In the USA, a parent’s right to make decisions for children is protected by the Due Process Clause of the 14th Amendment to the US Constitution.

Although the terminology may vary across the 50 states of the USA, a parent’s decision-making power with regard to a child is most often referred to as “legal custody”. A parent can have “sole legal custody” by which a parent is individually empowered ‒ or “joint legal custody”, which requires parents to co-operate with one another ‒ to make important decisions affecting a child’s life, including (but not limited to) a child’s education, healthcare, religious upbringing, and extracurricular activities.

A birth mother would automatically acquire parental rights or legal custody of the child. A birth mother can lose custody of her child to the authority of the state if a court determines that such relief is in the child’s best interests and the court terminates or suspends the mother’s parental rights as a result. By way of example, a state can take protective custody of a child and commit guardianship to an authorised social services agency if parental rights are terminated owing to a finding of neglect or abuse, a newborn testing positive for drugs, etc.

A father’s parental rights in the USA will depend on his relationship to the child’s mother at the time of the child’s birth. A father acquires parental rights over a child if the child was born of the marriage between the mother and father. In some states, including New York, a father acquires parental rights over a child if the child was born of a civil partnership between the mother and father.

Alternatively, parental rights can be acquired by unmarried fathers in other ways, including ‒ but not limited to ‒ by:

• being registered as the child’s father on the birth certificate;
• obtaining a parentage/paternity order from a court (eg, an “Order of Filiation” in New York);
• entering into a custody agreement with the child’s mother;
• obtaining a court order granting joint or sole legal custody; and
• entering into a marriage with the mother.

As regards parental rights for a father in a same-sex relationship, please see 1.4 Requirements for Non-Genetic Parents.

There are various categories of non-genetic parents in the USA. Each category has different requirements for acquiring parental rights.

Adoption

US citizens who are at least 25 years old can legally adopt a child, subject to any additional requirements pursuant to specific state laws. Such requirements across various states throughout the USA regarding a person’s eligibility to adopt a child include, but are not limited to, passing criminal background checks. In New York, adoption is a legal proceeding whereby a person acquires the rights and responsibilities of a parent in all respects. Once the court grants an order of adoption, the parent and adopted child legally establish the relationship of parent and child.

Step-Parents

Step-parents who wish to acquire parental rights and responsibility for their step-children must formally adopt them. Once the step-children are adopted, the non-custodial parent no longer has parental rights or responsibilities, including child support. Step-parent adoption is the most common type of adoption in the USA.

Same-Sex Relationships

In 2015, the US Supreme Court struck down all state bans on same-sex marriage, and legalised same-sex marriages in all 50 states. Same-sex couples can establish parental rights in various ways, including by adoption, pregnancy and surrogacy. In general, a biological parent automatically has legal custody of the child, and a child born into a marriage is subject to both spouses’ legal custody.

Surrogacy

Gestational surrogacy is the process by which a woman agrees to become pregnant via in vitro fertilisation and embryo transfer and to carry and deliver a baby for intended parents, who will be declared the legal parents of the child immediately upon birth. Surrogacy is an important family-building option for many families experiencing fertility or health issues and/or for LGBTQ+ families.

The USA does not have federal laws regarding gestational surrogacy. Instead, each state has the right to create its own laws on the subject, which vary widely from state to state – some of which proscribe compensated surrogacy outright. In New York, surrogacy agreements were unenforceable until the Child Parent Security Act became law in 2021, which allows for compensated gestational surrogacy pursuant to surrogacy agreements and for parentage orders to be granted prior to the birth of a child. New York law only applies to gestational surrogacy, whereby the surrogate’s own egg is not used to conceive the child. Arrangements whereby the surrogate is biologically related to the child remain unenforceable in New York and they are prohibited if the surrogate is being compensated.

Whether the parents are married at the point of the child’s birth, rather than at the point of conception, is relevant in the process of obtaining parental responsibility. In general, if a child is born of the marriage (and, in some states, born of a civil/domestic partnership), the parents of that child automatically obtain parental responsibility for the child.

