A Monroe County, Ohio resident finds herself trying to get a local court judge to order the return of Zander Scicluna. According to this story, Zander’s mother and father never married, but a West Virginia court did enter a paternity and custody judgment setting forth a specific schedule of visitation for Zander’s father. So far, this case looks like many others where one parent deals with another parent moving to another state and not returning the child in accordance with the custody schedule. Normally, the remedy would be to have a court issue a warrant and commitment for the return of the child.
But Zander is not an ordinary case, because Zander is not in the United States but Malta, where his father chose to take him. It seems Zander’s father is a citizen of Malta and has obtained a ruling from a Maltese family court allowing him to keep Zander indefinitely.
Zander, who has autism, is now the focus of an international child custody dispute.
In this situation, Zander’s mother has legal recourse. She could file an action based on the Hague Convention on International Child Abduction, to which Malta is a signatory, and ask that the court find that Zander has been unlawfully retained in Malta and should be returned to the United States, his country of habitual residence. The one wrinkle in this case, though, is that it appears that Zander’s mother would have to file this claim in Malta given the time Zander has been out of the country. Given the entry of the Maltese court on custody, which it likely lacked the authority to do, the Maltese court might not be a favorable venue and this battle could take months or even years.
Zander’s mother could also seek help through the Parental Kidnapping Protection Act, a federal law that makes it a felony to unlawfully retain your child. A prosecution could trigger the assistance of the State Department to secure the arrest of Zander’s father and a return of the child.
While we have come a great distance in protecting children from parents who live in different countries from abducting children and using international court shopping to gain custody rights, the logistics still remain complicated at times, as Zander’s case demonstrates. Zander’s mom had to allow an international visit; she did not anticipate the noncompliance and the further actions of the Maltese court – which should have ordered the child returned promptly, not give Zander’s father indefinite custody. Under the Hague Treaty, all custody disputes are resolved in the country of the child’s habitual residence, which would be the United States. Malta made an error under the Hague Treaty, it seems, and now Zander’s mother will have to jump through many hoops to correct that mistake.
Zander’s case shows we need some additional reform that assures a parent cannot retain a child in violation of a custody agreement, whether through conditional visas or other legal measures.
If you have questions about international child custody disputes, contact us – we can help.