The Hague Convention on Child Abduction
Creating parenting arrangements are oftentimes an emotionally charged process. The challenge becomes even more complex when the parents are from different countries; have resided abroad or have competing international jurisdictions where the decisions about children can be determined.
As an example, the parties reside in Chicago, home to the father. The mother moved to Chicago from Rio de Janeiro five years ago. The child has been to Rio several times where her grandparents live and spent last summer there. Can mom take the child there and ask a Brazilian court to determine the child’s parenting arrangements? If she did, what is the father’s recourse? You recognize the facts of cases in the news such as the “Goldman” case. What happen when both parties are from Chicago but have lived in Shanghai for three years, had a child there and decided to stay there, until the marriage experienced difficulties? The intent of the parties’ impacts where the case will be decided.
What happens when a parent takes a child to another country and does not return? This occurrence is known as “parental abduction” in certain circumstances. As the above examples demonstrate, the issue of which country has jurisdiction regarding custody can be impacted by a number of factors: parental intent as determined by words and actions; and the risks and benefits to a child living or traveling abroad.
The Hague Convention on the Civil Aspects of Child Abduction (“Convention”), a multilateral treaty, was developed by the Hague Conference on Private International Law in 1980. It provides for an alleged expeditious protocol to return a child to their habitual residence, when internationally abducted by a parent from one member country to another. “Abduction” comes into play when one party takes a child to another country without the consent of the other parent who is exercising custody. In such a case, to avoid benefiting the abducting parent and to serve the child’s best interests, the Convention requires the prompt return of the child to his or her habitual residence so that the court with the most connections with the child can decide the merits of the custody case. A Hague case cannot be invoked for children 16 years or older.
“Habitual Residence” is not defined by the Convention. The court has discretion. This is the most hotly contested aspect of these types of Hague cases. In the United States, habitual residence is determined by a number of factors such as where the child resided consistently just prior to the removal; where the child has friends; last attended school consistently; has the most connections; as well as where the parents’ intended to reside. As mentioned, these factors, which are fact-oriented, are highly contested even with the 2020 U.S. Supreme Court classification.
Even when a child has been removed without the consent of the other parent, there are exceptions to the return of the child to her habitual residence. Some of the most common exceptions fall under Article 13(b) of the convention, which provides the court with the ability to refuse return in instances where a child would suffer grave risk of harm or be placed in an intolerable situation. Often, this exception occurs where the evidence shows that a child has and would continue to suffer physical or severe emotional abuse if returned. More and more courts have also found that domestic abuse to the child’s caregiver also causes emotional abuse to the child and is a defense to return. Additionally, when the left behind parent does not initiate any action for return after a year of the child’s removal, the removing parent may argue that the child has become so well settled in their new life, that removal would be no longer in their best interest.
For the convention to apply, the left behind parent must have actually been exercising custody prior to the removal. “custody” is liberally construed. The definition is governed by what it means in the country that the child was removed from. This can be extremely important, especially for unmarried parties. In certain countries, same sex parents may not have “custody” rights. Unwed fathers may need to petition the court for recognition of custody rights. It is important to ensure both parents have done what is legally necessary to have recognized custody rights, especially when there may be an international aspect to the case.
The most difficult situation is when a parent takes a child to a non-signatory country, or a country reported by the U.S. State Department to be non-compliant. A non-signatory country is one that has not acceded, or agreed, to the Convention. The path to return is an uphill battle and sometimes, impossible. Courts may decide to exercise jurisdiction over custody and the left behind parent is forced to litigate, not just custody and return, but basic rights of access to the child in a foreign country. They must employ local counsel immediately. In fact, some countries are notorious for not returning the child and have an excruciatingly slow legal system with no clear precedent to predict an outcome.
There are countries that are signatories, but have their own unique interpretations of the Convention, including that of Habitual Residence, so that return is also extremely difficult. In the Goldman case, the U.S. Senate became involved, pressuring Brazil to return the child.
When a parent wishes to take the child to a foreign country, it is imperative to ensure that any consent must be in writing, with the clear stated purpose, duration and parameters of travel. In addition, before a parent agrees to their child traveling internationally, they must assess any risk that the other parent may not return. Parents must review the compliance rating of the country where the child is proposed to go, and if the country is non-compliant or a non-signatory, it may not be a wise idea to let the child go especially when he or she is at a young age and unable to contact the other parent easily. The U.S. State Department brings out an annual report providing information about the return of children. If a parent has any concern that a child may be taken without consent while a domestic case is pending, they may obtain a court order forbidding travel outside the U.S. and the Office of Children’s Affairs at the State Department is required to place the child on a “do not fly” list.
The parent of a child abducted to the United States may file an action in Federal or State Court. Time is of the essence. It is essential to alert authorities swiftly and employ counsel that are well-versed in international family law and have worked with the Convention. Each case is very fact-specific, and the facts greatly determine the strategy, litigation and ultimate results.
© 2020 Molly A. Sharma for Feinberg Sharma, P.C.