Under New York law, a child born to parents who are married at the time of the child’s birth is presumed to be “the legitimate child of both parents”, which is also referred to as the “presumption of legitimacy”. In addition, a recent decision by a New York appellate division court held that a child’s legitimacy is also presumed for a child born of parents who were not married at the time of the child’s birth but who subsequently enter into a civil or religious marriage (see Tiwary v Tiwary, 189 AD 3d 518 (2d Dep’t 2020)).

See 1.4 Requirements for Non-Genetic Parents.

See 1.4 Requirements for Non-Genetic Parents.

When one parent wishes to relocate a child permanently to another country, the relocating parent generally needs the consent of the other parent and/or any other individual who is a legal guardian of the child.

If a parent wishes to move a child of the family permanently out of the family home to a new country and does not have the written consent of the non-relocating parent or legal guardian, the relocating parent may still seek to relocate by applying to a court with jurisdiction over the child. Under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), the court with jurisdiction over the child is the court in the state where the child has resided for a period of six months or more. The court may grant permission for the relocation if it determines that relocation is in the child’s best interests.

Whether a proposed relocation is within the same area, to a different part of the state, or to different country, the same standard applies, which is generally the best interests of the child. The distance of the proposed relocation, however, is a major factor as it will determine the extent to which the proposed relocation will adversely affect the non-applicant’s access to the child. The less effect on the other parent’s relationship with the child, the more likely the court will be to allow the relocation. By way of example, if the proposed relocation is to “the other side of town” (and this will minimally affect the non-applicant’s ability to spend time with the child), a court will generally allow the relocation. If, however, the proposed relocation is of significant distance – such as to a different part of the state or to a different country ‒ to the extent that the relocation significantly affects the non-applicant’s access or parenting time with the child, then the court will be less likely to allow the relocation, subject to its decision as to whether the proposed relocation is in the child’s best interests following consideration of the relevant facts and circumstances. 

In the USA, it is a federal criminal offence – punishable by a fine or up to three years in prison – to remove a child under the age of 16 from the USA with the intent to obstruct the lawful exercise of parental rights. The term “parental rights” refers to the right of physical custody of a child (including joint and sole custody) and whether such rights have been determined by a court order or by a binding agreement between the parents or whether they arise by operation of law.

In addition to this federal law, all states in the USA have enacted their own laws making it a crime to remove the child from the state without a court order or without the permission of the other parent and with the intention of defeating such parent’s custodial rights. In New York, for example, it is “custodial interference in the first degree” for a parent (or another relative) to take a child under the age of 16 with the intent to keep the child away permanently or for a protracted period of time. Custodial interference in the first degree is a Class E felony punishable by up to four years in prison.

Similarly, in California, any “person” who takes a child and “maliciously deprives a lawful custodia[n] of a right to custody… or visitation” may be prosecuted for “deprivation of custody of a child or right to visitation” (Section 278.5 of the California Penal Code). Depending on the degree, deprivation of custody is punishable by up to three years in prison and a fine of up to USD10,000.

The USA is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “1980 Hague Convention”). The 1980 Hague Convention is a multilateral treaty to which more than 100 other countries are signatories. It is designed to protect children internationally from the harmful effects of their wrongful removal, by establishing an expedited process for the courts or administrative agencies of the country to which the child is removed to return the child to the child’s home country (“state of habitual residence”). The 1980 Hague Convention is not a mechanism for resolving custody disputes and, in that expedited proceeding, custody issues are not addressed. Indeed, the fundamental purpose of the 1980 Hague Convention is to ensure ‒ by promptly returning the child ‒ that custodial issues are decided by the country of the child’s habitual residence, rather than by the country to which the child was abducted by a parent.

Each of the signatory member states to the 1980 Hague Convention has a Central Authority, which helps to locate abducted children, encourages resolutions of parental abduction cases, and processes requests for the return of children in what are known as both “incoming” and “outgoing” cases. A proceeding pursuant to the 1980 Hague Convention may be brought directly before the courts of a signatory state or through the Central Authority of the state of habitual residence, which co-ordinates with the Central Authority of the country the child was taken to. Cases pursuant to the 1980 Hague Convention are brought in the country in which the children are located, seeking return to the state of habitual residence.

