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Jeremy D.
Morley
International Family Law
230 Park Avenue, 10th Floor
New York, NY 10169
jmorley@international-divorce.com
Tel: (212) 372-3425
Fax: (815) 301-6742
Text of the Hague Convention on Abduction
ICARA - International Child
Abduction Remedies Act
Procedural
Issues Concerning the Hague Child Abduction Convention
Some of our
articles on international child abduction:
How to Win a Hague Convention
Child Abduction Case
Hague Convention Overview
Judicial Prevention
of International Child Abduction
Habitual Residence
Acquiescence or Consent
When the Hague Convention
Won't Help
The Future of the Grave Risk of Harm Defense
in Hague International Child Abduction Cases
"Rights of Custody" Under the Hague Convention
Top
Ten Tips for Expats
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The Hague Convention
on the
Civil Aspects of International Child Abduction is a powerful
international treaty that can yield beneficial results when it
is implemented correctly and appropriately.
We handle Hague cases globally,
working with local counsel.
We can help.
Hague Convention Overview
The
Hague Convention on the Civil Aspects of International Child Abduction:
An Overview
by Jeremy D. Morley
The Convention applies in
cases where:
1. Both the country of the child's habitual
residence and the country to which the child was taken have acceded
to the Convention;
2. The child in question is younger than 16 years
of age; and
3. The child has been "wrongfully removed or
retained" in breach of rights of custody under the law of the State
of the child's habitually residence.
The Convention is not a
vehicle for deciding child access questions. Instead, its main purpose
is to ensure that abducted children are returned to the country of
habitual residence. It presumes that such disputes are properly resolved
in the country where the child habitually resides.
The Convention provides
an administrative and a judicial avenue for parties seeking relief.
These two remedies are not mutually exclusive; the aggrieved party may
pursue one or both of them:
- Administrative assistance in securing a child's
return can be obtained by making an application to the designated
Central Authority in the nation where the child habitually resides,
or in any other nation that is a party to the Convention. The United
States has designated the State Department's Office of Children's
Issues in the Bureau of Consular Affairs as its Central Authority.
- A party may also initiate judicial proceedings in
the nation where the child is located. In the United States, federal
and state courts have concurrent jurisdiction over Hague Convention
cases. A U.S. state or federal court must give full faith and credit
to the judgment of any other U.S. state or federal court entered in
an action brought under the Convention. One federal appeals court
has held that decisions of the courts of foreign nations under the
Convention are not entitled to full faith and credit; however, they
are entitled to deference under principles of international comity.
Diorinou v Mezitis, 237 F2d 133, 142-143 (CA 2, 2001).
A party initiating
judicial proceedings under the Convention may request either:
- 1) The return of wrongfully taken children; or,
- 2) "arrangements for organizing or securing the
effective exercise of rights of access to a child."
The remedy to protect a party's 'rights of access' is
less well defined than the remedy to secure a child's return.
Wrongful Removal
'Wrongfulness' is defined as follows in Article 3 of the Convention:
- The removal or the retention of a child is to be
considered wrongful where
(a) it is in breach of 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 resident immediately before the removal or retention; and
(b) 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.
Habitual Residence
The
Convention does not define a child's "habitual residence", which is
among the most-litigated issues under the Convention. In Friedrich v
Friedrich, 983 F2d 1396, 1401 (CA 6, 1993), the U.S. Court of Appeals
for the Sixth Circuit noted that "habitual residence" is a flexible
concept that bears no real distinction from "ordinary residence." In
determining a child's "habitual residence" for purposes of the Hague
Convention, the court in Friedrich set forth the following guidelines:
- A child's citizenship is not determinative of
habitual residence.
- A person can have only one habitual residence.
- "On its face, habitual residence pertains to
customary residence prior to the removal. The court must look back
in time, not forward."
- "[H]abitual residence can be altered only by a
change in geography and the passage of time, not by changes in
parental affection and responsibility. The change in geography must
occur before the questionable removal."
