The below article was recently published in the May 2016 issue of AJ Famille, a monthly publication featuring articles on all aspects of Family Law, with a French focus:
The Hague Abduction Convention in the United States
Jeremy D. Morley*
The Hague Convention on the Civil Aspects of International Child Abduction is a remarkably successful international treaty that has had a substantial impact globally in deterring international child abduction.
The purpose of this article is to inform lawyers in France of some of the distinct ways in which the Convention operates in the United States.
Limited Role of Central Authority
The State Department's Office of Children's Issues is the U.S. Central Authority for Hague cases. Unlike many other countries, the U.S. Central Authority does not litigate Hague cases, and is not involved in any significant way in Hague litigation. A petitioning parent must retain private counsel to initiate a Hague case in court in the U.S.
Submitting an application to the Office does not initiate judicial proceedings, does not stop the clock for purposes of the “one year and settled” exception to the Convention, and does not require the taking parent to take or not to take any action. The Office does not appoint attorneys for left-behind parents and does not file return petitions with the courts. The responsibility for starting a Hague case in an appropriate court rests exclusively with the left-behind parent.
One area in which the Central Authority has an important role is that it is required by Congress to prepare regular reports as to the compliance by other Hague countries with the provisions of the Convention. These reports are useful evidence in custody cases concerning whether or not a parent should be allowed to take a child for a visit to a foreign country.
The United States has not accepted as Hague Convention treaty partners all countries that have acceded to the Convention. The status of such acceptances must be checked whenever a Hague case is contemplated.
In many countries Hague cases are channeled to a limited number of judges who have special training and experience in handling Hague cases. While the U.S. State Department has lobbied other countries to provide such training and judicial concentration in Hague cases, in the U.S. Hague cases can be brought before either federal or state judges wherever the child is located. Since there are several thousand counties and many federal judicial districts, a Hague case can be brought before any one of thousands of courts in the U.S. Most such judges have never handled a Hague case.”
Family Court judges and U.S. federal judges have completely different backgrounds. This means that the choice of the state or federal system can have a major impact on the outcome of the case. Litigants and counsel might prefer a family court judge who has experience in child custody cases or a federal judge who does not have any such experience.
In practice, the vast majority of Hague cases are brought in federal court. Petitioners often prefer to bring the case in a court that is not accustomed to applying “best interests” analyses in conventional child custody cases. Also, swift action might be more likely in a federal court, whose dockets are shorter and whose enforcement procedures are clear and forceful.
If the case is started in a state court the respondent has the absolute right to remove it to the federal court.
Application and Petition
The standard Hague application that is filed with the Central Authority need not contain much detail. The usual procedure is that the petitioner's attorneys will then file a far more detailed petition in the appropriate court, which may be supported by documentary evidence and even by sworn affidavits. Often an ex parte motion for a protective order is filed at the same time, seeking an immediate court order barring the respondent from leaving the jurisdiction with the child and requiring that passports be deposited in court. The respondent then has a limited period of time within which to file its responsive pleading, and must appear in court at a certain time (often within just a few days) typically with the child.
At the first court appearance, petitioner's attorney will normally explain the petitioner's theory of the case and ask the court to schedule a final hearing on the matter on as expeditious a basis as possible. The respondent's attorney will normally advise the court at this time of the basis of the defense.
Occasionally a court might decide the case summarily based on the papers submitted by the parties but usually the court will schedule a hearing with live witnesses. The hearing date should be well within the six week schedule called for by the treaty.
The court will also generally hear and resolve at this time any pre-hearing issues that either party might raise. Such issues may include the following: Whether pre-hearing discovery should be permitted and, if so, upon what terms; whether interim relief should be ordered, or continued if previously ordered; whether a guardian or lawyer should be appointed for the child; whether telephone or video testimony should be permitted; and whether witness affidavits should be accepted in evidence.
Pre-trial discovery is often permitted provided it does not delay the trial. The discovery can include pre-hearing depositions (out-of-court oral testimony of a witness that is reduced to writing for later use in court), written interrogatories, and demands for the production of documents and other evidence.
Guardian / Lawyers for Child
If a respondent asserts an exception based either upon grave risk of harm to the child or on the objections of a mature child, the court mighty appoint an independent expert to help determine the facts or an independent lawyer to represent the child. Courts have sometimes appointed an attorney to act in the dual role of the “guardian ad litem” (a person the court appoints to investigate what solutions would be in the “best interests of a child”) and as the child's attorney.
