Child abduction by a parent within the United States or abroad is not a new problem. However, with a totally integrated international society connected by numerous reliable daily flights, international child abduction is easier to accomplish and a growing problem. Literally, a child may be taken by his or her parent and be almost anywhere in the world within a single day.1 This is where the nightmare begins for the parent left behind.
Fortunately, the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) was adopted in 1980 to address international parent 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 a foreign country, not a state in the United States or state of 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.2 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.3 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.4 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 embodies in most legal systems in the world that recognizes that one country should recognize the other country’s law.5 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.6
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 outside of straight legal application of the Hague Convention or cases tried under comity, some of the practical considerations are necessary what a parent trying to get a return order faces. As a threshold matter, 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 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.
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 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 county 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.
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 begun by filing a verified motion setting for 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”),7 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 resident8 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 are 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.
Obviously, there could be legitimate reasons for parental removal of a child to a foreign jurisdiction. As maybe 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 in case where there is an argument the laws of the member state might violated 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.
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. This article is written for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- 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.
- There are no international child custody laws per se. The 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 contained usually 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.