In the USA, the 1980 Hague Convention is implemented through the International Child Abduction Remedies Act (ICARA), a federal law enacted by the US Congress in 1988. Section 9001(a)(4) of ICARA mandates the prompt return of children “wrongfully removed or retained” within the definition of the 1980 Hague Convention, unless one of the narrow exceptions to the return applies. ICARA further establishes a uniform process for “prompt return” and directs that states must act “expeditiously” to return children to their “state of habitual residence”. The Office of Children’s Issues within the Department of State serves as the Central Authority for the US government.

If a child is removed from the USA without the appropriate consent or an order of the court permitting such removal, the left-behind parent can file a petition for the return of the child under the 1980 Hague Convention, provided that the country to which the child has been removed is a signatory to the 1980 Hague Convention. The Office of Children’s Issues will assist in locating the child and with transmitting the request for the return of the child to the country where the child is located, and with locating counsel in such country.

If the country to which the child has been taken is not a signatory to the 1980 Hague Convention (eg, China, Russia or India), the Office of Children’s Issues may still be able to assist with the return of the child. However, this process is far more complicated and the resources of the Office of Children’s Issues are more limited.

When a child is taken to the USA from another country that is a signatory to the 1980 Hague Convention, the left-behind parent seeking the return of the child will need to file a petition under the 1980 Hague Convention. The petition can be filed in the child’s state of habitual residence and will be transmitted through such country’s Central Authority to the USA. Pursuant to the 1980 Hague Convention, proceedings for the return of the child must be filed in the country where the child is located.

The Office of Children’s Issues maintains a network of attorneys who provide legal assistance to the parents seeking the return of their children and will assist with obtaining legal representation. Depending on the applicant’s financial circumstances, these attorneys may accept incoming 1980 Hague Convention cases for a reduced fee or no fee. Eligible Hague applicants may request pro bono (no fee) or reduced fee legal assistance and the Office of Children’s Issues will also assist with interpreting. There is, of course, no guarantee that an attorney will volunteer to take the case. In addition, the Office of Children’s Issues will provide a list of full-fee attorneys upon request. These attorneys can work on incoming 1980 Hague Convention cases and some may work on non-Hague cases as well.

Ultimately, a petition for the return of the child under the 1980 Hague Convention must be filed with the court. In the USA, state and federal courts have concurrent jurisdiction to hear such cases and make a determination. The courts in the USA take these proceedings very seriously and will order the return of the child unless the parent opposing such return can establish one of the narrow defences. The 1980 Hague Convention provides five narrow exceptions to return:

• one year and well-settled defence – one year has passed and the child is now well-settled in the new environment;
• consent or acquiescence ‒ the parent seeking the child’s return consented or otherwise acquiesced to the removal or retention;
• grave risk or intolerable situation – the return poses a grave risk that the child will be exposed to “physical or psychological harm” or otherwise placed into an “intolerable situation”;
• mature child objection ‒ the child objects to return and is mature enough to have their objection considered; and
• human rights and fundamental freedoms ‒ the return contravenes basic human rights and fundamental freedoms.

All these defences are narrowly construed and the burden is on the parent opposing the return to establish that the defence applies.

The proceedings under the 1980 Hague Convention are expedited and take priority over other cases. Even though the 1980 Hague Convention calls for the child’s return within six weeks, in practice, these cases may take several months (and sometimes longer). Free legal assistance is not routinely available to the parents opposing the return and legal costs may become quite high. Moreover and pursuant to Section 9007 of ICARA, although the parent seeking the return of the child is initially responsible for all costs in connection with such petitions (including travel and legal costs), ICARA permits the court to reallocate all such costs to the respondent if the return is granted.

For further information, see the May 2022 Report of the US Department of State on Compliance With the Hague Convention and the HCCH Global Report – Statistical Study of Applications Made in 2021 Under the 1980 Child Abduction Convention.

This is not applicable in this jurisdiction. The USA is a signatory to the 1980 Hague Convention.