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

Procedural Issues Concerning the Hague Child Abduction Convention

 Response of the United States to questionnaire concerning the practical operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (2006)

 What special measures / rules exist to control or limit the evidence (particularly oral evidence) which may be admitted in Hague proceedings? 

In general, rules of evidence are governed by the applicable court rules. There are general rules of relevance and admissibility which are applied by federal courts. In state courts the type of evidence admissible in a Hague proceeding is a matter of local law and will vary by State. Consistent with the Convention, section 11605 of the U.S. implementing legislation, ICARA, states that the Hague petition and supporting documentation need not be authenticated in order to be admissible in court.  

In addition, case law has limited discovery in cases involving the Hague Convention and ICARA. In Zajaczkowski v. Zajaczkowska, 932 F. Supp. 128 (D. Md. 1996) (affirmed by Zajaczkowski v. Zajaczkowska, 1997 U.S. App. LEXIS 10154 (4th Cir. Md. 1997), the court noted that the Convention (Article 19) envisions a period of six weeks from the date of the filing of a petition to the court’s decision. Since the rules of procedure applicable to ordinary civil cases would be at odds with the Convention and ICARA’s emphasis on expedited resolution, the court decided that petitions under Convention and ICARA could be appropriately handled as an application for a writ of habeas corpus. Habeas petitions normally displace the calendar of the judge who hears them and receive prompt action based on the allegations in the petition. Therefore, the Zajaczkowski court decided to hear evidence and arguments in a summary fashion and decide the case at the close of the hearing.  

Another court in the same Circuit, Menechem v. Frydman-Menachem, held that there is no requirement, under the Convention or under ICARA, that discovery be allowed or that an evidentiary hearing be conducted. Thus, the court could properly resolve ICARA cases on the basis of affidavits and other evidence, without resorting to a full trial on the merits or a plenary evidentiary hearing. , 240 F. Supp. 2d 437, 444 (S.D. Md. 2003). The court in March v. Levine, came to the same conclusion. See 136 F. Supp. 2d 831, 834 (M.D. Tenn. 2000).  

Courts in other U.S. jurisdictions have used a variety of other procedural methods to ensure a speedy resolution of Convention cases. Many proceed with a “show cause” order requiring a respondent to appear with a child immediately or within a short period of time. See, for example, Sealed Appellant v. Sealed Appellee, 394 F.3d 338 (5th Cir. 2004); Small v. Clark, 2006 U.S. Dist. LEXIS 48448 (M.D. Fla. 2006). Some states allow a magistrate judge to hear Convention cases, thus permitting the case to move more quickly through a crowded court docket. See Karkkainen at 1023. Courts can also order expedited briefings. See Koch v. Koch, 2006 U.S.App. LEXIS 14417, 13 (7th Cir. 2006).

Specific country information concerning child abduction: