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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.
A child must be returned when the following conditions are satisfied:
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.
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).
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).
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.
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.
The following issues usually are raised in Hague cases, but are not relevant:
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.