In Feder v Evans-Feder, 63 F3d 217, 224 (CA 3, 1995)
the Court held that: "A child's habitual residence is the place where he
or she had been physically present for an amount of time sufficient for
acclimatization and which has a degree of settled purpose from the
child's perspective"
If the child's habitual residence in another country
was established because the petitioner fled the United States to avoid
criminal penalties, the petitioner may be disentitled to access to U.S.
courts.
Rights of Custody
Whether
a parent does in fact have custody rights is determined by the law of
the country in which the child is habitually resident. There is a
substantial difference of opinion among the courts of different
countries concerning the position of non-custodial parents who retain a
right to determine the child's place of residence. Article 5(a) of the
Convention defines "rights of custody" to include the right to determine
the child's place of residence. For this reason, courts in England,
Australia, New Zealand, France and Israel have ruled that an
access parent with the right to consent to the removal of the child from
a jurisdiction has a right of custody within the meaning of Article 5,
because such a parent has "the right to determine the child's place of
residence". In Croll v Croll, 229 F.3d 133 (2d Cir. 2000), the U.S.
Court of Appeals for the Second Circuit took a much narrower position, as
have courts in Canada and Ireland. The Croll decision in the
United States has been followed by some but not all of the other circuit
courts in the United States who have reviewed the issue.
Exceptions to the Mandatory Return of a Child:
If the conditions for the return of a child to the
country of habitual residence are established, there are at least six
possible defenses. The burden of proof rests firmly upon the parent who
opposes the return. The defenses are:
- 1. Grave Risk of Harm
That there is "a grave risk that [the child's] return would expose
the child to physical or psychological harm or otherwise place the
child in an intolerable situation." Convention, Article 13b. The
United States Court of Appeals in Friedrich v Friedrich held that a
"grave risk of harm" for the purposes of the Convention can exist
only in two situations. First, if returning the child would put the
child in imminent danger prior to the resolution of the custody
dispute - e.g. returning the child to zone of war, famine or
disease. Second, if there is evidence of serious abuse or neglect,
or extraordinary emotional dependence, and if the court in the
country of habitual residence is incapable or unwilling to give the
child adequate protection. Courts in England have adopted a more
stringent approach.
- 3. More Than One Year
That more than one year has elapsed from the date of
the alleged wrongful removal or retention, and the child is now
settled in the new environment. Convention, Article 12.
Article 12 provides that if the application is
made within one year of the date of wrongful removal or retention,
the authority concerned shall order the return of the child
immediately. It also states that if the application is made more
than one year after the date of wrongful removal or retention, the
authority shall still order the immediate return of the child unless
it is shown that the child is now settled in its new environment.
Time starts running from the moment the child is wrongfully removed,
or when the left behind parent withdraws his or her consent.
- 4. Not Exercising Custody Rights
That the petitioner was not exercising his or her
custody rights at the time of removal or retention. Convention,
Article 13a.
- 5. Consent
That the
petitioner had consented to or subsequently acquiesced in the
removal or retention. Convention, Article 13a.
- 6. Child's Objection
That the child "objects to being returned and has
attained an age and degree of maturity at which it is appropriate to
take account of its views." Convention, Article 13b.
For this defense, there is a two-fold test, namely:
(1) Does the child object to being returned to its
place of habitual residence; and
(2) Has the child obtained an age and degree of
maturity at which it is appropriate to take account of its view?
Undertakings
If a court
decides that a child must be returned to its country of habitual
residence, it may make the return contingent upon certain "undertakings"
from the petitioning parent. These may include:
- A requirement that the petitioner pay for the
respondent and child to travel to the country where the child
habitually resides.
- A requirement that the petitioner make
appropriate housing arrangements for the respondent and child in the
country where the child habitually resides.
- A requirement that the petitioner pay living
expenses for the respondent and child in the country of the child's
habitual residence.
- An order that the petitioner have no contact with
the respondent if the respondent returns to the country of the
child's habitual residence.
- An order that the petitioner will have no contact
or limited (e.g., supervised) contact with the child once the child
returns to the country of the habitual residence.
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Specific country information concerning child abduction:
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