The Hague Convention on the Civil Aspects of International Child Abduction (Convention) protects parents with primary custody rights from parental abduction or retention of their children in another country. However, as more couples in the United States forgo marriage but continue having children, these couples-who often prefer informal parenting arrangements-do not often obtain court orders that identify their custody or visitation rights. Yet if an unmarried parent relocated to another country without the other parent's consent, the parties would have to rely on the state's default custody rules to determine where the custody battle should ensue.
For example, Mexican jurisdictions follow a Roman civil law tradition, patria potestas (parental authority). From birth or voluntary acknowledgement of paternity, parental authority gives both parents the right to care and control their children and their children's property. However, in most United States jurisdictions, custody rights do not arise automatically simply because a child was born to unmarried parents. Instead, voluntary acknowledgment of paternity serves as a basis from which a parent can seek the court's determination of custody in the child's best interests.
These differences in approaches to child custody appeared in two recent Convention cases in the Seventh Circuit. In both Garcia v. Pinelo and Martinez v. Cahue, the unmarried fathers voluntarily acknowledged paternity of their children. In Garcia, the Seventh Circuit found that the unmarried father, who resided in Mexico, had a right of custody under the Convention pursuant to the Mexican laws of parental authority. In contrast, in Martinez, the Seventh Circuit found that Illinois law presumes, in the absence of a court order, an unmarried mother has sole custody of her child. Therefore, the unmarried father in Martinez, who did not obtain a custody order before the mother moved to Mexico, did not have any rights of custody under the Convention, despite having acknowledged paternity.
In light of demographic trends towards fewer marriages and more informal parenting arrangements, should jurisdictions like Illinois adopt child custody rules that endow rights of custody to both parents at birth or upon acknowledgement of the child? In order to protect children's best interests and to preserve the status quo before an alleged wrongful retention or abduction, Illinois should not adopt a rule like parental authority laws. While as a society we may want parents to share significant decision-making and to cooperate regarding their children's upbringing, default rules regarding children should protect children's best interests rather than parental rights. Illinois's presumption requires a court to consider the children's best interests before awarding custody and visitation rights while parental authority laws automatically confer decision-making authority to parents. Children's best interests are better served when a court protects stability and the status quo in children's lives rather than enabling a parent to assert parental rights for the first time under a Hague Convention petition.
David E. Braden,
Rights of Custody: Results May Vary,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol12/iss1/10