Game of Thrones star Sophie Turner has sued soon-to-be-ex-husband Joe Jonas for wrongful retention of their two children in their sudden divorce.
Pop star Jonas first filed for divorce in early September, and the couple initially released a statement announcing the “amicable” end of their marriage after an unexpected August dispute. However, the case quickly went downhill. Turner’s lawsuit makes it clear that the divorce was anything but expected or amicable. According to her claims, she was unaware that Jonas had filed for divorce until she found out through the media.
Despite this shock, Turner goes on to allege that the couple initially worked together to arrange care for their three-year-old and fourteen-month-old children. According to her statement, the couple agreed to have the children remain in the US with Jonas through August while Turner was in England finishing an intense film shooting. She would then return to the US, meet with Jonas and their daughters, and return with them to England, where they would remain going forward.
However, upon meeting in the US, Turner alleges that Jonas refused to turn over the children’s passports, preventing her from taking them out of the country. She alleges this is considered “wrongful retention” of the children under the Hague Convention. She demands Jonas release their passports and permit the children to return with her to her home country.
While few situations turn so sour so quickly, international divorces do carry child custody risks. Let’s break down how custody battles work internationally, what constitutes wrongful retention, and what you can do to navigate your custody dispute without violating international treaties.
Parents’ Rights to Custody Internationally
Every country has the right to set its own laws with very few restrictions. This concept is known as national sovereignty. While governments may agree to work together on certain matters or follow a set of international standards, there is no obligation to do so.
This can pose significant complications during international family law disputes, particularly those involving child custody. The laws regarding child custody in the US and the UK have similarities, but they are not the same. The country where a custody order is issued can greatly influence the outcome of the case. Before a custody order can even be given, though, it’s necessary to determine which country has jurisdiction over the children.
That’s where the Hague Convention comes in. Also known as the Hague Convention on the Civil Aspects of International Child Abduction, it is a multilateral treaty that sets rules dictating where custody disputes should be heard. It also explains what should happen if a parent removes a child from their habitual country of residence or retains in a foreign country without the other parent’s consent.
Under the Hague Convention, the child’s habitual country of residence has jurisdiction over disputes. It also grants courts the right to return children to their home countries if they are unlawfully removed or retained. However, only countries that have ratified the Convention must abide by it. There are currently 103 nations that have agreed to the treaty, leaving 90 or more countries that are not bound by its terms.
What Constitutes Wrongful Retention of Children?
Turner is invoking the Convention to be permitted to leave the country with her children. She argues that Jonas is committing the wrongful retention of their daughters. But what does that mean?
There are two factors involved: habitual residence and unlawful removal or retention. The Convention only applies when a child is in a country other than their “habitual residence.” While the treaty doesn’t provide a specific definition regarding habitual residency, there are a few common approaches relevant to the Turner-Jonas case:
- EU: The UK is no longer part of the European Union (EU) but still follows much of the previously established jurisprudence. The EU considers a child to be a habitual resident of a country if they have a regular physical presence in a country and have a consistent social and family environment established there.
- US: Federal jurisprudence relies on a “fact-based” determination of residency and shared parental intentions before the retention or removal of a child. The child is most likely to be found a resident of a country where the parents intended to make their long-term home and where they spent most of their time.
During custody disputes, a child must remain in their habitual country of residence unless both parents consent or an existing custody order states otherwise. If one parent removes the child without the other’s permission, that is considered unlawful removal and may constitute parental kidnapping.
If a parent has permission or a court order permitting them to remove a child from their home nation, they may do so. However, they must let the children return according to the order or agreement. If they do not do so, they may be wrongfully retaining them in a foreign country. This is true even if the child’s other parent has traveled to that foreign country to retrieve them, as in the Turner-Jonas case.
How to Handle Custody Disputes Without Risking Wrongful Retention
Custody battles are complex enough without facing international politics. If you’re involved in an international custody dispute, you should seek experienced legal counsel immediately. A skilled attorney can help you better understand your rights under state, federal, and international law and help you achieve the custody order your family needs. At Kaspar & Lugay, LLP, we can help. We have decades of experience in complex divorces and custody disputes crossing state and national borders. Schedule your consultation to discuss your concerns today and discover how we can support you and your children in your custody dispute.