the US, you may want to make sure that you do plan on staying here and not returning to India. This makes me think that perhaps the father wants to have it ordered in India, since perhaps he plans on staying there and that way he could keep custody.

With respect to conditions of custody, custody decisions are made "in the best interests of the child," using as the primary consideration the welfare of the child: the ability to support the child financially, any history of abuse, etc.

India has laws authorizing courts to award custody in the case of divorce, but the laws do not contain substantive guidance for custody determinations - case law does (see Sharma v. Sharma, Supreme Court of India - February 16, 2000). For the laws related to custody, please see the India Code Legislation Web site and search for "The Guardians and Wards Act" and "Hindu Minority and Guardianship Act" under "short title."

Parental child abduction is not a criminal offense in India. Although India will extradite its own citizens subject to an Interpol arrest notice if the crime is covered by the U.S. Extradition Treaty with India, which was signed in 1997 and went into effect in 1999, this is not an available remedy in parental child abduction cases because India does not recognize it as a crime.

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Hope this helps to clarify.

I believe I have answered your question and I hope you a better understanding of your legal issue as a result. As you know, I am only the messenger, not your attorney, nor can I create favorable law if it doesn't exist, so please don't hold it against me if the legal result is not what you wish. If your question was in fact answered appropriately please click the GREEN "ACCEPT" button NOW, in order that it be recognized as such and I receive credit for my work from the company. Doing so ensures I will be willing to assist your with your future legal question. In addition, Positive "FEEDBACK" and BONUSES are also appreciated. If you need additional related follow up on this particular question afterward clicking ACCEPT, don't hesitate to click "Reply" and I will be happy to help you. And if you would like my assistance in the future, just put my name, STEPHANIE JOY, in your title or first sentence of a new post. Please keep in mind that I can only respond to your post and the information contained in it, as I do not know what you know unless you describe it fully. Also, due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so I apologize in advance if it means more interactions between us. At times, there can also be a delay of an hour or more in between my answers because I may be helping other customers or taking a break, or if it is late at night, I may have to go get some shut eye til morning, but rest assured, I'll be back for you. Thanks

Sincerely,

S. Joy, Legal Expert

My Standard and Required Legal Disclaimer. The information given by me here is not legal advice. You should not and may not rely on anything on this website as legal advice and you agree that the nominal price you may voluntarily pay for information here clearly does not pay for any legal advice. I am neither establishing nor accepting an attorney-client relationship with you. You must hire an attorney in your state as a matter of law, in order to receive legal advice and attorney/client relationship and rights. I do not claim to be licensed to practice in the state where this information is being provided or whose law would apply, if any. My licensing credentials are noted in my profile, which you have full access to. As law is always changing, you are recommended to consult with the appropriate legal counsel in your jurisdiction for accurate and complete information. Thank you, XXXXX XXXXX a great day.

Hi nattu,

I understand. It is terribly uncertain, in my mind, when we are dealing with international custody issues. It may help him to know (and you) that alimony is not permissible in India. See this article here. There is also child support provisions as well. I do understand that if your children are under 5, custody may be more readily provided the mother, in India, and that older than 5, it often depends on gender, as a practical matter.

These are not easy choices. Have you both considered seeing a private mediator for the purpses of coming to an agreement that would be enforceable in either country, on all of these issues? That way it would be less of a concern, as to what the courts would order. Just be careful about those laws that don't prevent him from coming back to the US with the children (if you plan on staying in India), despite any orders. You may want to consult with an immigration atttorney, actually, who is proficient with international custody and divorce on top of it. He may be able to devise a more ironclad arrangement to better protect the two of you.

I am not a Hindu or India lawyer. However, as noted above, India does not recognize Hague Convention and does not criminalize kidnapping by a parent. That leaves you with less protections if he decides to do something silly, like take the kids out of India, potentially. Regardless, as well, I do not think India is going to Order that he can have no inclusiion in the children's lives - India does recognize the importance of the father child relationship as well as the mother child relationship.

Hope this helps to clarify.

I believe I have answered your question and I hope you a better understanding of your legal issue as a result. As you know, I am only the messenger, not your attorney, nor can I create favorable law if it doesn't exist, so please don't hold it against me if the legal result is not what you wish. If your question was in fact answered appropriately please click the GREEN "ACCEPT" button NOW, in order that it be recognized as such and I receive credit for my work from the company. Doing so ensures I will be willing to assist your with your future legal question. In addition, Positive "FEEDBACK" and BONUSES are also appreciated. If you need additional related follow up on this particular question afterward clicking ACCEPT, don't hesitate to click "Reply" and I will be happy to help you. And if you would like my assistance in the future, just put my name, STEPHANIE JOY, in your title or first sentence of a new post. Please keep in mind that I can only respond to your post and the information contained in it, as I do not know what you know unless you describe it fully. Also, due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so I apologize in advance if it means more interactions between us. At times, there can also be a delay of an hour or more in between my answers because I may be helping other customers or taking a break, or if it is late at night, I may have to go get some shut eye til morning, but rest assured, I'll be back for you. Thanks

Sincerely,

S. Joy, Legal Expert

My Standard and Required Legal Disclaimer. The information given by me here is not legal advice. You should not and may not rely on anything on this website as legal advice and you agree that the nominal price you may voluntarily pay for information here clearly does not pay for any legal advice. I am neither establishing nor accepting an attorney-client relationship with you. You must hire an attorney in your state as a matter of law, in order to receive legal advice and attorney/client relationship and rights. I do not claim to be licensed to practice in the state where this information is being provided or whose law would apply, if any. My licensing credentials are noted in my profile, which you have full access to. As law is always changing, you are recommended to consult with the appropriate legal counsel in your jurisdiction for accurate and complete information. Thank you, XXXXX XXXXX a great day.