Tuesday, 12 August 2014

Custody vs. Parental Rights and International Child Abduction

From wilentz.com
Updated 22 February 2016

I've gotten two emails in the last month about this topic so I thought I'd write a blog post about it. I am not a lawyer and this is not meant to be construed as legal advice. Always remember to get everything in writing whether dealing with your lawyer or the other parent.

International Parental Child Abduction
This is a form of kidnapping is becoming more common and getting your child back, especially across international borders, can take a long time and cost a lot of money. See Expat Stuck Parent for stories about parents who are locked from taking their children back to their home countries. You can also read what the Hague Convention says about International Child Abduction.

Parental Child Abduction Information for Americans
If you're American, the State Department can help and they have a website where you can file your case. They have a program called the Children's Passport Issuance Alert Program which will alert the parent(s) for children under 18 if someone tries to apply for a passport for that child. The FBI and the Department of Justice also have information.You can also call 1-888-407-4747from the US or Canada or 1-202-502-4444 if you're overseas.

Travelling With Your Child
If only one parent travels with their child, they will need proof of permission from the other parent if they have shared custody. If they have sole custody, they will need copies of the divorce decree. If the other parent has passed away, they will need a death certificate. If only one parent is on the birth certificate, bring the birth certificate. If you fear that your ex may try to take your child without your permission, here are somethings you can do.

Getting an American Passport without the Other Parent's Permission
If you share legal custody, then in the case of schooling, travel, medical decisions, etc, both parents usually must sign off. There are exceptions to this rule. For example, to get an American passport, you need both parents' signatures if they share legal custody. If you can't get the other parent's signature you can fill out form DS 5525. Explain the situation in as much detail as possible and get documentation, such as phone records, emails sent, Skype, certified mail, etc.

If there is a step-parent involved and they can prove that they're in loco parentis, then they can sign. So if you have physical custody and have re-married, your spouse may be able to sign by showing they have supported your child. This can be proven through rent or mortgages, school records, insurance records, etc. I know people in the military have showed their step-child was their dependent in DEERS and were able to successfully get a passport that way.

If you're in this situation where you can't get the other parent's signature, prepare as many documents as you can. Do BOTH form DS 5525 and see if your spouse can sign. The more documentation you have the better the chance you have of getting a passport. I've found that people issuing American passports are very sympathetic. If you can show that you've made effort to contact the other parent then you can usually sign the passport application without the other parent's permission. Likewise, if you can show your spouse is in loco parentis, they'll be able to co-sign with you.

Allowing Both Parents to Raise Their Kids 
Most countries believe that it's in the child's best interest to have access to both parents. This is done through:
  • Physical custody
  • Legal custody
  • Visitation rights
  • Parental rights
Custody
Child custody battles are common. Here are some tips to help you get through it. Remember to record everything and/or get it in writing. Ecamm, for example will allow you to record Skype conversations since sound recordings are submittable as evidence in court proceedings. Make sure you honor the custody agreement. Interference with the parental rights of the non-custodial parent, or PAL is a serious crime and may cause you to lose custody and/or parental rights.

Divorce is common nowadays and with it comes child custody issues. There's two types of custody: legal and physical. Physical custody is whose home the child lives in and legal custody is who makes decisions about the child's well-being. Some type of joint or shared custody is often preferred in the USA instead of sole custody, except for cases where it would endanger the child. A mother may get sole (or primary) physical custody over her child, but both parents would share legal custody.

In the case of schooling, travel, medical decisions, etc, both parents usually must sign off. There are exceptions to this rule. For example, when the other parent can't be located or when there is someone acting as in loco parentis. Let's say you re-marry and your spouse has been caring for your child. They'd be in loco parentis. This can be proven through rent or mortgages, school records, insurance records, etc. If they're in the military and have registered their step-child in DEERS, it's even easier to prove in loco parentis.

Visitation Rights
Just because one parent has sole physical custody does not mean that they other parent doesn't get visitation rights. There are three types of visitation rights: no visitation, supervised visitation, and visitation.

