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Child custody is often a contentious issue between parents, and the difficulties may multiply in complex custody cases, such as those where parents live in different countries. The recent United States Court of Appeals case of Valenzuela v. Michel provides an example of such a situation.

Children spent time in two countries

In 2006, the couple in the case decided to live together in Nogales, Mexico. Approximately two years later, the couple had twins. A year after that, the couple agreed that they should move to Arizona, to avoid the father being forced to cross the border for work. Both parents also felt this would allow them to take advantage of educational, medical, and government resources available in the United States.

Thereafter, the twins lived with their mother in Mexico half the week, and about half the week with their father in the United States. However, by late 2010, the parents’ relationship deteriorated to the point that the mother allegedly threatened the life of the father. The father believed the mother posed a danger to the children and reported her to child protective organizations on both sides of the border.

For several months, the children again shuttled back and forth, although at one point in early 2011, the mother did not meet the father at the border and stopped responding to text messages. When the father did later pick up the twins, he sent the mother a text message stating he would not be returning the children to Mexico.

The mother filed a court action, but the court found in favor of the father. The mother appealed.

Shuttle custody . . . between countries

The question for the court was in which country the twins were “habitually resident” at the time the father retained custody. The United States Court of Appeals noted that the lower court had been in a position to determine the credibility of each of the parents.

The lower court found the father credible and the mother’s account inconsistent with earlier statements she had made to a social worker about the length of time the children had lived in the United States. In addition, it appeared that the mother’s witnesses were being actively coached, possibly by the mother, while they testified via telephone with an interpreter. The father’s testimony was also supported by the testimony of one of the children.

This was a case of “shuttle custody,” where the parents had agreed to split custody between two countries. The parents had shared an intention to abandon Mexico and had immediate plans to receive government assistance for the children in the United States as well as longer-term plans to educate them there.

Thus, the Court of Appeals affirmed the decision that the children were “habitually resident” in the United States when the father retained them. The father did nothing wrong by keeping custody of his children, and he would not need to return the children to Mexico in this child custody case.

Negotiation or litigation?

If you find yourself embroiled in a child custody dispute, it is essential that you consult with an experienced family law attorney prior to taking any action. Choose an attorney who is willing to seek a favorable outcome through negotiation or mediation, but who can also, if necessary, handle a high-conflict dispute that might require litigation.

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