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Appellate Division Considered a Case Involving International Visitation- Fernandez v. Pulla, 2019 NY Slip Op 7068 (N.Y. App. Div. 2019)


Cases involving international visitation have many challenges.  The parents must have the finances to pay for visitation travel. Travel logistics must be worked out. The parents or others who will accompany the child must have the legal ability to travel internationally.  Also, in some instances there are concerns related to whether the parent requesting international visitation would return the child to the United States. Here the Appellate Division considered a case in which the mother requested visitation with her child in Madrid, Spain, while the father preferred that she have access to the child in Ecuador, South America.

Each parent filed a petition with Family Court for custody of the child.  The mother then withdrew her petition because she was moving to Madrid where she had family.  Instead, she petitioned the court for visitation with the child.  The father was granted sole legal and physical custody.  The father proposed that the mother have visitation in Ecuador where the mother was born and where the maternal grandmother lived. He also stated that the child’s paternal grandmother travel with the child to and from Ecuador for the visitation.  The mother responded that she wanted visitation in Madrid. She indicated that while she would not legally be able to travel to the United States to pick up the child, she had family members who would be willng to bring the child to and from Madrid.  The father expressed concerns about the arrangements related to the child traveling to Madrid. Family Court sided with the father and awarded the mother visitation in Ecuador.  The mother appealed.

In reviewing the Family Court’s decision, the Appellate Division considered a number of factors.  First, the court considered the logistics involved in getting the child to and from Madrid for the visitation.  The court had concerns with the people who would accompany the child.  Even though they were members of the child’s family they had never met the child. In addition, the individuals who the mother said would be responsible for accompanying the child to and from Madrid were not sure if they would be able to obtain visas to travel to the United States.  On the other hand, if the visitation occurred in Ecuador, the paternal grandmother would be willing to accompany the child to and from Ecuador, and there was not a question as to whether the she would be able to travel to and from Ecuador.

In addition to the logistical issues, the father expressed concerns about the mother following the visitation schedule if visitation was in Madrid.  The father presented evidence that in the past the mother had been dishonest about where she was going to live.  She misled the father into believing that she was moving to Pennsylvania when she actually planned to move to Illinois.  In addition, the mother had a track record of being late to court appearances and not showing up at all.  Thus, the court questioned whether the mother would timely return the child to the United State if she was awarded visitation in Madrid.

Given the concerns related to visitation with the mother in Madrid, the Appellate Division denied the mother’s appeal and upheld the Surrogate’s Court decision for visitation to occur in Ecuador.

International custody and visitation issues are quite complicated.  In addition to the logistics of getting the child back and forth, there are concerns related to ensuring that the other country will enforce a custody order from the United States.  Not all countries will. To ensure that your child’s interests are protected, it is critical to discuss your case with an experienced child custody attorney.

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