Parental ABDUCTION to China in the mixed marriage —— this may make a lot of parents horried. But that is the naked truth in the mixed marriage.
In my practice, I dealt with several cases with regard to “abduction” of kids to China. In these cases, one side of the parents are Chinese.
They got some problems in their marriage and then just took the child back without the permission or even the knowledge of the other party. Some of these Chinese parents are in separation, and some of them had gotten the divorce orders from the court.
In most situations, the Chinese parties had no right of custody or got the joint custody. For some reason, when they decided to come back to China, they just took the child and disappeared.
How would the foreign party do?
1. Would the Hague Convention help?
NO. China is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. So there is no way to apply the Hague Convention.
Although there are a lot of Chinese legal experts advocate the entry into the Hague Abduction Convention, there is no progress during in the past and there would not be any hope of admission in the short future.
The reason may be imbedded in Chinese traditional culture. People just regard it as internal family dispute or a continuation of contradiction of ex-husband and ex-wife, rather than a horrible crime which can harm the children’s growth.
Note: The Hague Convention on the Civil Aspects of International Child Abduction is a multinational treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted by a parent from one member state to another.
2. If the foreign party has a favorable court order, could it be enforced in China?
In most cases, the foreign party holds a Divorce Settlement or a court order with favorable arrangement of residence or custody of the child, the Chinese party is in violation with those provisions and go away with the child.
Unfortunately, in most situations, these settlements or court orders can not be recognized and enforced in China. To put it simple, all these papers are useless except as kind of evidence in the following litigation.
3. The only solution to parental abduction to China is to lodge a case in Chinese court. And the cause of action is the dispute of right of custody.
(to be continued)
If you have more questions about child custody, cross-border divorce, marriage, family law in China, welcome to contact me.