The testimony of the child who is the subject of a Hague petition may be heard in a Hague case when appropriate. The child's opinions are frequently permitted on the issue of a mature child's objection. A child's testimony has also been permitted as to facts concerning whether the child was habitually resident in a specific location and as to the grave risk exception. In such cases the courts make it quite clear that the weight they will give to such testimony may be less than that given to the testimony of other witnesses, depending on the age and maturity of the child and the extent to which the child's testimony is independent. A child's testimony is often taken in an informal manner.
The legal fees in a U.S. Hague case can be very high. U.S. domestic law expands Article 26 of the Convention by providing that any court that orders the return of a child under the Hague Convention “shall order” the respondent to pay “necessary expenses” incurred by or on behalf of the petitioner, “unless the respondent establishes that such order would be clearly inappropriate.” However, there is no provision for a winning respondent to claim legal fees from the petitioner.
It may surprise foreign lawyers to learn that the issue that creates the most confusion and lawyers' time in American courts is that of habitual residence. Determining the child's “habitual residence” is a threshold issue in any Hague Convention case. It is often outcome-determinative because, if the court concludes that the country from which the child was removed was not the country of the child's habitual residence, the Convention will not apply and the petition must be dismissed.
Courts in the U.S. have scrutinized the phrase extensively and there has been substantial diversity in the way that it has been interpreted in different circuits and by many state courts.
The courts have developed three primary but divergent approaches to determine the habitual residence.
The first approach – followed by a majority of courts -- focuses primarily on parental intention, with a subsidiary look at acclimatization. The parents' “last shared intent” regarding their child's habitual residence is presumed to be controlling, although the presumption can be rebutted in exceptional cases if the child has sufficiently acclimatized to its new surroundings as to render a return order unfair or seriously damaging.
Courts taking this approach will decide that a child has acquired a new habitual residence only if it is established that the parents had a shared and settled purpose to do so. Many courts also require proof of an intention to abandon the former habitual residence. The inquiry focuses on the state of mind of each of the parents, and whether their intent was shared. This may be revealed by considering, for example, whether or not they intended the move to be permanent or temporary, how long they intended to stay, whether they had plans to return to a previous residence, whether the shared intention was unconditional and whether an express or implied condition was satisfied. It is possible, using this approach, to find that a child remained habitually resident in a prior country of residence despite having resided for several years in a new country, even attending school and assimilating into the new community.
The second approach is the “child-centered approach” whereby the courts look exclusively at the child's objective circumstances and past experiences. Relevant inquiries include whether the child is attending school, the child's participation in other cultural, and the child's overall level of acclimatization and integration into the community. The inquiry does not consider parental intent, which is deemed to be entirely irrelevant.
The third approach requires a mixed inquiry into both the child's circumstances and the shared intentions of the child's parents. How much weight should be given to each factor is unclear. Sometimes evidence of shared parental intent to abandon an old habitual residence and acquire a new one will trump any evidence of acclimatization from the child's perspective. In other cases, sufficient evidence of acclimatization will defeat any evidence of shared intent.
Unfortunately the U.S. Supreme Court has never resolved the conflicting interpretations. As a result, the treaty can be interpreted quite differently depending, for example, on whether the case is brought on one side or the other of the Hudson River between New York and New Jersey, with New York looking primarily at the last shared parental intention and New Jersey looking far more at the actual “conditions on the ground.” The treaty is supposed to have one autonomous meaning on a global level, but that has rule not been respected in the U.S.
Since the majority interpretation focuses on parental intention, it is essential whenever habitual residence is disputed to present as much evidence as possible as to all the factors that might indicate such intention.
Grave Risk of Harm
The U.S. follows the general principle that the grave risk of harm exception in Article 13(b) of the Convention must be interpreted narrowly. The burden of proof of most of the Hague exceptions is “preponderance of the evidence” but for grave risk it is “clear and convincing evidence,” a much higher standard.
Expert testimony is often used by both sides, especially testimony from doctors, psychologists, social workers and even lawyers who can testify as to the resources available in the habitual residence. Such testimony may be decisive in proving or disproving grave risk of harm.
Many courts require a respondent to establish prior harm to a child but also to prove that the authorities in the habitual residence will not provide adequate protection if the child is returned. Some courts have recently deviated from that requirement and the issue is unsettled.
