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October, 2004
How to Win a
Hague Convention Child Abduction Case
by Jeremy D. Morley (1)
Here are some tips for attorneys and clients faced
with instituting or defending child abduction proceedings under the
Hague Convention on the Civil Aspects of International Child Abduction,
whether in the United States or internationally.
In a nutshell, a Hague Convention application may be
made when a child is taken or retained across an international border,
away from his or her habitual residence, without the consent of a parent
who has rights of custody, if the two countries are parties to the
Convention. The child must be promptly returned to the habitual
residence unless the return will create a grave risk of harm to the
child.
1. ACT FAST
An attorney must be ready to file a Hague Convention
application and institute or defend a Hague Convention lawsuit on
extremely short notice.
Prompt action may be critical. The Convention
specifically requires that hearings be conducted expeditiously. A Hague
case can theoretically be instituted more than a year after the
abduction but a defense will then arise that the child has become
settled in the new environment and, in practice, the longer a child is
in a new place the more likely it is that a court will be reluctant to
send the child away.
Fast action by the left-behind parent is also
necessary to help prevent a claim that the parent has acquiesced in the
child's relocation.
Clients must move quickly to obtain the documents
needed to file the initial application and then to collect the documents
needed for the hearing. They should normally be asked to prepare a
detailed family history and to assist the attorney to develop evidence
as rapidly as possible.
In addition to the Hague application and lawsuit
itself, counsel for the left-behind parent should take many other steps.
First, counsel should enlist the support of the U.S.
State Department's Office of Children's Issues. Second, the left-behind
parent should institute civil proceedings. If there is no custody order
in place from a court in the jurisdiction of the habitual residence, an
application should immediately be made for such an order.
Third, counsel should consider putting the abducting
parent on immediate written and formal notice of the dire consequences,
civil, criminal and financial, that the abduction will cause to that
parent personally, and, possibly to others conspiring with the parent.
It may be appropriate to provide an extremely short time for the
abducting parent to cure the problem by returning the child.
Fourth, the parent should consider requesting the
federal and state prosecutors to institute both federal and state
criminal proceedings. The federal crime of international parental
kidnapping is a felony with a penalty of up to three years in prison. In
addition, many states including New York have provisions that also
provide criminal penalties for parental child abduction. It will
occasionally be possible to seek extradition based on a federal warrant.
2. PREPARE THE FACTUAL PRESENTATION
INTENSELY
Hague Convention cases are often extremely
fact-intensive. They frequently hinge on the ability of one party to
convince the court of matters such as the habitual residence of a child,
the extent to which a parent actually exercised custody rights and
whether or not a parent consented to or acquiesced in a new residency.
For a court to resolve these matters it must analyze the relevant facts.
A successful Hague proceeding requires the attorney,
working closely with the client, to marshal as much evidence as
possible, in as many forms as possible, to support the client's
position.
Clients are frequently shocked that matters that to
them are obvious and indisputable turn out to be disputed and to require
them to produce clear and convincing proof. They may well be insulted
that their word alone is insufficient to convince the court that they
are truthful and that the other parent is lying.
In one case, the parents had moved permanently with
their young child from the mother's native country to the U.S. Two years
later, the mother took the child back to her country for a vacation and
then refused to return to the States. In supporting her claim that the
child was never habitually resident in the States she claimed that the
original move to America had been only temporary and that she and the
father had agreed that they would return to the mother's native country
after a year or two. The mother had planned the move well in advance and
had amassed -- and even created -- evidence that tended to support her
claims. Additionally, she had removed evidence from the parties' home
that would have disproved her claims.
To win the case, we interviewed neighbors, friends,
family members, schoolteachers, real estate salespeople, fellow office
workers and an array of other people who had had some connection with
the family. We checked into any and all areas of the mother's life for
anything that might indicate her intention to stay in the States. We
obtained emails, notes, invoices, and other documents. We searched old
household bills for evidence of the purchase of items that inferred a
degree of permanency. At the hearing, the mother was shocked that her
husband had collected so much written evidence to disprove her claims
and undercut her credibility. The courts ultimately -- and with great
reluctance, since they were going against a local national -- found in
favor of our client.
Since Hague cases are tried quickly, there is usually
only one chance to present the case and it needs to be done well at the
very outset. An attorney must embark on a quick campaign of collecting
mounds of relevant evidence to support the client's positions, and must
expect the other parent to lie, cheat, and distort the facts in a
desperate attempt to avoid losing the case.
