Cross border custody issues are intriguing as challenges are multipronged. Recently, I came across interesting cases where tussle of cross-border child custody issue between India and US were involved.
- The divorce was already granted in US and both parents had shared custody, but minor child stayed with mother during school days. Mother is Indian citizen while father and daughter are green card holders, all living in US. Father detained daughter beyond the scope of custody on grounds of negligence by mother and filed docket for emergency hearing. However , custody was restored to mother.
- Indian mother was a victim of domestic violence who sought asylum in US on growunds of domestic violence. The father had taken the minor daughter back to India. Divorce is not yet filed and no court orders for custody were issued. No habeous corpus filed but now the mother is considering seeking custody of the daughter.
- Child is US citizen , parents are Indian citizens. Child is with mother in India and she has filed for custody of the child in India, while one spouse has filed divorce in India and other in US. Since the child is in India, US courts will not decide about child custody in divorce petition.
- Parent has brought child to India for medical reasons but now don’t want to take the child back to UK. The court has to decide best interest of child in terms of medical reviews periodically.
- Child was brought to India by mother for a short trip, but then mother decides to stay back in India and not return to US. The father seeks custody order from US as child is a US citizen. However, mother ignored that order and filed for child custody in India.
Each case comes with its unique set of facts as we dwell between jurisdiction, citizenships of parties, child’s place of ordinary residence, best interest of child , any previous custody orders and by which court, comity of courts, parens patriae, amongst number of other factors.
Every case has its facts & circumstances, and there are no straight jacket formula.
Some available options when a child is removed from a foreign country to India, in crossborder custody disputes are :
- File a Writ of habeas corpus. Yet most often than not such writ gets dismissed as the left behind parent is unable to prove that detention of child is illegal or without any authority of law.
- In US temporary emergency jurisdiction can be invoked. Though it should be noted that courts sparingly use this power of invoking habeas corpus or temporary jurisdiction.
- Parent who is left behind can obtain a custody order from the country of child’s ordinary residence. Even though Indian courts also consider if the child is settled in India and has “Developed roots”
Options for parent in India who has the child :
- File for child custody in India under the Guardians and wards Act.
- Even if a parent has a custody order by a foreign court it is not necessary that custody will be returned or that order will be superior. It is at the discretion of each court based upon individual nature, facts of each case and best interest of the child.
It is often noticed that in similar cases the court has given two opposite orders and that’s where unique circumstances and facts of each case come into play.
On another note, the clients who google and come , thinking they know everything about their matter and find some similarly placed matter online, It is true in a world of google and AI, parents think they can do an online search and figure out what’s the best option for their case. Yet, the application of Judicial mind and intelligence cannot be replaced by search engine based solutions.
