Two international child abduction cases arrive in your office on the same day. One client leaves relieved and optimistic; the other leaves in tears. Why the disparity? The first client is Mary. A few days ago, the father of her baby visited Mary and persuaded her to allow him to take the baby to the park. He then disappeared with the child. Mary has learned that he has taken the child to his country of origin in Southeast Asia and that he intends to keep her there. Mary wants you to help her file a petition with the U.S. Secretary of State to demand her child's return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The Convention provides that children under the age of 16 who have been wrongfully removed to or retained in a country that is not their habitual residence must be promptly returned unless one of the narrow exceptions set forth in the Convention applies. It was implemented into U.S. law by the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§11601-11610. The Convention is intended to restore the pre-removal status quo and to discourage parents from engaging in international forum shopping.
Courts deciding a petition for return of a child have jurisdiction to decide the merits of the wrongful removal claim, but they may not decide the merits of the underlying custody dispute. Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008). Unfortunately, you must tell Mary that, unless the country in question is Sri Lanka, she cannot take advantage of the Convention. Although the treaty is in force between the United States and about 80 other countries around the world, it is not in force between the United States and any Southeast Asian country other than Sri Lanka.
Accordingly, Mary's options are limited. She can secure a custody order from a court in her local state but that may well have no force or effect in the foreign country. She might ask for state or federal criminal charges to be brought against the father, but that might be counter-productive in deterring him from stepping foot outside his country. She might start a custody case in the foreign country but that might prove an uphill battle.
The second client is Paul. He and his wife are British nationals. They moved to your state from England with their children a few years ago. The wife took the kids on holiday to England a few weeks ago and now refuses to bring them back. Your advice will normally be to file a Hague Convention petition immediately. The Convention is in force between the United States and most countries in Europe. U.K. compliance with the Convention is excellent and the U.K. government will even pay for counsel to represent the left-behind parent. Each signatory country is required to have a Central Authority to process the petitions for return of children. Proceedings for the return of children are brought in the courts of the countries to which children have been abducted. The Secretary of State is the Central Authority in the United States. In California, but not in most other states, the local District Attorney's Offices will help parents file Hague petitions when children have been abducted to countries where the treaty is in force with the U.S.
What will Paul need to prove in order to have the English court order the return of his children? He needs to show that the children were “habitually resident” in your state, that he has a “right of custody” under the laws of your state, and that he did not consent to the children being retained in England for longer than their holiday time.
“Habitual residence” is not defined in the Convention. Its meaning has spawned considerable litigation in cases where the children have lived in different countries. Paul will claim that he and his wife were settled with their children in your state, but his wife might tell the English court that they were in the U.S. only temporarily. In deciding the issue, courts generally look to the last shared intention of the parents as to where their family should live and the extent to which children have spent time in and become acclimatized to the jurisdiction in question. In order to establish that Paul has a “right of custody” under the law of your state, you may suggest that you will supply an expert affidavit to accompany the petition that will state that even though there is no custody order, Paul has custodial rights by virtue of being the married father of the children. You probably should recommend to Paul that he should initiate a custody case immediately in your state and seek an emergency order directing his wife to return the children.
You want to ensure that Paul does not lose the exclusive custody jurisdiction that your state has, at least as far as U.S. courts are concerned, under the Uniform Child Custody Jurisdiction & Enforcement Act. Otherwise, in six months, England could become the new “home state” for Paul's children. Then, even though the children were returned to your state, unless the English courts were to decline jurisdiction over the custody issue, your state would not have jurisdiction under the UCCJEA.
You also need to review with Paul the possible defenses that his wife might raise in England. There are seven defenses, all of which are supposed to be construed narrowly. The first is consent. Convention, Article 13a. Did Paul agree that the children could be kept in England? The defense does not require that consent be in any specified form. And so there could be a “red light, green light” dispute about who said what to whom. Negotiations between the parents often result in statements which can unintentionally look like consent or acquiescence. However, the burden of proof will be with the wife.
The second defense is acquiescence, meaning that after the children were kept overseas Paul “okayed” that fact. Convention, Article 13a. In U.S. courts, acquiescence is difficult to establish; it requires some degree of formality. In England, the courts have a lower threshold requirement but again, as with all of these issues, the burden of proof is on the taking parent.
A third defense is that the petitioner was not actually exercising his rights of custody. Convention, Article 13a. Courts require very little to disprove such a claim. Certainly if the parties were living together before the foreign trip, Paul's wife will not prevail on this issue.
Another defense is that a return would violate the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. This defense is extremely limited. Although the U.S. has its problems, the human rights defense will not succeed in a case in which return to the U.S. is sought. Convention, Article 20.
A fifth defense is 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. The existence of this defense should cause you to counsel Paul to act promptly.
A sixth defense is 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. This defense will be extremely serious if the child is old enough, but the Convention leaves the exact age up to the courts. It will be up to the English judge to decide first whether Paul's children do in fact object to being returned to your state and if so, whether the children have attained an age and maturity at which it is appropriate to take account of their views. The children will likely be interviewed by a so-called “cafcass officer” who is employed by England's Children and Family Court Advisory Support Service. Even if the defense is established, the English court will have discretion to return the children nonetheless if the court deems it best to do so.
The last defense is grave risk of harm. Convention, Article 13b. In the authors' experience, this is the most common objection and it generally provides the most difficulty. Article 13b requires the party raising the defense to establish that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” In Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996), the Sixth Circuit held that a “grave risk of harm” for the purposes of the Convention can exist in only 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 of or unwilling to give the child adequate protection. Some U.S. courts have adopted more stringent tests and others more liberal tests with respect to the “grave risk of harm.” The loose language of the Convention has allowed courts in some countries to interpret the defense broadly so as to justify a refusal to return children. However, if Paul is not an abuser, he should have little to fear from this defense.
In conclusion, the identity of the country to which children are abducted from your state will play a pivotal role in shaping your strategy and in determining the likelihood that the children will be returned. Mary is unlucky that her child was apparently taken to a non-Hague country. If she had contacted you before the abduction occurred perhaps you could have sought to enjoin the abduction and taken other protective steps, particularly if she were residing in a state that has enacted the Uniform Child Abduction Prevention Act and if she were able to establish the existence of the so-called “risk factors” identified in that Act to help identify potential abductions.
Note that some states such as California have enacted their own abduction prevention statutes. The most effective such step is to require that the potential abductor have only supervised visitation with the child, but without proof of a direct threat to abduct the child, most judges are reluctant to grant such an order.
Since there are no exit controls in the United States, it is all too easy for a parent of foreign nationality to obtain travel documents for the child from his or her home country and flee overseas with the child. Paul is fortunate because not only were his children taken to a country that is a party to the Hague Convention, but also that that country is a strong enforcer of Convention rights. The U.S. State Department publishes annual reports to Congress on the compliance by U.S. treaty partners of their obligations under the Convention. The reports assert that several countries do not enforce Convention rights adequately.
Indeed, the authors believe that the State Department has been far too restrained in identifying noncompliance by certain countries. A vast array of materials and information on the Convention is now available on the Internet.