By Jeremy D. Morley
If a child is abducted to the United States from a country that is a party to the Hague Abduction Convention, the left-behind parent usually has a choice of seeking the child's return under the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”) or the Convention. A UCCJEA case must be brought in state court, but a Hague case may be brought in a federal or a state court.
The decision as to which to use is often of decisive importance, and must be considered with the utmost care. `
The UCCJEA may be preferable to the Hague Convention in the following situations:
- If the Hague Convention is not in force between the United States and the foreign country in which the child was habitually residing. Just because a country has acceded to the Convention does not mean that it is in force with respect to abductions to the USA.
- If the child is over 16 or will soon turn 16. The Hague Convention may not be invoked if the child is over that age.
- If the applicant is seeking to enforce mere access rights, rather than the return of the child. The Hague Convention does not provide any mechanism for enforcement of access (visitation) rights.
- If the foreign country issues an order subsequent to the child being taken out of the country.
- If the child lived in the foreign country for more than six months but there is an issue as to whether that country was the child's habitual residence. “Habitual residence” must be established for the purpose of the Hague Convention. “Home state” must be established for the UCCJEA. They are entirely different concepts.
- If any of the Hague Convention exceptions might be asserted. Even if a petitioner establishes a prima facie case, there are six exceptions to the requirement that a child must be returned. These include the provision that a child need not be returned under the Convention if there is a grave risk that doing so would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
- A Hague Convention case will likely be far more expensive. This is primarily because the issues of habitual residence, consent, and grave risk of harm are extremely fact-based and often require extensive discovery and the evaluation of competing narratives.
The Hague Convention will generally be preferable to the UCCJEA in the following situations:
- If the foreign court will not exercise jurisdiction. The courts in many countries will not exercise custody jurisdiction if the child is not located in the country. From a U.S. perspective the courts of the foreign country might have jurisdiction but if the courts in the country do not have jurisdiction of the matter 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 UCCJEA “home state.” If the child lived in the foreign country for less than six months, the foreign country will normally not be the home state.
- If the foreign country's courts did not have exclusive continuing jurisdiction under the UCCJEA for any other reason.
- If proper notice to the other parent or a proper opportunity to be heard was not provided by the foreign court.
- If there is no custody order from the foreign country and no ability to obtain one.
- If there is a particular reason to prefer federal court to a state court. For example, a state court might be far more inclined to consider and be influenced by issues concerning the “best interests” of the child than a federal court, which rarely handles child custody issues and may be more likely to apply the treaty provisions more precisely.
- If the foreign country provides legal aid to its nationals for Hague cases but not for UCCJEA cases.
- If the petitioner wants to collect the litigation expenses from the respondent. The International Child Abduction Remedies Act provides that a winning petitioner may normally recover legal fees and related expenses from a losing respondent.
These issues require sophisticated analysis by experienced Hague Convention and international family law practitioners.