April 7, 2016
The “Convention on the Civil Aspects of International Child Abduction,” commonly called the Hague Convention, has been adopted by over 90 nations.
It attempts to standardize and expedite the return of children and/or facilitate the exercise of visitation rights concerning children who are wrongly moved internationally, often in violation of family court orders.
This comment provides a very brief and incomplete educational overview of this difficult and tragic topic. Always consult an experienced family law attorney with particular expertise in international custody cases in specific situations.
The United States became a Hague Convention adoptee in 1988 and its provisions apply to U.S. related child abductions occurring after the adoption date. The Hague Convention is implemented by a U.S. federal statute, the International Child Abduction Remedies Act (ICARA). There are numerous governmental and private Web sources containing information and forms.
The following is a brief and incomplete overview of Hague Convention legal actions.
1. Hague Convention petitions may be filed in either state or federal court. Where to file is a strategic consideration. A complicating factor in any case is the active involvement of a governmental official, perhaps even taking custody of the child, particularly in a foreign nation.
2. The Hague Convention envisions (in theory at least) a mandatory and immediate return of a child under the age of 16 when less than one year has elapsed from the date of the wrongful act. Return is discretionary if more than one year has passed. Return of the child is not based upon the legal and factual merits of the underlying custody hearing. However, for reasons listed below, courts do not automatically grant Hague Convention petitions.
3. Promptly appeal a denial by a trial court. In federal court, this may require the filing of a notice of appeal within 30 days after entry of the judgment (Federal Rules of Appellate Procedure 4). State court time periods for filing a notice of appeal may vary. Failure to timely appeal ends the case. This is a critical jurisdictional (ability to hear the case) matter.
4. The child must have been a “habitual resident” of a nation in which the petition originated. Of course, both nations involved must have adopted the Hague Convention.
5. “Wrongful removal” may occur before the actual date of the custody order and involves intent not to return. It must, however, be contrary to parental rights. The concept of “wrongful” is broadly interpreted. A custody order is always preferable and should typically be obtained prior to initiating a Hague Convention action.
6. Not all nations recognize an equal right of parental custody prior to a divorce and a given nation may give the mother superior rights, particularly if the child’s parents are not lawfully married. This requires investigation.
7. Speed in filing a Hague Convention case is critical. The longer the passage of time, the more potentially possible it becomes that a court will conclude that the child is settled in the new environment and deny the petition. A related issue is if the petitioning parent has ever attempted to exercise her or his custody or visitation rights.
8. If there is concern that the abductor may flee with the child, one should obtain a judicially signed Order for Issuance of Warrant in Lieu of Writ of Habeas Corpus to allow the child to be immediately taken into custody. A somewhat archaic court order, the Writ of Ne Exeat Republica (“let him not go out of the republic”), might sometimes be available to detain the kidnapper. However, simply impounding a passport is the modern functional equivalent. An experienced attorney will be knowledgeable concerning the appropriate procedure to utilize in a specific situation.
9. Challenges to a Hague Convention petition include that the petitioner had no right of custody or access, the petitioner agreed to the removal or retention, that the child is of an age to object to the return, and that return would subject the child to a “grave risk.” “Grave risk” must be proven by clear and convincing evidence and may relate to issues surrounding the national environment or the parent. Will the child be in physical or psychological harm or otherwise placed in an intolerable situation? While a court has ultimate discretion to order a return, raising a question of grave risk may transform the proceedings into a de facto custody hearing.
10. Hague Convention hearings are to be expedited. The United States mandates that attorney’s fees and expenses be awarded to a successful applicant. This will not necessarily apply outside of the U.S. and a court may consider the financial resources of a party. Of course, typical debt collection issues may occur.
11. Hague Convention cases may be difficult due to (among other issues) initial problems in locating the missing parent and child, communication and translation issues, movement of the child from nation to nation, and overall expenses. Consulting an advocacy organization may be helpful. Research the numerous Web-based public and private resources.
12. Several related actions involve contacting the National Center for Missing and Exploited Children, attempting to obtain passport restrictions and alerts, and utilizing the provisions of legislation such as the International Parental Kidnapping Act, the Uniform Child Abduction Prevention Act, and the Uniform Child Custody Jurisdiction and Enforcement Act. Initiate a judicial action for interference with custody. Contact both state and federal law enforcement officials.
Federal and state criminal kidnapping statutes may be violated. Obtaining the return of the child must be an effort on multiple fronts. The services of a skilled internationally competent private investigator may be useful. Be aware that there is also a “Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption” that may or may not be applicable in a specific situation. A successful case will likely require a team of competent professionals.
This comment provides a brief and incomplete educational introduction to a difficult topic and is not intended to provide legal advice. Always consult an experienced attorney in specific situations.
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