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Hague Convention – Burden of Proof Case

Posted by Jeremy Morley | Jan 13, 2006 | 0 Comments

The U.S. Court of Appeals for the Fourth Circuit has ruled – in Humphrey v. Humphrey, a Hague Convention child abduction case concerning the removal of children from England to Virginia – that a federal district court in Virginia committed a fundamental error when it held that the left-behind father must establish the children's habitual residence in England "beyond a reasonable doubt." 
The International Child Abduction Remedies Act ("ICARA") requires a petitioner seeking return of an abducted child to show "by a preponderance of the evidence" that "the child has been wrongfully removed or retained within the meaning of the Convention." 42 U.S.C. § 11603(e)(1) (emphasis added). The Hague Convention, in turn, requires a petitioner to demonstrate that, among other things, that the children were "habitually resident" in petitioner's country of residence at the time of their removal. 
The Fourth Circuit sent the case back to the district court for a rehearing at which time the correct standard must be applied.

About the Author

Jeremy Morley

Jeremy D. Morley was admitted to the New York Bar in 1975 and concentrates on international family law. His firm works with clients around the world from its New York office, with a global network of local counsel. Mr. Morley is the author of "International Family Law Practice,...

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