Narcissistic or Borderline Personality Disorder
If you're dealing with someone with these issues, remember to remain calm. Losing control is what they want you to do. Get everything in writing or record it. These types of people are good at manipulation (they can turn anyone against you, even your own lawyer) and projecting (seeing others as they are seen). For example, if they cheated, they believe that you'll cheat on them or even worse, they'll accuse you of narcissism. Here are some articles narcissism.
There are also a number of books about narcissism. My advice to you would be to educate yourself and distance yourself both physically (if possible) and emotionally from this person.

Parental Rights: General Information
Once a mother's and father's name is written on the child's birth cert, they get parental rights. Once parental rights are taken away from someone, a new birth certificate will be issued without that parent's name on it.

Terminating parental rights is a major affair and can take years. It is not something to be taken lightly and is considered to be a last resort. There has to be a solid reason for terminating parental rights. Below you can find some reasons for terminating parental rights. There are two ways to terminate parental rights: voluntarily or involuntarily. While some parents may willingly give up parental rights temporarily or permanently, many parents refuse to do so and courts have to get involved. If a parent is not involved, but refuses to give up parental rights, some parents will agree to sign over rights if you waive back child support, back medical expenses, future counseling costs, cost of supervised visitation, and letters from medical professionals saying that not terminating parental rights would cause permanent emotion and mental damage to the child. This is not a complete list. Please contact the court that has jurisdiction over your area.

One (or both) of the parents . . .
  • is in prison due to committing a serious crime
  • is a sex offender
  • is mentally unstable
  • has abandoned the child
  • has not had contact for a minimum amount of time (usually 6-24 months)
  • is a drug abuser or alcoholic
  • is a threat to the child's well-being
  • hasn't paid child support
  • has signed over their rights
Parental Rights in Peru
Here's information about parental rights (patria potestad) for Peru. It is not legal to sign over your rights in Peru. They can only be taken away during exceptional circumstances, such as being convicted of a crime. FYI: not paying child support is considered a crime in Peru. Parental rights can be temporarily taken away until the parent pays. Their salary or wages can also be garnished if they refuse to pay. Parental rights are taken away once the child becomes 18 or the parent dies. Contact a lawyer for more information.

Parental Rights in the USA
Unlike Peru, in the USA you can sign over your rights or they can be involuntarily terminated. The courts also might step in and adjudicate the termination of parental rights and assert jurisdiction over custody cases. Each state has different requirements so be sure to read the information thoroughly. Here's the information for termination of parental rights in Texas and adoption in Texas, for example.

Usually the courts will not involuntarily terminate a law-abiding parent's rights unless someone else agrees to adopt the child (if they're under 18), such as a step-parent (here are step-parent adoption forms for each state). You usually have to notify the other parent if you want to terminate their rights. You can do this by having someone from the court or police serve them the petition, publish an ad in the paper, or send the summons via certified mail. However, there are many exceptions so you may want to contact a lawyer.

It can be very expense, but many employers, such as the US military, UPS, ServiceMaster, ARAG, Hyatt Legal, and MetLife will offer adoption assistance. The IRS also has information about qualified adoption expenses and the top 10 facts about adoption tax benefits.

If the person wanting to be adopted is over 18 then it's simply a matter of signing papers at the court house. For example, if a child wishes to take away their father's parental rights and the child is 18, then the father doesn't even have to be contacted.

In conclusion
When getting a divorce or separating the court will make a decision based on what's best for the child. Being spiteful and getting revenge can only do harm and not good. If you're living in Peru and have registered your marriage in Peru, you should also register your divorce there or get divorced again. You may have to notarise, legalise, or apostillise documents. Contacting lawyers in Peru can help. If you don't understand Spanish, I highly recommend you start learning so that you can know what's going on when you go through these legal proceedings. If you're looking to learn Spanish, Fluenz Spanish, Rosetta Stone, and Synergy Spanish.



The Ultimate Peru List recommends:

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