From all the different legal processes that a Family Law Attorney handles there is nothing more rewarding than adoptions, especially step parent adoptions.  Generally, it is a happy, especial day of unifying a family. However, adoption attorneys must be knowledgeable when it comes to the adoption of a child from a foreign country.

According to the USCIS policy for Determining Habitual Residence in the U.S. for Children from Hague Convention Countries the country where the child is considered to be habitually resident will determine what adoption process the adoptive parent must go through.  If a child lives in the U.S. but is considered to be habitually resident of their country of citizenship, adoptive parents must generally go through the Hague process in order to adopt and obtain U.S. immigration status for their child. If the child is considered to be habitually resident in the U.S., the adoptive parents do not need to go through the Hague process and may file a Form I-130 for the child.

In order to establish that the child is a habitual resident of the U.S. three criteria must be met:  (1) At the time the child entered the United States, the purpose of the entry were for reasons other than adoption; (2) Prior to the U.S. adoption, the child actually resided in the United Sates for a substantial period of time, establishing compelling ties in the United Sates; and (3) The Central Authority of the country of citizenship was notified of the adoption proceedings and the Central Authority did not object to the proceeding.

WRIT OF HABEAS CORPUS FOR THE RETURN OF

CHILDREN WRONGFULLY REMOVED

            When a parent removes a child from one state to another state within the Unites States, the left-behind parent may file a Petition for Writ of Habeas Corpus for the immediate return of the child.

In order for a Florida court to grant the writ for the immediate return of the child, the Court must find that the removal of the child from his/her home state was “wrongful”. The removal of a child is wrongful if it is in violation of an agreement of the parties or a custody order entered in the state of residence. The “custody order”must have been entered in substantial compliance with the due process rights of “notice and opportunity to be heard”.

If your child has been removed from his/her home state and has been brought to Florida without your permission or an order of the court contact Sallato & Associates, PA. We have the experience to know when it will be proper to file the Writ of Habeas Corpus and how to successfully present it to the Florida court.

RETURN OF CHILDREN TO THEIR COUNTRY OF RESIDENCE UNDER THE HAGUE CONVENTION

 When a child is kidnapped/removed from another country and is brought to the United States, the left-behind parent may petition the US Court for the return of the child to the child’s country of residency.

The stay-behind parent can file a petition for the return of his/her child under the terms of the Hague Convention. The petitioner must prove that the child was wrongfully removed from his habitual place of residence. A child is wrongfully removed when the left-behind parent is able to prove that at the time of the removal he had “rights of custody” and that they were being exercised at the time of the removal.

The “rights of custody” required under the convention for the return of the child may arise out of an agreement of the parents, a court order or by operation of law. It is important to note that on many occasions a child is removed from his/her country when there has not been a previous court order deciding custody of the child. However, even in the absence of a court order granting custody rights, a parent derives custody rights by operation of law emanating from either the constitution or legislation such as the concept of patria potestas. These rights of custody are to be found in the legislation of the country of habitual residence.

An attorney experienced in the return of children under the Hague Convention should be consulted as a successful petition requires the knowledge of the US and foreign law and must be able to educate the presiding judge on both. We at Sallato & Associates, P.A. have successfully represented left behind parents from Australia, England, Colombia, Ecuador, and Brazil.

The convention stems from the response of 62 sovereign nations to the global problem of international child abduction. The overriding objective is to spare children the detrimental emotional effects associated with transnational parental kidnaping.

The Hague Convention was enacted to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the country of their habitual residence. The Convention intends to restore the pre-abduction status quo and deter parents from crossing borders in search of a more sympathetic court for custody hearings. To secure the prompt return of children wrongfully removed to or retained in any Contracting State.

The Convention is premised upon the notion that the child should be promptly restored to his or her country of habitual residence so that a court there can examine the merits of the custody dispute and award custody in the child’s best interest.

The convention stems from the response of 62 sovereign nations to the global problem of international child abduction. The overriding objective is to spare children the detrimental emotional effects associated with transnational parental kidnaping.

The Hague Convention was enacted to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the country of their habitual residence. The Convention intends to restore the pre-abduction status quo and deter parents from crossing borders in search of a more sympathetic court for custody hearings. To secure the prompt return of children wrongfully removed to or retained in any Contracting State.

The Convention is premised upon the notion that the child should be promptly restored to his or her country of habitual residence so that a court there can examine the merits of the custody dispute and award custody in the child’s best interest.