Table of Contents
- International child custody laws.
- International child custody and abduction laws.
- Recourse when a child is wrongfully taken to a foreign country.
- Determining which country’s rules should apply.
- International parental kidnapping.
- What is the Hague Convention?
- What kinds of cases fall under the Hague child abduction Convention?
- What remedies are available under the Hague Convention?
- What is a “habitual residence?”
- What is “wrongful removal or retention?”
- Defenses to the petition for return of a child.
- Are there any defenses to a claim of wrongful removal or retention of a child under the Hague Convention?
- Legal hurdles and the return of a kidnapped child to the United States?
- International relocation or move away cases.
Illegal child abduction by a parent within the United States (or in other countries), whereby the abducting parent takes the child1 to another state, U.S. territory, or foreign country is not a new problem. In fact, with the world connected by numerous daily flights, international child abduction is easy to accomplish and a growing problem. Literally, a child may be taken almost anywhere in the world within a single day.2 This is where the nightmare begins for the parent left behind.
Additionally, an international relocation (move) with a child may be lawful; the child is not abducted but allowed by a court to move with one of his/her parents abroad. With a globally integrated economy, international relocation for work is common-place with multi-national companies. This too creates trauma for the non-custodial parent who remains behind in the U.S. While the parent remaining in the United States will get parenting time by Skype or the like and then potentially the summer with the child each year under the international application of the Indiana Parenting Time Guidelines3, this is a far cry from regular weekly in-person contact.
The key legal distinction for a parent facing an international child abduction or relocation of a child is to understand that one is unlawful (child abduction) and may be covered by international law and one is lawful (international relocation) and covered by any given state’s domestic laws and statutes.4 For international parental abduction, the Hague Convention on the Civil Aspect of International Child Abduction (“Hague Convention”) covers children who are wrongfully removed from their country of “habitual residence” and taken (and often secreted) abroad. It allows a court in a foreign country to issue a return order for the child to his state of “habitual residence.”
As noted above, the UCCJEA is to decide custody disputes between sister states by preventing parents from seeking custody in a different jurisdiction (state)—one that is not the child’s “home state”—in an attempt to obtain a more favorable custody order. The UCCJEA also has foreign application if a state court in the United States is trying to determine whether to return a child to a foreign country that has not ratified the Hague Convention. While it does not allow a state court to determine custody, it does allow it to enforce a child custody determination made in a foreign country under factual circumstances in substantial conformity with U.S. law. This ordinarily means a child is sent back to the non-Hague state unless doing so presents a serious risk of emotional or physical harm to the child or the foreign county laws violate basic human rights as identified by the United Nations. However, and again, the UCCJEA only applies in United States in cases where the foreign country has not ratified the Hague Convention.
These bodies of law (the Hague Convention and UCCJEA) operate differently and only one applies in any given case. International relocation is governed by Indiana’s relocation statutes and interpretational caselaw.
International child custody laws.
With respect to determining and deciding child custody between parents, such as which parent gets custody in the best interests of the child, there are no international child custody laws, treaties, or compacts. All child custody decisions and subsequent modifications of custody (to the other parent) are controlled by the law of the respective state in the United States. The same is the case abroad, and the controlling laws of child custody are found at the national level or, in many cases, a political subdivision of a country (like a state in the United States). However, there are many companion treaties or pacts between countries that assist with matters related to children (and custody) and compliment substantive custody decisions made within any given country, such as child support. For instance, there are several European Union countries that are contracting parties to Protocol of 23 November 2007 on the Law on international recovery of child support and other forms of maintenance. In most international child abduction cases (illegal) and international child relocation cases (legal), these bodies of law do not apply and thus provide any remedy. This particular protocol addresses child support and aids with collection of child support across EU countries. In the final analysis, there is no significant body of international child custody laws.
International child custody and abduction laws.
As noted, there is no international child custody law to allow a court in a foreign country to decide custody of a child that has been brought into the foreign country by a foreign national or natural citizen who has been living abroad with a child under that foreign country’s child custody laws where custody has lawfully been decided in the country where the child was just living. However, there are three (3) bodies of law that may assist a citizen of Indiana (or other state in the United States) to obtain return of a child illegally taken abroad. The first is the Hague Convention. However, if both the United States and the foreign country have not ratified the Hague Convention, then the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) may apply if the child has been illegally brought into the United States against the other parent’s custody rights. The various appellate courts across the United States have applied UCCJEA in this situation. If the child wrongfully abducted is not in the United States, then comity may be the singular remedy for a parent whose child has been illegally removed from the United States by a parent and taken abroad. Comity is the legal concept that one country should ordinarily recognize and enforce another country’s orders or laws, which would be child custody laws or orders of the country where the child was removed from. If the foreign court does this, then it orders the child’s return.
