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Family law practitioners often encounter “garden variety” custody disputes where parents snatch a child back and forth, but when a parent crosses an international border, the case implicates a multilateral treaty that often is uncharted territory. Knowing where to start is intimidating. Here are some of the most important guiding principles for navigating a case arising under the Hague Convention on the Civil Aspects of International Child Abduction.
What is the Hague Convention on the Civil Aspects of International Child Abduction?
Adopted in 1980 at the Hague Conference on Private International Law, the United States ratified the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) in 1988 and implemented it by means of the International Child Abduction Remedies Act (“ICARA”).
The Hague Convention applies only between countries that are parties to it. Currently, 82 sovereign nations have signed or ratified the treaty. Countries including, but not limited to China, India, Russia, countries in Africa and the Middle East and Japan are not parties.
The treaty’s stated objectives are twofold: (1) to secure the prompt return of children wrongfully removed to, or retained in any contracting country outside of their home country by the other parent; and (2) to ensure that rights of custody and of access under the law of one contracting country are effectively respected in another country. In essence, it provides a civil law mechanism for a parent to petition the court in a jurisdiction where his or her child has been abducted or in which the child is retained for return to his or her home country. The child must be under the age of 16 at the time of the filing of the petition.
In a wrongful removal case, the non-custodial parent absconds to another country with the child without the consent of the custodial parent. In a wrongful retention case, one parent travels overseas with the child during the summer or for a holiday and then refuses to return the child to the other parent in the child’s home country at the end of the vacation.
“Abduction” as used in the title of the Hague Convention is not a criminal term. The term is shorthand for the phrase "wrongful removal or retention," which is used throughout the text of the treaty.
“Habitual residence” is the child’s home country; i.e., where the child has lived for a significant amount of time. A child can have only one habitual residence, so the court must look back in time to where the child lived prior to the abduction. While the term is not uniformly defined, courts look to the place where the child has been physically present for an amount of time sufficient for “acclimatization” and which has a degree of “settled purpose” from the child’s perspective.
“Wrongful removal” generally refers to the taking of a child from the person who was actually exercising custody of the child at the time under the law of the child’s habitual residence.
“Wrongful retention” means the act of keeping the child without the consent of the parent who was actually exercising custody under the law of the child’s habitual residence.
“Rights of Custody” arise (1) by operation of law; (2) by reason of a judicial or administrative decision; or (3) by an enforceable agreement under the law of the country of the child’s habitual residence. The laws of the country where the child habitually resided prior to the wrongful removal or retention therefore apply in determining whether or not a party had “rights of custody” at the time of removal or retention. Recently, the United States Supreme Court issued a ruling in Abbott v. Abbott, 130 S.Ct. 1983 (2010) stressing the importance of uniform meanings of terms in the Hague Convention, and focusing on the key term “rights of custody.” The ruling defined such rights broadly, including ne exeat rights; i.e., a right to decide the child’s residence.
“Actually Exercising” rights of custody means the parent with such rights would have continued to exercise them but for the abduction of the child. Courts liberally find exercise of rights when a parent has or seeks contact with the child. Failing to exercise rights of custody would amount to acts such as abandonment. A court need not determine whether or not the parent exercised the custody rights well or badly, as those matters go to the merits of the custody dispute and therefore are beyond the court’s subject matter jurisdiction.
Assistance from Central Authorities
Each country party to the Hague Convention designates a Central Authority, a specific government office, to carry out specialized duties in international parental abduction cases. Central Authorities communicate with each other and assist parents in filing applications for return of or for access to their children under the Hague Convention. The Department of State is the designated U.S. Central Authority. The Department’s Office of Children’s Issues within the Bureau of Consular Affairs administers the day-to-day functions of the U.S. Central Authority and is a valuable resource for an attorney working on a Hague Convention case. More information and materials are available at http://travel.state.gov/abduction/.
File a petition for return of the child in the Federal or State court where the child is located.
Jurisdiction and Where to File: State or Federal Court?
Federal and State courts have concurrent jurisdiction to determine claims arising under the Hague Convention. Once a parent locates the child (perhaps with the assistance of a private investigator), expeditious court action is critical to ensuring the abducted child’s return to his or her home country. A petition for return must be filed where the child is actually located, but the treaty allows for a petitioner to seek relief in either federal or state court. Considering the treaty aspires to have a disposition of a case within six weeks, the fast docket in federal court may be well suited to meet that goal. Additionally, federal courts are typically more removed from “best interest” inquiries that are more likely the subject of custody disputes brought in state courts.
