by Jeremy D. Morley
The best way to secure the return of a child who has been abducted to the United States may not be by using the Hague Convention on the Civil Aspects of International Child Abduction. It is often preferable to seek registration and enforcement, in a local Family Court in the county where the child is currently located, of a custody order from a court in the country where the child was living. This was well borne out in a recent case in the Vermont Superior Court, Windsor Unit, Family Division.
The child in question had always lived in Germany, originally with both parents, and then with his father after the mother relocated to Vermont. The parties entered into an agreement stipulating that the mother had access to the child during school vacations. A court in Germany then issued a ruling which approved of the parties' agreement and provided for sanctions for violation of its terms.
This past summer, the child went to Vermont for a scheduled four-week summer vacation with his mother in Vermont. The mother then failed and refused to return the child to Germany, claiming that he was being neglected there.
The father consulted us about initiating a case in the U.S. under the Hague Abduction Convention. We anticipated that in a Convention case the mother would assert the exception contained in Article 13(b) of the treaty of “grave risk of harm” that a return of the child would expose the child to “physical or psychological harm or otherwise place the child in an intolerable situation.”
We were confident that any such claim would ultimately fail, based on the claims already made by the mother in purported justification of her refusal to return the child. But we anticipated that, despite the language in the Convention and in the International Child Abduction Remedies Act requiring the expeditious resolution of any Hague Convention case, a resolution of the grave risk claim would require a battle between opposing medical and psychological experts, testimony by an array of witnesses concerning the child's physical health, emotional and psychological health, social life and educational circumstances, extensive pre-trial discovery, extensive briefing and a lengthy trial, all of which would be extremely expensive and emotionally draining for the client.
Accordingly, we recommended an alternative procedure, that of using the registration of enforcement provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”), which requires a court in the U.S. state in which a child is located to register and enforce a custody order issued by the child's home state, even if the home state is a foreign country. The UCCJEA does not permit the alleged abductor to assert in the U.S. court the exceptions that can be asserted in a Hague case. Once a notice to register a foreign custody order is properly given, the foreign order must be registered unless the respondent establishes that (1) the issuing court had no jurisdiction to enter the child custody determination; or (2) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having proper jurisdiction to modify same; or (3) notice or an opportunity to be heard was not given to the person contesting jurisdiction provided he or she was entitled to receive notice. Once the order is registered, there are no defenses. By contrast, exceptions are invariably claimed in Hague Convention cases and if one exception is upheld, return may be denied.
Since we are not admitted to practice in Vermont, we located local counsel there for the client, the firm of Hershenson, Carter, Scott & McGee, and we then strategized with and collaborated with that firm about the case throughout the proceedings, which they conducted with great care and success. The case was hotly contested by highly experienced counsel, including lead counsel from New York. Nevertheless -- and despite the respondent's cross-petition for temporary emergency jurisdiction, technical objections to registration, requests to delay the hearing, and the introduction of evidence by a clinical and licensed psychologist from New York -- the case was concluded within one month and the child was successfully returned to his home in Germany. We were delighted to help procure such a satisfactory result for a very grateful client.