Recourse when a child is wrongfully taken to a foreign country.
International child abduction typically is addressed through one of three (3) methods that all have costs and risks: The most common remedy is to obtain return of child wrongfully removed from his or her country of “habitual residence” by bringing a Hague Convention lawsuit in the country where the child has been taken and obtain a return order. The second recourse if the court is not a Hague Convention country is to try to obtain recognition of your custody rights or custody order of your foreign country and get a local court in the country the child has been taken to, to order his or her return. This is done under the legal principle know as comity. These as with Hague Convention cases are time consuming and often fraught with problems, particularly in some countries in the Middle East. The third remedy, which attorneys are rarely involved with and have some potential criminal considerations, is extraordinary or extrajudicial rendition of the child to his or her country of “habitual residence.” In short, return of a wrongfully removed child takes coordinated legal efforts in multiple countries with skilled lawyers and other professionals.
Determining which country’s rules should apply.
In almost all cases, the country whose law applies to determining who has custody rights or has custody is the country where the child has his/her “habitual residence”. This is where a child under sixteen (16) years of age had been a resident prior to the wrongful removal. The Hague Convention court merely orders return of the child to the country of “habitual residence.” That said, the reason for removal may, in fact, cause a basis for child modification upon return (in other words, the bad conditions that cause a parent to run with a child, may allow him or her to obtain custody upon return to the country of “habitual residence”). Under the UCCJEA, a child’s “home state” where litigation should occur, is where the child lived six (6) months prior to being taken to another state. This provision of the UCCJEA normally does not come into play under international application of UCCJEA. This act merely looks at if there was a valid order in substantial conformity with U.S. law, and if so, a return order is issued, unless of course there is some applicable defense.
International parental kidnapping.
International child parental kidnapping can happen in one of two ways. The first is simply when a parent flees with the child to another country and refuses to return. This was never begun with the approval of the other parent. The second is where a parent takes a child for holiday in another country and refuses to return. There are several variants of this situation, such as if a parent refuses to return the child after working abroad. In any event, the problem is still the same. The parent who has not agreed to the removal and retention abroad is left to sort through a dizzying array of remedies under complex international law.
However, assistance may be provided to the aggrieved parent by the relevant Central Authority, which in the United States is the Department of Justice’s Office of International Judicial Assistance. Under the Hague Convention, each member country or state must have a “Central Authority”; this is what make the Hague Convention work between member states (state to state, which means foreign “country”), which allows the litigant to shoulder the rest of the burden and be empowered to file a Hague Convention case with private counsel in the relevant court, notwithstanding the cost to do so. Bringing this suit is ordinarily not done by the Central Authority. In general, a Central Authority’s responsibilities under the Hague Convention are the following:
- Discover the location of a child allegedly abducted.
- Take provisional measures to prevent further harm to the child or interested parties.
- Arrange for the voluntary return of the child or an amicable resolution of the issues.
- Exchange information regarding the social background of the child where desirable.
- Provide general information about the law of the country in connection with the Convention.
- Initiate or facilitate judicial or administrative proceedings for the return of the child or the exercise of rights of access.
- Provide administrative arrangements for the safe return of the child as may be necessary.
- Keep other Central Authorities informed regarding the operation of the Convention and to eliminate obstacles to its operation.
Further, it will be necessary to have attorneys in each country, particularly for a petitioning party. Where the foreign country speaks English, it is a benefit. If not, a translators or multiple translators will be needed for counsel, trials, and document translations. In addition, great difficulties are presented in countries where the workdays do not overlap. This may create a situation where the attorneys or courts are operating after hours, sometimes even in the middle of the night to move the case forward. And the list goes on. For instance, a petitioning or responding party may have witnesses in the country of the child’s “habitual residence” or documentary evidence. Getting this evidence into an admissible format is a daunting task, although the evidentiary rules are relaxed in Hague Convention cases.
What is the Hague Convention?
The Hague Convention was adopted in 1980 to address international parental abduction in a timely manner. It is important to note that that the Hague Convention allows a court to decide the return of a child to his or her state (which is synonymous with the foreign country, not a state in the United States or state or other country) of “habitual residence”, but does not empower the judge to make a substantive custody decision pertaining to the child during the pendency of the Hague case. Custodial rights are determined by the law of the state of the child’s “habitual residence” or otherwise.5 In other words, the Hague Convention court cannot decide custody to find it has jurisdiction to determine the Hague Convention applies to decide return.
