Overview of the Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction (the “Hague abduction Convention”) was designed to protect children internationally from the harmful effects of their wrongful removal or retention by their parents. The Hague Abduction Convention has two main goals: first to ensure the prompt return of children to the state of their habitual residence, and second to ensure effective access by noncustodial parents. The United States is a signatory country of the Hague Convention on the Civil Aspects of International Child Abduction.
The Hague Abduction Convention provides a civil (not a criminal) mechanism to secure the prompt return of children wrongfully removed from or retained outside of their home country, where they have lived in the most recent six months. Each of the Hague Abduction Convention member states has established a governmental agency (the Central Authority) to process return requests and to facilitate the voluntary return of the child. When the Central Authority fails either to respond or to secure the voluntary return of the child, the Hague Abduction Convention requires that its signatory countries’ courts return the child to the home country without determining the merits of the parents’ custody disputes. In other words, the foreign country must return the child without making any custody order.
Recognizing the importance of speedy returns of abducted children, The Hague Abduction Convention implies, but not mandates, a 6 week period in which return applications should be resolved.
The diagram blew shows how the Hague Abduction Convention works when a custodial parent seeks the return of a child taken away from his/her home country
A. Hague Convention proceeding does not determine the merits of a custody dispute, but mandates a child’s return.
The Hague Abduction Convention’s procedures are not designed to settle the custody dispute, but rather to return the child to his/her home state where the custody dispute to be resolved. In other words, the Convention’s focus is to preserve the status quo and to deter parents from crossing international boundaries to secure a more favorable forum for the adjudication of custody rights.
The Hague Convention on the Civil Aspects of International Child Abduction mandates the return of a child that has been abducted if at the date of the commencement of the proceedings for the child’s return a period of less than one year has elapsed from the date of the wrongful removal or retention. It also mandates the return of a child even where the proceedings have been commenced after the expiration of the period of one year unless one of the defenses of mandatory return applies.
B. The child must have been abducted from his/her habitual residence country.
Under the Hague Convention on the Civil Aspects of International Child Abduction, a parent seeking return of a child must first demonstrate by a preponderance of the evidence that the country of origin was the child’s habitual residence prior to the abduction (including wrongful removal or retention). The United States courts have defined a child’s habitual residence as the place where he or she has been physically present for an amount of time sufficient for acclimatization, which has a degree of settled purpose from the child’s perspective.
Second, he/she must proved that he or she had and was exercising custody rights over the child under the country of origin’s laws. Mere rights of visitation or rights of access do not warrant a mandatory return of the child. Recently, the United States Supreme Court ruled that a non-custodial parent’s ne exeat right: the authority to consent before the other parent may take the child to another country, is custody right.
C. To request a child’s return, a parent must have custody of the child.
The Hague Convention on the Civil Aspects of International Child Abduction makes plain that a court has no authority to order return unless the petitioner-parent has rights of custody. The United State courts has interpreted custody of a child as the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc., or to make the revocable selection of other people or institutions to provide the child these things.
To request the return of a child being abducted, the parent must prove that he/she was exercising custody rights prior to the abduction. However, once it is determined that a party has valid custody rights under the country of origin’s laws, very little is required to support of the allegation that custody rights have actually been, or would have been, exercised. If a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to exercise those custody rights under the Hague Convention on the Civil Aspects of International Child Abduction, short of acts that constitute clear and unequivocal abandonment of the child. Where a custodial applicant does nothing that constitutes clear and unequivocal abandonment of the child, he/she is exercising her custody rights at the time of retention.
D. The Hague Convention offers remedies to enforce a non-custodial parent’s visitation rights.
The Hague Convention on the Civil Aspects of International Child Abduction provides recourse in the event a child is removed from an habitual residence in breach of a non-custodial parent’s visitation rights (access rights), but those remedies do not include an order of return to the place of habitual residence. To vindicate the breach of access rights, the Hague Convention authorizes signatory nations to use one or more remedies (short of return) to promote the peaceful enjoyment of access rights, and to take steps to remove, as far as possible, all obstacles to the exercise of such rights. One such remedy is to order the custodial parent who has removed the child from the habitual residence to permit, and to pay for, periodic visitation by the non-custodial parent with access rights.
E. The United States enforces the Hague Convention.
In the United States, a petitioner claiming child abduction under the Hague Convention on the Civil Aspects of International Child Abduction may bring a petition for an order of return in a United States district court or in a court of any state. The court has the authority only to determine whether the child’s removal or retention was wrongful within the meaning of the Hague Convention, i.e. whether the removal was in breach of custody rights held by the petitioner. A petitioner bears the burden of proving wrongful removal by a preponderance of evidence. If a petitioner shows that the child was wrongfully removed, a court must order the child’s return to the country of habitual residence unless a respondent demonstrates that one of the narrow exceptions applies. The court is not permitted to consider the merits of underlying custody disputes.