Just as a current military strategy is to employ
overwhelming force to create shock and awe, so too in a Hague Convention
case it is often advisable to use overwhelming amounts of evidence to
win the case. Such a campaign in a Hague proceeding may yield a
capitulation by the other parent even before the hearing actually
commences.
Hague Convention hearings sometimes take the form of
"he said, she said" disputes in which each side makes verbal accusations
against the other. Documentary evidence is usually far better than the
mere word of one parent. Thus, if you want to claim that a parent
applied for an immigration visa, you must be prepared to do more than
simply have the parent tell the court that this was done. You should do
whatever you can to get hold of the actual application papers that the
parent signed in applying for the visa, which may mean contacting the
lawyer who handled the immigration matter originally.
While it is helpful if documents are supported by
sworn statements, it is not essential. Both the Convention and the
International Child Abduction Remedies Act ("ICARA") provide that
authentication of documents is not required in a Convention proceeding.
3. PREPARE THE LEGAL ARGUMENT
INTENSELY
Hague Convention cases raise unusual international
law, foreign law and treaty law questions. They involve the courts in
matters of a kind that they are usually not used to handling. In many
jurisdictions the court may be entirely unfamiliar with Hague cases.
Accordingly it is usually essential for the lawyers to help the court to
an unusual extent. Certainly a well-reasoned memorandum of law is
essential.
The matters in dispute in most Hague cases raise
difficult legal issues that must be thoroughly briefed. Thus, the
Convention requires the left-behind parent to establish that the child
was taken from the "habitual residence" and that the parent had "rights
of custody" under the law of that jurisdiction. However, neither of
those fundamental terms is defined in the Convention and substantial
jurisprudence has grown domestically and internationally setting forth
often-contradictory determinations concerning their scope and meaning.
Moreover, courts have held that, while they must determine under
international law whether the left-behind parent possesses Hague
Convention "custody rights," they must first examine the law of the
child's habitual residence in order to ascertain the extent of the
rights that such parent possesses under that law. In this regard, it is
often essential to use foreign law experts to establish the existence
and scope of such rights.
A Hague Convention attorney may " and should " cite
cases not only from the domestic jurisdiction but also from other
jurisdictions if they support the client's position. It has become more
usual to cite cases from other jurisdictions in this area of the law
than perhaps in any other. Courts around the world recognize that it is
best to coordinate their decisions with those of other courts
internationally and, for that very reason, the Hague Conference on
Private International Law has established a database of significant
Hague cases from courts around the world.
4. AVOID BEST INTERESTS ANALYSIS
In representing the left-behind parent in a Hague
proceeding, it is necessary to keep the court focused on the narrow
issues that the Convention requires an applicant to establish and the
narrow defenses that a respondent can assert. Whenever the hearing
strays into any areas that might be considered as constituting an
analysis of the child's best interests, the applicant should vehemently
object.
However, a party opposing a return should do his or
her utmost to assert any and all relevant issues under the rubric of one
of the defenses specified in the Convention and should be armed with
case law to establish that similar claims were permitted in other cases.
5. BE FLEXIBLE CONCERNING EVIDENCE
In Hague cases evidence rules are usually relaxed, so
evidence should be submitted in any possible format. Live testimony is
invariably the best and normally everything should be done to get the
left-behind parent into the courtroom. (An exception is if that parent
would be a poor witness and his or her presence would create an
opportunity for embarrassing cross-examination). If a witness cannot be
brought to the courthouse, consider testimony by video conferencing or
otherwise by telephone conference. As a last resort, submit affidavits.
6. USE AN EXPERIENCED ATTORNEY: IF
THAT'S NOT YOU, FIND SOMEONE WHO IS
Hague Convention cases happen too fast, and too much
is at stake for the client, for an attorney to learn about this area of
law at the last minute. It is extremely important to locate counsel with
knowledge and experience in Hague proceedings.
It is also frequently valuable for a client whose
child has been abducted to retain Hague counsel in his or her home
country who can coordinate with the Hague counsel in the country to
which the child has been taken. Indeed, it will often be the local Hague
lawyer who will recommend the overseas lawyer, based on his knowledge of
such lawyers in other jurisdictions.
(1) Jeremy D. Morley, a member of this publication's Editorial Board, may be reached at
212-372-3425 and through his website, www.international-divorce.com.
With local counsel, he has handled Hague cases in jurisdictions as far
afield as New Zealand, Australia, England, Germany, France, Hungary,
Spain, Portugal, Poland, South Africa and Alaska.
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