The Convention itself is a multilateral treaty developed by the Hague Conference on Private International Law that views international child abduction as a global problem in need of a coordinated global response. As such, it provides a legal framework to facilitate the return of a wrongfully removed child from his or her “habitual residence” to the aggrieved parent abroad in the member State in an expedited process.6 The Hague Convention only applies to member countries (“States”), which are countries that have signed off on and then ratified the Hague Convention. The most current list of Member countries can be found on the United States Department of State’s website under Bureau of Consular Affairs.
This raises the question of what actually happens in the United States if a parent wrongfully removes a child from any of our states and secretes him or her abroad.7 If the foreign country is a member state, then litigation will likely ensue under the Hague Convention in that country. Where this is not the case, comity controls and these cases are sometimes long and costly—and often unsuccessful. Comity is the general legal principle embodied in most legal systems in the world that recognizes that one country should recognize the other country’s law.8 Trying to litigate a case under comity has significant limits that are not covered in this article. Further in some litigation under the Hague Convention or comity, the child ages out of the jurisdiction of the Hague (i.e., he or she reaches the age of sixteen ). In cases where a child is brought into the United States and the foreign country is not a member state, the Uniform Child Custody Jurisdiction Act is applied to try to facilitate return or defend against a return order.9
At this point, a straight-forward Hague Convention case may not seem simple but legally complex and also difficult to impossible for a single litigant, particularly a petitioning party, to manage. It is. To assist readers in understanding what lies ahead in application of the Hague Convention litigation or cases tried under comity, some of the practical considerations are necessary to account for. For instance, in a significant number of cases, a parent left behind may not have any idea where in the world (literally) the child has been taken. At this point, private investigators may have to be engaged to conduct a global search. A great deal of the success of the Hague Convention falls on the petitioning parent, not the member state.
Ultimately, if your child is wrongfully removed from a country where the Hague Convention is the controlling law and retained in a member state, this will necessitate bringing a lawsuit in court in the member state to litigate so the court can determine if a return order (to send the child back) will be issued. This begins by filing a verified motion setting forth the facts that show the court has jurisdiction under the Hague Convention and seeking a return order to order the child returned to his or her country of “habitual residence.” This is the single remedy under the Hague Convention—a court either enters a return order or finds a valid defense to allow it to decline to issue a return order.
Under the International Child Abduction Remedies Act (“ICARA”),10 the party filing the Hague Convention action (i.e., the aggrieved parent) has the burden of proof to establish by a preponderance of the evidence that the child has been wrongfully withheld (removed, retained or access rights denied) within the meaning of the Hague Convention. A removal or retention in a foreign state is “wrongful” when it is in breach of the rights of custody attributed to a person under the laws of the country (called “State” under the Hague Convention) in which the child was habitually resident11 immediately before the removal. This is the threshold showing.
In particular, to prevail in this lawsuit and obtain a return order, the Hague Convention petitioner must prove the child was habitually resident in a given state at the time of the removal or retention; the removal or retention was in breach of the petitioner’s custody rights under the law of that state; and the petitioner was exercising his or her custody rights at the time of the removal or the detention. It is again important to note that a return order is not a custody determination. In fact, a child returned to his or her habitual residence could be legally then placed in the custody of the abducting parent and the responding party could be court-ordered to have no or limited contact with the child. The return order (or order denying return if that is the case) is simply an order that the child be returned to the jurisdiction which is most appropriate to determine custody and access of the petitioning parent. Under the focus of this article, this would be a return to the United States, which would mean the Hague Convention member state would issue a return order to the United States. Nevertheless, prevailing does not automatically mean the child is placed on a plane and returned the next day. Numerous delays are possible. For example, a return order issued in the United States, may be stayed pending appeal, further delaying the return of a child wrongfully removed from his or her state of habitual residence.
As may be expected, litigating these cases is expensive. Under ICARA, the petitioner bringing the Hague Convention action seeking a return order is generally required to bear the costs of attorney’s fees, including court costs and travel costs. That said, under ICARA, if the court does order a return, it also shall order the respondent (i.e., abducting parent who is the respondent) to pay the necessary expenses incurred by the petitioner, including legal fees, unless the respondent can establish this would be inappropriate. At this point it is key to note that it may be hard or impossible to recover attorney’s fees and costs from a respondent.
