Defense arguments in Hague kidnapping cases


January 4, 2016

Source: Gerald Nissenbaum/ Boston Herald

 Q- I’m not worried about my being able to prove that my wife wrongfully removed our three children from our home in Bonneval-sur-Arc, France, to Massachusetts. But I’d like to know what defenses she can raise to avoid an order that the children must be returned home.
A.C., Bonneval-sur-Arc, France

The_Hague_Convention_Sivil

A- To prevent the return of your children to France, your wife needs to prove one of the following seven defenses permitted under the Hague Convention on the Civil Aspects of International Child 
Abduction.

• You consented to the removal.

• You agreed to the children 
remaining where the children have been taken (Article 13 (a)).

• You were not exercising your custodial rights at the time of the wrongful removal or retention.

• If returned, the children would be exposed to psychological or physical harm or otherwise placed in an “intolerable situation” (Article 13 (b)).

• If the children are of an age and maturity such that it is appropriate to take account of their views (Article 13 (b)).

• That the children’s human rights and fundamental freedom would be abridged if they were 
returned (Article 20).

• If the proceeding requesting a return was not filed in court in the place where the child was taken within one year after the wrongful removal or retention and “the child is now settled in its new environment” (Article 12).

As quickly as possible, if not sooner, the left-behind parent must start a court case in the place where the children were taken. This assumes the left behind parent knows where the children were taken — something known most of the time. Ask the French Central Authority to put you in touch with its USA counterpart and get you the names of Massachusetts lawyers experienced in this kind of kidnapping case.

Also ask the children’s pediatrician for an affidavit that when the children came for their appointments, you were with them. Get your friends and the children’s teachers to write affidavits saying you often played with the children, took them to various activities, school, etc. Prepare your own 
detailed affidavit. Parents who just do a few things with their children get court orders sending their children back home.

The goal of the Convention is to quickly get children back to their habitual residence. That is where the witnesses with the best and most recent evidence are located. That’s why the local court in the children’s habitual residence court is best able to decide custody and the related issues.

Child Abduction Recovery Services

You can get a lot more information about this by going to my website, nissenbaumhickey.com, use the key word kidnapping, or link to Amazon to buy my ebook titled “Kidnapping.”

Be patient. Cool your jets while your wife does everything she can to delay. She’s a rookie at this. But this isn’t the court’s first rodeo.

Gerald L. Nissenbaum has been a trial lawyer in Boston since 1967 and concentrates his practice on family law. Any legal advice in this column is general in nature, and does not establish a lawyer-client relationship. Send questions to dear jerry@bostonherald.com.

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