mom, grandma should avoid custody battle

            Posted on July 10, 2016 

Mom, grandma should avoid custody battle

Q.  In 2009, my son was born in Greece. The dad quickly took off, never to be seen again. I was then living with my parents. My mother took care of my son when I worked. A year later, I got a summer job in Provincetown. My mom agreed to care for my son. I gave her a notarized O.K. to make all necessary parental decisions.

I overstayed my tourist visa, got paid in cash while working in P-Town, married a U.S. citizen and got a green card. All along, I kept in touch with my son via Facetime and Skype, sent him presents, and so on. In 2011, my mother needed a Greek guardianship court order which I assented to.

I spent two weeks in Greece in the fall of 2014 and 2015 with my parents and son. I wanted to take him back to the U.S. to live with me, but my mother objected. She also got a court order saying that I could only have supervised visitation in order to prevent me from taking my son.

In April 2016, I visited my son in Greece, secretly took his Greek passport, picked him up after school, went right to the airport, and flew with him back to P-Town.
Now my mom filed a Hague Convention court case trying to get my son sent back to Greece. Who will win?

A.  You’ve stepped into the mystical world of the inchoate rights of caretakers of children who were abandoned by their biological parents.

Initially, with no dad in the picture, you’d be the only one with rights to legal and physical custody of your son. Assume you stayed in Greece caring for your son, even jointly with your mother, and then moved with him to Massachusetts. I believe, if your mother filed a Hague Kidnapping case, the court would deny her request because she had no legal right to your son’s custody.

But you let your mother have primary care of, and become your son’s psychological mother. You confirmed that intention when agreeing to the guardianship. So, if you now filed for custody of your son in Greece, that court would appoint an investigator who’d talk with all the necessary witnesses. I believe that report would recommend denial of your request.

The kidnapping convention’s primary focus is to have custody issues decided in the child’s habitual residence. Many cases have ruled that someone with inchoate rights to a child – rights that exist but have yet to be fully formed – give that person the “rights to custody”. So your mother has the right to ask for his return to Greece. If you fight you’ll lose the case, your mother, and your son.

My advice: accept reality. Stay in your son’s life in Greece, so he wins.

The smoothest way is often over stones.