The Hague Convention on Child Abduction

When one parent takes children to another country, or keeps them in another country after a visit, and the other parent disagrees with this action, the first legal tool available to address the situation is usually a treaty called the Hague Convention on the Civil Aspects of International Child Abduction.
Family breakups nearly always make for conflict and uncertainty, but especially when the parents are living and working overseas or are of two different nationalities. In the military, both of these complicating factors are widespread.

The Hague Convention provides for the immediate return of children internationally abducted from one parent, usually by the other parent. It applies in nearly all of Europe, including some of the former Soviet and Yugoslav republics, and other Westernized countries around the world. It also includes a few countries in Africa, South America, and the pro-Western margins of the Middle East. The treaty is not concerned with substantive custody questions, or even with jurisdiction, but with sending children back where they came from after making a determination about a very limited set of factual questions—sort of like extradition.

Basic elements

A child must be returned when the following conditions are satisfied:

(1) A child under age 16 lived (had “habitual residence”) in a country that was a member of the Convention. (2) Someone removed or retained the child outside of that country. (3) That violated another person’s “rights of custody.” (The treaty’s shorthand term for this is “wrongful removal.”) (4) Now the child is in another country that is a member of the Convention.

But a court may choose not to return a child if one of the following defenses is proved:

(1) The person who wants the child back (the petitioner) consented or acquiesced to the removal/retention. (2) The petitioner was not actually exercising custody rights at the time. (3) Return would cause the child a grave risk of physical or psychological harm or an intolerable situation. (4) The child objects to being returned, and is mature enough to do so. (5) The case was filed with the court more than a year after the removal/ retention, and the child is now settled in the new environment.

These defenses are usually narrowly construed, and burdens of proof for them, as well as for the prima facie case, are set out in the U.S. implementing legislation, the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610. Defenses are not absolute bars to return; the court still may return the child even if a defense is proved.

Three of these issues are often especially difficult in cases involving military families: habitual residence, exercise of custody rights, and the passage of time after abduction.

Exercise of custody rights

What are “custody rights”? The term is defined broadly and sometimes depends on foreign law. Usually, even visitation counts, as long as it has been exercised. Also, “the right to determine the child’s place of residence” counts; so, if there is a court order or a statute that gives one parent a veto over the child’s leaving the country, that parent has custody rights. If there has not yet been a custody order, both parents have the primordial custody rights that their country’s law gives them. The Convention protects rights arising by operation of law, not just those granted by courts.

When a servicemember places his or her child with the other parent or a relative, with or without a formal family care plan, is the servicemember still exercising custody rights? A number of cases, involving both military and civilian families, say yes. The parent is still acting as the parent and exercising control over where the child lives, even though the child is not living with the parent. Harkness v. Harkness, 227 Mich. App. 581, 577 N.W.2d 116 (1998); In re Parentage of Appel, No. 47283-6-I (Wash. App. Div. 1, 11/20/2000); Malkie v. Malkie (a.k.a. Campardon), Arlington Co., Va. Juv. Dom. Rel. Dist. Ct. Case No. J-19799-02 (8/25/00).

Habitual residence

The term “habitual residence” is supposed to be so simple that it need not be defined. It does not require six months’ residency, as the UCCJEA’s “home state” standard does. A determination of habitual residence focuses not on the parents’ individual intentions, but on the child’s objective circumstances. It looks for circumstances that would create “a degree of settled purpose from the child’s perspective,” but that does not mean looking into the individual child’s opinions. Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993); Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995); Mozes v. Mozes, 239 F.3d 1067 (9th Cir., 2001); Johnson v. Johnson, No. 7505-1995 (Swed. Sup. Admin. Ct. 1996).

Living on a base. A U.S. military base abroad is not U.S. territory, and living there creates foreign, not U.S., habitual residence. Also, habitual residence derives from the place a child lives, not the nationality of the parent. Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993).

Permanence of living arrangement. When people are in a foreign country for a defined time and purpose with a common home to return to and a common plan to do so, they usually are not “habitual residents” in the foreign country. But the more common situation for military families is to be posted in a foreign country for a time that may be extended and not to be completely sure where the next posting will be. That usually means that habitual residence is where they are now. Harkness v. Harkness, 227 Mich. App. 581, 577 N.W.2d 116 (1998); Zuker v. Andrews, 181 F.3d 81 (1st Cir. 1999); Ostevoll v. Ostevoll, 2000 U.S. Dist. LEXIS 16178 (S.D. Ohio 8/16/2000); In re Morris, 55 F. Supp. 2d 1156, 1161 (D. Colo. 1999).

Passage of time

How much time does a parent have to use the Hague Convention? Article 12 says that if more than one year has elapsed between the wrongful removal or retention and the time of the parent’s filing of the Hague Convention case in the country to which the child was taken, then the judge can consider the child’s adjustment to the new environment as a reason for not returning the child.

