There have been many cases in the news of parents kidnapping their own children and fleeing to foreign soil. Even less dramatic than that are the number of parents who leave on approved vacations with their children to other countries never to return, violating custody arrangements and breaking apart families.
For parents left behind, the effects are emotionally devastating and the process to regain their children is fraught with legal battles, sometimes confusing international laws and expense often beyond what one can afford.
The Hague Convention on the Civil Aspects of International Child Abduction, established in 1980, is a multilateral treaty which seeks to protect children from the harmful effects of abduction and retention by one parent from another across international boundaries. The Hague Convention provides a procedure in international law to ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.
The United States assisted in drafting the Hague Convention and became a signatory in 1981. As of May 2016, 89 States, including formal countries and foreign territories/provinces, are party to the convention. In 2012, the treaty also included Guinea and Lesotho and then South Korea later in March 2013.
The primary purpose of the Hague Convention is not to litigate child custody arrangements but rather to preserve whatever status quo child custody arrangement existed prior to the alleged wrongful removal or retention. It works to deter a parent from crossing international boundaries in search of a more sympathetic court. The Hague Convention provides that the court in which an action is filed should not consider the merits of any underlying child custody dispute, but should only determine the country in which those issues should be heard. Return of the child is to the member nation rather than specifically to the left-behind parent.
There are two types of Hague Convention cases: return and access. In return cases the left-behind parent with custodial rights seeks the return of his or her child to the child’s country of habitual residence. In access cases, the left-behind parent seeks enforcement of visitation rights to his or her child.
To be eligible for a Hague Convention petition, a parent must show:
- The child is less than 16 years of age;
- The petition must be filed less than one year from when the child was removed or retained in another country;
- The child is habitually a resident (child’s home for a significant amount of time) in one Hague Convention country, and was wrongfully removed to or retained in another Hague Convention country (taken or retained in violation of your custody rights); and
- That the wrongful removal or retention must have occurred between two Hague Convention countries that have a treaty relationship on or after the date the treaty came into force between the two countries (the dates are different for every country).
Further, the Hague Convention states that the removal or retention of a child is “wrongful” whenever it breaches the rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually a resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The United States Congress enacted the International Child Abduction Remedies Act (ICARA) to be the implementing legislation for the Hague Convention. ICARA establishes the Hague Convention as the law of the United States, provides definitions, sets forth jurisdiction, and addresses certain details regarding how the United States will enforce the provisions of the treaty. ICARA explicitly states that its provisions are in addition to, and not in lieu of, the Hague Convention.
There remain questions about how effective the Hague Convention is at returning children, which will be explored in next month’s post.