chevron-down Created with Sketch Beta.
February 25, 2021 International Law

A Couple of Good Tools for Your International Child Custody Practice

By: David N. Schaffer

Often times, the UCCJEA as opposed to the Hague Convention can be a more direct, viable, and appropriate approach to getting a child returned, especially from the United States to where they were abducted from. 

Having one’s child or children abducted to or wrongfully retained in a foreign country can literally be a parent’s second or third worst nightmare.

Having one’s child or children abducted to or wrongfully retained in a foreign country can literally be a parent’s second or third worst nightmare.

Credit: Josh Willink via Pexels

So, what  is a "Hague" case?  Hague cases generally refer to international treaties affecting many different areas of law. The common element is that they are compiled by the Hague Conference in the Netherlands, Pursuant to the STATUTE OF THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW  "The purpose of the Hague Conference is to work for the progressive unification of the rules of private international law." There are about 41 different Hague Conventions or Treaties. While a good chunk of those cover the practice of family law, many do not. For example: There are Hague Conventions on, Civil Procedure, The Law Applicable to International Sales of Goods, Concerning the Recognition of the Legal Personality of Foreign Companies, Associations and Institutions, Conflicts of Laws Relating to the Form of Testamentary Dispositions, Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, the Law Applicable to Traffic Accidents, etc. The United States is not a signatory to many of the Hague conventions.

In the practice of International child custody The Hague Convention refers to The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. It is often referred to as the Hague Abduction Convention, or simply "the Convention". From their website: "The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted by a parent from one member country to another."

Convention cases are not abductions or kidnappings by strangers. These cases involve parents acting badly. It is important to note that the Convention has absolutely, and should have absolutely, nothing to do, with the best interests of the child. The Convention does not decide custody. The Convention is more interested in returning a child to the country that presumptively is where a custody case should be heard. In family law vernacular that would be the child's home state.  The Hague Abduction Convention does not care about "home state."  Rather, it is concerned with a child's "habitual residence" right before the wrongful abduction or retention. The words "home state" are nowhere to be found in the Hague Abduction Convention. 

Not all countries are signatories to the Convention. If both countries involved are not signatories, there can be no action under the Convention. As I will show you later, there are other ways of getting a child returned, especially if that child was wrongfully brought to or retained in the United States. In your custody practice, never assume that just because a country is a signatory to the Convention, that assures a child will be returned. The US Department of State yearly publishes its opinions on the compliance, or non-compliance of all Convention signatories. 

There are two and a half general pron1gs that must be met to invoke remedies of the Hague Convention.  First, that the child was wrongfully removed from the country of his or her habitual residence, or wrongfully retained in the other country. Second, the left-behind parent had legally recognized rights of custody or access to the child, and he or she was exercising those rights at the time of the wrongful removal or retention. Note the qualifier "wrongful."  If the parties agree say that mom can take the kids to France to visit their maternal grandparents for the summer that is not a wrongful removal. But if she then refuses to return them to the US, as previously agreed, that is a wrongful retention. If say, a father does not like how a custody battle is going and one night, without mom's knowledge or approval, flies them out of the country, that is an abduction. That is a wrongful removal.  

Now for the Uniform Child Custody Jurisdiction and Enforcement Act, or “UCCJEA.” This uniform act has been adopted by all the states except Massachusetts. The cited section numbers may vary slightly in each state.  I am referencing Illinois’ code.

Section 305 of the UCCJEA is very straightforward. Pursuant to the UCCJEA or Act, a foreign country is treated just like another state. “(a) A child-custody determination issued by a court of another state (or country) may be registered in this State, with or without a simultaneous request for enforcement, by sending to the circuit court in this State.”

The Act lays out detailed instructions for registering the foreign (meaning from another state or another country) custody determination. Basically, a request to register a foreign custody determination is fairly automatic unless the other party timely and successfully asserts at least one of the only three defenses to such registration. Of note, there is a provision in the Act that  “A court need not apply the Act if the child custody law of a foreign country violates fundamental principles of human rights.”  

The defenses of objections to registration:

“(1) the issuing court did not have jurisdiction under Article 2;

Basically, a child must reside in the state/foreign country, at least six months before commencing initial custody proceedings there. Unlike the Convention, the UCCJEA does deal with actual child custody litigation.

 (2) the child-custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under Article 2; or

Basically, the order or judgment sought to be registered is the last order entered in that court. It does not have to be the final order, just the last.

(3) the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of Section 108 [750 ILCS 36/108], in the proceedings before the court that issued the order for which registration is sought.

Procedural due process.

Of course, one needs a viable custody determination from the foreign jurisdiction before invocation of the UCCJEA.  If one does exist, the plan would be to register it in the State where the child is currently located, for enforcement.  Thereafter the family court can order the child returned.  Much more efficient than a Hague Convention.  Of course, the UCCJEA can only be used if the child is wrongfully in the United States, as foreign countries have not adopted the Act nor, generally are they bound by it.

Having one’s child or children abducted to or wrongfully retained in a foreign country can literally be a parent’s second or third worst nightmare. The stakes in such a case could not be higher. While this article touches on the Hague Convention and UCCJEA, it should not be a substitute for completely reading, digesting, and “owning” these laws before getting into an actual case. That said, please do not hesitate to contact me if I can be of any assistance or guidance in an international custody case you are considering taking on or have started.   

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

    David N. Schaffer

    Esq., Naperville, IL

    I especially like practicing “esoteric” family law, like having a Russian Federation Supreme Court custody decision overruled by my local jurisdiction. I am an active fellow of both the American Academy of Matrimonial Lawyers and International Academy of Family Lawyers. Having practiced so far for more than 36 years I feel a responsibility to the profession to help make sure less “seasoned” lawyers are trained and prepared for the future.