Note, however:

  • It is not a statute of limitations. The parent can still ask for the child to be returned, even if a year has passed. A judge has complete discretion to return the child.

  • The one-year period ends when the case is filed. Further delaying resolution of the case after filing will not help the abductor. Get the case filed in the other country’s courts within the one-year period whenever possible, even if negotiations are going well.

  • If less than one year from filing, the abductor cannot argue that the child is settled in the new home.

  • The period is not “tolled” by the petitioner’s serving in a war zone, not being able to find out what country the child is in, or by anything else. But these factors might affect the judge’s decision on whether to return the child despite the passage of time.

How the process works

Every country has an agency that acts as the “Central Authority” to deal with Hague Convention cases. After an abduction, the left-behind parent files a “Hague Convention Application” with his or her own country’s central authority. (He or she also is allowed to file directly with the central authority of the country to which the child has been taken). The first country’s central authority sends the application to the central authority of the country to which the child was taken. That agency helps the parent find a lawyer in the locality where the child is. The lawyer files a Hague Convention petition in the appropriate local court. That court decides the case.

In the U.S., the International Division of the National Center for Missing and Exploited Children (NCMEC) is the central authority for cases of children taken to the U.S. For children taken from the U.S., the central authority is the U.S. State Department Office of Children’s Issues.

Procedural and tactical tips

  • Pick a court: A Hague case can be filed in federal court or in the state court covering the place where the child is believed to be.

  • Read ICARA: Besides the text of the treaty, the federal implementing statute is vital to trying a Hague case. The International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601-11610, sets out procedural shortcuts, burdens of proof for various elements of a Hague case, and directions to the judge on handling certain issues, including fee and cost awards.

  • Speed and priority: The treaty and ICARA direct that Hague Convention petitions should be decided on the merits within six weeks of filing. Any proceedings on the merits of custody are suspended until the Hague Convention proceeding is finished.

  • Prepare to try all elements and defenses: There is often no discovery and no responsive pleadings, so petitioner’s lawyers never know what issues the defense, or the judge sua sponte, will raise. Both sides should be armed with memoranda of law, giving the essential case law on every prong of the Convention, and explore the facts on every angle when interviewing clients.

  • Documents and evidence: Several provisions of the Hague Convention make it easier to admit documents and translations, foreign laws, and out-of-state testimony. Articles 14 and 24 provide for translations of all relevant documents and laws to be sent by the foreign central authority and let courts take judicial notice of foreign laws and court or administrative rulings without the usual formalities, such as certified copies, etc. Article 30 says that a Hague Convention petition, and anything sent along with it by the central authority, is admissible in any court. Section 6 of the federal implementing statute, ICARA (which, like the treaty, preempts state court rules) makes clear that anything sent later by the foreign central authority is admissible, and no authentication of it can be required.

  • Attorney’s fees and client’s costs: A petitioner who wins her case should have an easier time getting a fee award than in the average family law case. Under ICARA, when the petitioner wins, the defendant pays the petitioner’s legal fees and all travel costs, unless he or she proves this to be “clearly inappropriate. FA

Fending off "red herrings"

The following issues usually are raised in Hague cases, but are not relevant:

  • Custody jurisdiction/personal jurisdiction: It doesn’t matter whether any state or country involved has custody jurisdiction or personal jurisdiction. A Hague case is not a custody case or even a jurisdiction case.

  • Citizenship, legal residency, domicile, immigration status: None of these are prerequisites or defenses to return. Habitual residence is simply where a child lived.

  • Petitioner’s location: It does not matter if the petitioner lived in the country from which the child was taken. The treaty does not make it relevant. Why does that make sense? (1) Even when the parent and child live in different countries, they can have a vital relationship, and abducting and hiding a child can destroy that relationship. (2) Even if the child is not hidden, relocation can vastly change the relationship. Some countries are farther apart than others.

  • Best interests: Any best-interests determination must wait for the actual custody case (which is stayed until the Hague case is resolved). A court that isn’t in the child’s home country, or where both parties have not marshaled their evidence on the best-interests issue, simply does not have enough information to address the issue.

  • Child representation: Because guardians ad litem are trained to investigate and advocate the best interests of the child, appointing one is usually unnecessary and can cause delay, expense, and confusion in a Hague case, especially if the GAL is not already an expert in the Convention. The treaty does not make children parties to these cases, and makes their views relevant only when they are mature.

  • "Wrongfulness:" "Wrongfully removed or retained" is a term of art, defined in the Convention as a breach of custody rights that were actually being exercised, or that would have been were it not for the abduction or retention. It does not mean or require illegal or immoral conduct.

John Crouch practices family law in Arlington, Virginia. His practice emphasizes international and interstate issues, and serves many military, diplomatic and other international families. He is a former co-chair of the ABA’s Child Custody Committee.

Published in Family Advocate, Volume 28, No. 2, Fall 2005. © 2005 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.