What kinds of cases fall under the Hague child abduction Convention?
The only cases that fall under the scope of the Hague Convention are with countries who have signed the Hague Convention and then ratified it. If this is the case, and a child is removed to another member country, then the legal system in that country can conduct proceedings to determine if the child must be returned to his/her country of “habitual residence”. The court in that foreign country can not determine if the custody should be modified. Ultimately, the foreign court either issues a return order to return the child to the country of his or her habitual residence or finds a defense to return, which are very few by statute and rare. If a country is not a member state and ratified the Hague Convention, it does not apply. Thus, the Hague Convention is very narrow in what remedies it provides a court. That said, if a court in a foreign country that decided a case under the Hague Convention issues a return order, it has the full powers to have the child remanded into the aggrieved parent’s care, custody and control and enforcement through police powers to ensure return.
What remedies are available under the Hague Convention?
While the Hague Convention is a significant body of international law governing children wrongfully taken to and retained in other countries who have ratified it, it has very narrow remedies. After what sometimes what amounts to days of hearings with testimony of lay and expert witnesses and admission of dozens of exhibits, a court in a member state can only issue a return order or find a defense to return is meritorious.
What is a “habitual residence?”
The country of “habitual residence” is where a child under sixteen (16) years of age lived for the six (6) months immediately preceding being taken to another Hague Convention state. A person can have only one habitual residence. It is the place where the individual ordinarily resides and routinely returns to after visiting other places. It is the place he or she would consider to be “home” and it is established as a matter of geography over a reasonably significant period of time. If the Hague Convention litigation is successful, the court will issue a return order to the child’s country of “habitual residence.” Any custody litigation necessary will then ensue there.
What is “wrongful removal or retention?”
Pursuant to the Hague Convention, a removal is wrongful when it is in breach of custody rights under the laws of the country of a child's “habitual residence” and where those custody rights were being exercised at the time of the removal. Thus, even if the parents are not divorced, the left-behind parent still has custody rights and access to a child if removed to another state. Wrongful removal is thus followed by keeping the child in the foreign state which is “wrongful retention” in that state. With successful Hague Convention litigation, the child will be ordered returned to his state of “habitual residence” by issuance of a return order.
Defenses to the petition for return of a child.
Under the Hague Convention or comity, as with every other type of lawsuit, there are potential defenses to a petition for a return of a child by a parent who claims the child was illicitly removed from his/her country of “habitual residence” (in Hague Convention cases) or defenses in non-Hague cases under principles of comity. The Hague Convention defenses are found within the law of the Hague Convention country who has codified the Hague Convention. They are narrow. That said, however, judges are vested with an extreme amount of discretion and, even if this is inadvertently abused, it may take a costly and time-consuming appeal to address improper denial of a return order by the finding of the judge of a valid defense to return. Under comity (for non-Hague Conventions countries), the range of defenses may be much broader. In Muslim countries where Sharia law controls, gender may provide a male with much greater defense to a return order.
Are there any defenses to a claim of wrongful removal or retention of a child under the Hague Convention?
Yes. Obviously, there could be legitimate reasons for parental removal of a child to a foreign jurisdiction. As may be expected, there are thus defenses to a return order or obligation of the court. There are three general defenses to return. The first is if the aggrieved parent had consented to or subsequently acquiesced to the removal or retention. This could be where the parent whose custody rights were impacted by the removal did not act for a long period of time. The second defense is where the evidence demonstrates that a child would face a grave risk of physical or psychological harm or an otherwise intolerable situation if returned. This may be the cases where there is an argument the laws of the member state might violate fundamental human rights, although the countries typically associated with these alleged legal lapses are not typically member states (i.e., they have not signed and ratified the Hague Convention). Finally, the Hague Convention allows a court to deny issuing a return order if a mature child objects to being returned. While this may seem odd, the age of consent and status of being considered an adult is below eighteen (18) in many member countries. Thus, a court may well decline to issue a return order based on the testimony of a mature teen.
Legal hurdles and the return of a kidnapped child to the United States?
Assuming Hague Convention litigation results in a return order, these cases can still drag on for long periods of time. This is problematic for several reasons. First, the “child” is no longer covered by the Hague Convention and bound by a return order once he turns sixteen (16) years of age. That said, perhaps the most common hurdle to return of the child to the United States after a Hague Convention court issues an order, is an appeal. With appeals, a trial court may stay a return order (not make it effective) until the abducting parent fully lodges and litigates all appeals available to him/her. Appeals may be subject to different courts and drag on for long periods of time. Ultimately, there are many legal hurdles to return a child to his country of “habitual residence” after a return order has issued.
