When Parents Abduct: Reflections on the Hague ConventionMay 6th, 2010 | By critellilaw | Category: Practice Notes
Marriages between citizens of differing countries can be extremely beneficial and worthwhile, but when they break down the fight over child custody and visitation can quickly become quite complex. Simply serving a legal notice of a lawsuit on a party residing in a different country can be difficult and at times expensive. Often it requires familiarity with the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters. Further complications develop when one spouse decides to take matters into their own hands and simply disappears with the child, returning to their homeland.
In order to provide a remedy for such “abductions,” the international community came up with the Hague Convention on the Civil Aspects of International Child Abduction. This Convention aims to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence. As of this date, some 55 countries are signatories to the Convention. Some of these countries, however, are more than reluctant to comply with the terms of the Convention.
Utilization of the Convention is fairly straightforward. Each signatory to the Convention has a Central Authority to which an aggrieved parent may apply for assistance. That Central Authority will contact the Central Authority of the country to which the child has been taken. An attempt will then be made to locate the child and obtain a voluntary return. In the event that the parent refuses to return the child, a lawsuit is brought on behalf of the aggrieved parent to compel the return of the child.
To establish a prima facie case of wrongful removal or retention under the Hague Convention, the aggrieved parent must show that:
As one would expect, there has been a significant amount of jurisprudence develop as it concerns the above terms. Courts have concluded that the term ““habitually resident” refers to a child’s customary residence prior to his removal but focuses not upon a child’s domicile or legal residence but rather where the child physically lived for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.
“Rights of custody,”” meanwhile, include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence. These rights may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
After the aggrieved parent has made a prima facie showing, the burden shifts to the opposing parent to show by clear and convincing evidence why the child should not be returned. Under the Convention, it is an affirmative defense if:
Equally problematic is the ““one year”” defense. Commencement of proceedings, as used in Article 12 of the Convention, means the filing of a civil petition for relief in any court which has jurisdiction in the place where the child is located at the time the petition is filed. But Article 12 goes on to state that “even where the proceedings have been commenced after the expiration of the period of one year . . . , [the court] shall also order return of the child, unless it is demonstrated that the child is now settled it its new environment.” Hague Convention, Article 12.
As for the “well settled” exception, it should be noted that the court retains the discretion to order the children returned even if an exception applies. Nor is a court obligated to take into account the child’’s wishes.
Finally, Article 13(b) of the Hague Convention allows a court to deny return of a child to the country of habitual residence if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Generally speaking, such a risk arises in two situations: (1) imminent danger such as war, famine, or disease; or (2) when there is likely to be serious abuse or neglect and the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.