Introduction

Thirty years ago, handling custody cases across state lines was a growing issue in family law. Now, handling custody cases across international boundaries is the growing issue as the world becomes smaller and citizens from different countries more integrated. The Hague Convention on the Civil Aspects of International Child Abduction (often referred to as the “Hague Convention” or “Convention”) is a treaty established in 1980, and the purpose was to provide civil remedies to return children who have been wrongfully removed or retained from their country of “habitual residence” in violation of the custodial rights of the parent(s).

A parent who is the “left behind parent” can apply for the return of his or her child(ren) under the Hague Convention in either state or federal court. The left behind parent can also file an administrative request to return the child through the United States Department of State at https://travel.state.gov/content/travel/en/International Parental Child Abduction/abductions/hague app wizard.html. An action seeking the return of a child under the Hague Convention is not a custody case and the Court does not look at the best interest of the child standard. Rather the Court determines whether the child has been wrongfully removed from his or her country of habitual residence and if there is a reason that the child should not be returned.

Here at Shewmaker & Lewis, LLC, we represent parents in Hague Convention matters. We represent the left behind parents in other countries, and we also represent the parent here in the United States who is defending against a Hague Convention petition.

Making a Case under Hague Convention

In order to file a Petition under the Hague Convention, the Convention must be in effect between the United States and the other country. As of May 1, 2018, the Convention is in effect between the United States and 77 other countries. Most of these countries are located in the Americas, and Europe. For a complete list of the countries with which the Convention is in effect see the State Department’s website at https://travel.state.gov/content/travel/en/International Parental Child Abduction/abductions/hague abduction country list.html.

The second pre-qualifier for filing a Hague Convention Petition is that the minor child is under the age of 16 years. The Hague Convention does not apply to children age 16 or older. This is different in that in most states (in the United States) a child does not emancipate until age 18. This is a hard and fast rule under the Hague Convention, so if your child is over the age of 16 and you have a court order, you may be able to file under the UCCJEA (see more under our section titled Hague vs. UCCJEA).

The alleged country of the left behind parent must have been the child’s “habitual residence.” Interestingly, the Hague Convention does not define what “habitual residence” means, and so the Courts have used different tests to evaluate a child’s country of habitual residence, and it becomes a very fact and circumstance specific inquiry.

Next the child must have been wrongfully removed or retained from his or her country of habitual residence in violation of the left behind parent’s custodial rights. Whether the left behind parent has custodial rights is to be determined by applying the law of the country of habitual residence. Sometimes custodial rights are because of a court order or by virtue of the law in that country (for more information on this see our section on Custodial Rights under the Hague Convention).

Lastly, the Petition should be filed within one year of when the child was wrongfully removed or retained. If the Petition is filed within one year and the other elements are met, there is a presumption that the child should be returned. If the Petition is not filed within one year, the left behind parent can still file the Petition, but the abducting parent may allege the defense that the child is now well settled in his or her new country.

If these elements are all met, then the left behind parent has made a “prima facie” case for the return of the child, and the Court should order the return of the child unless one of a few narrow exceptions is met (see Defenses to the Return).

Defenses to the Return of a Child

Once a case is established for the return of a child and all the elements are met (see our section on Making a Case under Hague Convention), the Court shall order the return of the child unless one of five defenses is established. Those defenses are:

The first defense to the return of a child under the Hague Convention is that the child is now well settled in his or her new country. If the Petition for the return of the child is filed prior to one year of the wrongful removal, the abducting parent cannot plead this defense. If the parent who removed the child has hidden the child from the left behind parent, this time period does not begin until the left behind parent is able to or should have been able to locate the child.

The second defense to the return of the child is that the left behind parent consented to the removal of the child to a new country. Some courts use the factors established by the federal court in the case of Koc v. Koc, 181 F. Supp.2d 136 (E.D.N.Y. 2001). Those factors for determining whether the child is well settled are: 1) the age of the child; 2) the stability of the child’s residence in the new environment; 3) whether the child attends school or day care consistently; 4) whether the child attends church regularly; 5) the stability of the abducting parent’s employment; and 6) whether the child has friends and relatives in the new area.

The third defense is that the child would be exposed to physical or psychological harm or an intolerable situation if returned. This is known was the “grave risk” defense. The removing parent must prove this by clear and convincing evidence. The case law from the courts have indicated that this defense is only to be granted in extreme cases and is not license for the court to make a custody determination and speculate on the best interest of the child.

The fourth defense is that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take into account its views. The Hague convention does not define what age is appropriate, and leaves it to the courts’ discretion to make a fact specific inquiry into the child’s maturity.

The fifth, and last, defense is that returning the child to his or her country of habitual residence would violate fundamental principles relating to the protection of human rights and fundamental freedoms. The abducting parent must prove this by clear and convincing evidence. This is a rarely raised defense and very difficult to establish.

Please contact us if you have any questions.