A difficult situation often arises when there is evidence of domestic violence against a spouse, but less severe abuse or none at all directed at the child. Traditionally, a respondent must show a strong link between the spousal abuse and harm to the child, but some courts have adopted a broader approach. The cases vary dramatically depending on the facts of the case and the nature and quality of the evidence.
Some U.S. courts have attached conditions, or undertakings, to a return order in an effort to mitigate the risks that might result from the return. The U.S. Department of State has urged that undertakings should be used sparingly and be narrowly tailored to advance the Convention's goal of prompt return. In some cases the courts have stated that undertakings provide a false sense of security, since they may well be totally unenforceable.
An Alternative Procedure
There is an alternative procedure in the U.S. to obtain the return of an abducted child.
Every American state) has adopted the Uniform Child Custody Jurisdiction & Enforcement Act (the “UCCJEA”), except Massachusetts which has a similar law.
The UCCJEA generally requires U.S. courts to register and enforce custody determinations issued by a foreign court if that court had jurisdiction under the jurisdictional principles contained in the UCCJEA. If the child had lived in the foreign country for the six months preceding the commencement of the foreign custody case, and if that case was the first custody case concerning the child, the foreign country will be the “home state” of the child within the meaning of the UCCJEA, and an American court must normally consider that the foreign court had custody jurisdiction.
It may be preferable for a left-behind parent whose child has been taken to the U.S. to proceed under the UCCJEA instead of the Hague Convention. There are several reasons for this:
- The primary venue for the litigation is the jurisdiction from which the child was taken. This will usually be far more convenient and comfortable than a distant and unfamiliar American court.
- It is often far easier to establish that the foreign country is the “home state” for UCCJEA purposes than the habitual residence.
- Once a notice to register the foreign custody order is properly given in a U.S. court, it must be enforced unless the respondent can establish that (1) the issuing court had no jurisdiction; or (2) the foreign child custody determination was vacated, stayed, or modified by a court in the foreign country; or (3) notice or an opportunity to be heard was not given to the other parent.
- The UCCJEA does not permit the respondent to assert any of the exceptions that can be asserted in a Hague case.
- A case can be brought under the UCCJEA to register and enforce a foreign custody order even if the foreign country is not a party to the Hague Convention (unless its child custody laws violate human rights).
- The Hague Convention does not provide an effective mechanism for to enforce access rights. The UCCJEA has no such restriction.
- The Hague Convention applies only in respect of children under the age of 16.
- Hague cases generally raise “interesting” (i.e., expensive) issues. UCCJEA enforcement cases usually (but not always) do not. Therefore UCCJEA cases are generally substantially cheaper.
On the other hand, it could be better in some cases to bring suit under the Hague Convention, instead of under the UCCJEA, for a variety of reasons:
- The courts in the child's habitual residence might not exercise custody jurisdiction if the child is no longer located there. From a U.S. perspective the courts of that country might have jurisdiction but if those courts do not have jurisdiction under their own jurisdictional rules and if there was no custody order in place prior to the child's removal, there will be no foreign custody order to register and enforce in the United States.
- If the foreign country was not the home state for purposes of the UCCJEA, because the child lived there for less than six months (unless he or she was a baby less than six months old), a custody order issued by a court in that country will generally not be enforceable under the UCCJEA.
- If proper notice or a proper opportunity to be heard was not provided by the foreign court, this will be fatal to an effort to register and enforce the order in the U.S.
- If the courts in the child's habitual residence act slowly it may well be far better to bring a Hague case forthwith in the place where the child is currently located.
- If the courts of the habitual residence will not handle the custody case' unless and until the child is returned there, it would be possible for the left-behind parent to wait until the U.S. court has custody jurisdiction, usually after six months, and then to sue for custody in the U.S. state where the child is located. In such a situation, however, a Hague case would invariably be a far wiser course, since it would be much quicker and it would not open the door to a full-blown best interests analysis.
Hague cases are handled differently in the U.S. than in other countries. The Convention generally works well but it requires strategic implementation and expeditious implementation. In some cases it is better to proceed under the UCCJEA.
*Jeremy D. Morley is a New York lawyer who handles Hague Convention throughout the United States. He is the author of the American Bar Association book, The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers. He may be reached at [email protected]