China's Child Custody Laws: Dual Nationals Beware

Not sure if there was a recent revision to the U.S. State Department's page on China's handling of child abductions, but it just showed up as new on a search and new or not, it warrants a post.  The State Department website is a great source for basic information regarding Chinese law and its page on Chinese court treatment of international custody disputes is no different.   

The site notes China "is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, nor are there any international or bilateral treaties in force between China and the United States dealing with international parental child abduction."  This means American citizens in China come under the jurisdiction of China's local courts and "American citizens planning a trip to China with dual national children should bear this in mind." 

China does not generally enforce foreign court judgments (for more on this go to my previous post, entitled, "Enforcing Foreign Judgments in China -- Let's Sue Twice") and it also not recognize dual nationality and this combination of legal policy can cause big problems for those with children who are dual national Chinese:

Dual nationality is not recognized under Chinese law. Some U.S. citizens who are also Chinese nationals (mostly U.S.-born children of Chinese nationals or Legal permanent Permanent Residents) have experienced difficulty entering and departing China on U.S. passports. In some cases, such dual nationals are required to use Chinese travel documents to depart China. Normally this causes inconvenience but no significant problems for affected persons; however, in child custody disputes, the ability of dual national children to depart from China could be affected.

Generally, children who are Chinese nationals according to Chinese law are not permitted to depart China if one parent refuses to allow the travel requested by one parent, even if that parent is considered an abducting parent by United States courts. In those cases, children abducted to China are only permitted to return to the United States if both parents agree to their return, or if a Chinese court upholds a United States Court's decision to allow the left-behind parent sole custody.

This means U.S. family law judges are going to be very reluctant to allow dual nationals to go with or visit a divorced or separated parent in China.  Both Hong Kong and Macau are signatory parties to the Hague Convention on abductions so the above does not apply to either of those places.