International relocation or move away cases.
Unlike illegal removal of a child to another country, international relocation cases are ordinarily decided by a court before the child is allowed to relocate with a parent. In these cases, the court has to determine the relocation is in the child’s best interests and preserves the parental right of the non-relocating parent as he or she has a fundamental right to raise his or her child. In Indiana when a parent seeks to move abroad with his or her child, the non-relocating parent must be given notice of the intent to relocate and is able to object to it and seek a custody modification.12 The court weighs and balances the costs and benefits of this to the child and the parents. Ultimately, if relocation is allowed, the trial court normally provides as many provisions as is workable to ensure the non-relocating parent preserves his relationship with his or her child. This may include frequent Skype calls or facetime to give the non-relocating parent the entire summer vacation for parenting time.
How do courts determine whether to allow an international relocation?
All courts in the United States decide all custody matters on what is in the child’s best interests, balancing that against a parent’s fundamental constitutional right to parent. The court can consider any factor relevant to same. While no court takes international relocation lightly, as it obviously has a significant impact on the non-relocating parent and his or her relationship with the child. Ultimately, where a child is strongly bonded to a parent who has to relocate, the balance may tilt toward the court allowing international relocation. All in all, with every topic in this blog, good lawyering can do a great deal to advance your position and relationship with your child.
Ciyou & Dixon, P.C. advocates have handled international parental abduction cases under the Hague Convention and comity in Indiana courts. Additionally, if your child is wrongfully removed from the United States against your custody rights, the firm can partner with your counsel and law firm abroad to handle the Indiana legal aspect of your case. Is this your case? We are experienced in these cases and stand at the ready to be your advocate in connection with Hague Convention litigation or cases of parental abduction and return under principles of comity. Further, the firm regularly handles interstate and international relocation cases. This article is written for general educational purposes only. It is an advertisement.
- The term “child” is also used to include multiple “children” in this article as the controlling laws do not differentiate between a family with one child or multiple children. The term “child” is used merely for readability and includes “children”.
- It is important to note that an international parental abduction has some nexus with an international relocation case in that a parent and child(ren) may leave the United States and go live in another country. They only share that commonality. This is because international relocation cases are based on a lawful court order or absence of law preventing such relocation (such as in a case where a putative father has never established paternity and has no standing to object to international relocation). Additionally, in an initial paternity or divorce action in Indiana or upon filing a Notice of Intent to Relocate, a parent may be allowed an international relocation with a child, which may occur in the case of a job transfer abroad as is somewhat common with multi-national companies. On the other hand, and in stark contrast, an international parental abduction case is breach of the remaining parent’s custody rights under state and/or federal law and unlawful.
- Indiana Parenting Time Guideline Section III addresses parenting time when distance is a major factor.
- The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is a body of law adopted by all states where a parent removes a child illegally from his or her “home state” and takes him to a foreign state and starts litigation to try deprive the “home state” court of deciding the matter (normally the child is returned to his “home state” and the litigation occurs there.
- There are no international child custody laws per se. There are treaties and concepts of law, such as comity, that different countries use to enforce (or decline to enforce) another county’s child custody laws usually contained in written orders.
- This article generally assumes the reader is parent who has had his or her child wrongfully removed from his or her country of “habitual residence” and retained in the United States. However, there is greater application and useful information in this article for other scenarios, but the reader must understand this limitation. The Hague Convention only applies to a child under sixteen (16) years of age.
- This is also a plausible scenario with parents and children who have dual citizenship.
- In addition to comity, there could be an applicable treaty between countries or a vast array of other law that may apply, which are beyond the scope of this article.
- This analysis is beyond the scope of this article. Also, this act, while adopted in all fifty (50) states, has slight variations in substantive law and its formal name within a state. The most current title and widely used title is the “Uniform Child Custody Jurisdiction Enforcement Act”.
- The Hague Convention is implemented in the United states by the International Child Abduction Remedies Act, which is codified into federal statute.
- The term “Habitual Residence” is not defined by the Hague Convention, but is clearly where child was residing on a more or less permanent basis; this is a fact-sensitive issue for the trial court to decide as it hears a Hague Convention case.
- There is a detailed statutory relocation schemed in place in Indiana to protect the rights of non-relocating parents.