As we move into our economic and monetary future, we increasingly move toward an integrated international economy and lifestyle. No longer is it unusual to become employed by a domestic company, but still have a position which calls for extensive travel, or even living in another country - at least for a period of time. And so follows that many relationships will also become international in one form or another.
This sometimes brings about potential complications, particularly in the area of children and child custody. The United States is a signatory country to a treaty known as The Hague Convention on the Civil Aspects of Child Abduction. Many other western-line countries are signatory countries and have this same treaty.
As a signatory country, our Congress has implemented its provisions, including the International Child Abduction Remedies Act (ICARA), 102 Stat 437. 42 U.S.C. 11601 et. seq.. ICARA was designed in 1980 in response to the problem of child abductions during domestic disputes. ICARA provides for specific procedures, expedited proceedings, remedies and affirmative defenses which may assist a parent facing international custody problems. This article focuses on the affirmative defenses for the parent who removes the child against the other parent’s wishes or knowledge.
Under ICARA, a petition can be filed by a parent alleging that the other parent has wrongfully removed the child or children from the country of habitual residence. This sets in motion procedures designed to expedite the return of the child/children to the country of habitual residence. The determination as to whether or what country is the country of habitual residence is one of the factors the court must examine initially. Whatever country is deemed the habitual residence is where matters both civil and criminal are to proceed—unless there is a successful defense.
Specifically, there are affirmative defenses a parent may use for having removed the child from the country of habitual residence. Those defenses may be used to attempt to persuade, based on facts and evidence, the foreign court to allow for an exception to the child/children returning to the country of habitual residence.
Those affirmative defenses are essentially that the child is now settled in the new country and more than a year of time has passed prior to the left behind parent filing the petition; that the left behind parent acquiesced or consented to the child removal from the country of habitual residence; that child is a mature child and wishes to remain in the country and has not been unduly influenced by the other parent; and that the return of the child would place the child at grave risk of harm and intolerable situation. If established, a return order may not issue under ICARA.
A parent should remember that even with an affirmative defense being proved by a preponderance of the evidence, the Court still may be allowed to return the child to the country of habitual residence. Thus, it is prudent to have skilled legal counsel. Ciyou & Dixon, P.C. advocates handle child custody cases of all types throughout the State of Indiana and Abroad. This blog is not intended to be legal advice or a solicitation for legal services. It is an advertisement.