Ultimate Goal to Keep in Mind
The remedy is return of a child to his or her habitual residence. In sum, a petition under the Hague Convention seeks restoration of the status quo prior to a parent’s wrongful removal or retention of the child. It is crucial to note that a court’s inquiry is limited to determining whether or not a child must be returned under the Hague Convention, and not the merits of any underlying custody dispute. This narrow scope prevents forum shopping for parents attempting to find a more favorable forum for deciding a custody dispute. Hence, the Hague Convention is a jurisdictional treaty because the child’s home country retains substantive jurisdiction over custody matters.
Burden of Proof
The petitioner bears the burden to prove by a preponderance of the evidence that a child has been wrongfully removed or retained within the meaning of the Convention. A respondent opposing the return of a child under the Convention has the opportunity to raise certain limited exceptions to the return mandate of the Hague Convention, which must be proven by clear and convincing evidence. Note that these limited exceptions are not affirmative defenses. Additionally, a respondent may challenge the petitioning parent’s underlying claims in defending the case as more particular explained below.
Petitioner’s Burden to Prove 3 Elements of a Prima Facie Case:
Petitioner must demonstrate by a preponderance of the evidence that:
Timing is crucial. If a petitioner establishes a prima facie case and less than one year has elapsed between wrongful removal or retention and the filing of the petition, then the court must order the child’s return to his or her country of habitual residence “forthwith.” There are, however, several narrow, discretionary exceptions to this mandatory order of return.
Limited Exceptions to Order of Return
The court's mandatory order of return becomes discretionary (yet still very narrowly construed) in certain exceptional cases where the respondent proves by clear and convincing evidence that:
Additionally, the court is not absolutely bound to order the return of the child if the respondent proves by a preponderance of the evidence that:
Finally, the court may deny a petition if it finds that the child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child's views (the treaty does not establish at what age children reach this level of maturity – the age and the degree of weight given to a child's views varies from country to country).
Even if the respondent meets the particular burdens stated above, the court has discretion to order the return of the child if it would further the aim of the Hague Convention which is to provide for the return of a wrongfully removed child.
In furtherance of the objectives of the Hague Convention, a court may take appropriate measures under federal or state law to protect the well-being of the child, or to prevent further removal or concealment of the child by the abductor prior to the evidentiary trial of the petition. Provisional remedies include orders requesting a warrant to retrieve the child; transfer of custody to the custodial child pending trial; preventing removal of the child from the jurisdiction; taking into safe-keeping all travel documents of the respondent and child, and similar appropriate remedies, if applicable, under ICARA and your state’s Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Additionally, you should review state, federal and foreign laws regarding potential criminal offenses related to kidnapping and abduction.
Relaxed Evidentiary Standards
Evidence rules are relaxed, meaning that a court may directly take notice of the law of the contracting country, or foreign decisions without resorting to specific procedures of proof. ICARA supports this principle, affirming that documents included in any petition or submission do not require authentication to be admissible.
Attorneys’ Fees and Costs
If the court orders that the child is to be returned to his or her habitual residence, then ICARA governs the payment of costs, legal fees, travel and related expenses associated with the case. While a petitioner may initially advance the costs, a petitioner is entitled, and a court is mandated, unless an award would be “clearly inappropriate,” to require the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of the proceedings in the action, lodging and transportation costs related to the return of the child. The purpose of ICARA’s provision regarding fees and costs is to deter these actions and to restore the petitioner to his or her financial position had there been no removal or retention.
A Few Preventative Measures and Tips for the Family Law Practitioner
Abduction cases rely heavily on fact, not on assumed logic, so it is imperative to consider certain guidelines from the U.S. State Department, Office of Children’s Issues, which is an informative source on the topic. See the website given above for further information and review the Children’s Passport Issuance Alert Program and the two parent signature law for application for a passport for a minor under the age of 16. Some states in the U.S. and in foreign countries may consider both parents to have default, equal custodial rights unless there is a formal custody order in place. Consequently, separated or divorced parents, even if never legally married, should consider whether or not it is advisable to have language in a custody order clearly stating the parties’ expectations about their child’s foreign (or even domestic) travel with parents and others. The parties may need a provision in their custody order that clearly states certain travel restrictions such as the child is prohibited from traveling a certain distance without the permission of both parents, or provisions ordering a non-custodial parent visiting a foreign country to obtain a mirror order from the foreign country stating that the custody order is enforceable there prior to departure.
About the Author
Irene Patrice King is a partner with the Charlotte law firm, James, McElroy & Diehl, P.A. She practices in the area of family law, including cases arising under the Hague Convention.