What is the Hague Convention? Can I protect my child from Parental Child Abduction? What should I do if my child is taken across state or international borders? Find all the answers to these time-sensitive, high-stakes questions here.
The Hague Convention is a treaty that many countries, including the United States, have joined. Its purpose is to protect children from the harmful effects of international abduction by a parent.
While there is a lot of information out there about the Hague Convention, we decided to make a list of the most frequently asked questions. Here’s what you need to know if you are facing the frightening situation of International Child Abduction.
What is the Hague Convention?
The Hague Convention on Civil Aspects of International Child Abduction was enacted into law through the International Child Abduction Remedies Act (“ICARA”) which provides that a parent whose child has been wrongfully removed from or retained in the United States may petition for the child’s return to his or her country of habitual residence.
This multilateral treaty was developed by the Hague Conference on Private International Law (HCCH) and concluded on October 25, 1980, entering into force on December 1, 1983. These participating countries are also included in a large treaty that governs the way different legal systems work together. There were two specific goals in mind at the time of The Hague Services Convention’s formation:
- Create a means to ensure that judicial and extrajudicial documents to be served abroad can be brought to the notice of the addressee in sufficient time.
- Improve the organization of mutual judicial assistance.
The overall purpose of the Convention is to protect children from the harmful effects of international abduction by a parent by encouraging the speedy return of an abducted child to their country of habitual residence. As well as to organize and secure the effective rights of access to a child.
What Countries does the Hague Convention include?
Listed below are the countries that are participants of the Hague Convention in force with the United States of America. The official list and dates the treaties signed can be found here.
|Macedonia, Republic of
|Bosnia and Herzegovina
|China (Hong Kong and Macau only)
|Korea, Republic of
|Saint Kitts and Nevis
|Trinidad and Tobago
|United Kingdom (Anguilla, Bermuda, Cayman Islands, Falkland Islands, Isle of Man, Montserrat)
My Ex wants to move out of state with our child. What can I do?
First off, it’s important to note that your options will depend on a number of different factors, and we want to provide you with some general information below. If your former spouse makes the decision that they want to move out of state with your child, they must first notify you of the move.
The notice they give you must state the date they intend to move, the address of their new home, and how long they intend to remain in the new location. They must deliver the notice to you at least 60 days before they move unless they have a court order that specifies different instructions.
You can sign the notice if you approve of the move and your former spouse will then file the notice with the court. Of course, you do not have to consent to the move. If your spouse moves out of state with the child without your consent, or without sending you notice, it is considered parental kidnapping or child abduction.
If you don’t consent to the move with your child, your ex has two options. They can either agree not to move out of state with the child, or they can petition the court to overrule you and allow the move. If your ex petitions the court and asks them to allow the move, you and your former spouse must attend a court hearing. During the hearing, a family law judge will take many factors into consideration and then deliver their decision.
Like when making child custody decisions, the judge will take many factors into consideration. All of the factors are guided by what is in the best interests of the child. However, if your ex wants to move for a better-paying job that would allow them to better care for the child, the judge may consider the move in the best interests of the child.
What are the defenses to a petition for the return of my child?
There are a few defenses to a claim of wrongful removal or retention under the Hague Convention, which include:
Defense 1: That the petitioner (parent seeking the return of the child) was not “actually exercising custody rights at the time of the removal or retention” under Article 13.
Defense 2: That the petitioner “had consented to or acquiesced in the removal or retention” under Article 13.
Defense 3: That more than one year passed from the time of the wrongful removal or retention until the date the petitioner commenced a judicial or administrative proceeding for the return of the child, under Article 12.
Defense 4: That the child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the petitioner and that it is appropriate to heed that objection, under Article 13.
Defense 5: That “there is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” under Article 13(b), and
Defense 6: That return of the child would subject the child to violation of basic human rights and fundamental freedoms, under Article 20.
If your child has been wrongfully removed to a country overseas, you should immediately contact your local family law attorney that is experienced in international custody disputes for help.
How do I initiate the process of International Parental Child Abduction?
Deciding whether to file a Hague application is an important decision and must be considered based on each case’s specific circumstances. Perhaps after separating from their partner, a parent wants to take their child and move to another country. Maybe a parent moved internationally in violation of a custody agreement.
Filing a case under the Convention does not guarantee that your child will be returned. To obtain the return of your child, through a Hague proceeding, you must first be able to demonstrate:
- That your child was habitually resident in one Convention country, and was wrongfully removed to or retained in another Convention country;
- The removal or retention of your child is considered wrongful if it was in violation of your custodial rights, and you were exercising those rights at the time of the removal or retention, or you would have been exercising them but for the removal or retention.
- The Convention must have been in force between the two countries when the wrongful removal or retention occurred (the dates are different for every country); (Note: In many instances, when a country accedes to the Convention, it is not automatically partners with all of the other countries who have ratified or acceded to the Convention. Countries must accept another country’s accession to the Convention under the terms described in the Convention before a treaty partnership is created.
- The child is under the age of 16.
How do I find a reputable parental child abduction attorney?
To make sure you have the best possible chance in your Hague Convention case, you need an attorney who understands both the severe circumstances and the delicate interplay of state, federal, and international laws.
Accredited family law attorneys Erin Masters and Anthony Joseph of Masters Law Group have extensive experience in cases involving international child abduction disputes in both courts located in the State of Illinois and the United States federal court system.
Masters Law Group Featured Hague Decisions:
- Sulcaite, Memorandum Opinion and Order
- Ho, Memorandum Opinion and Order
- Hinnendael, Decision and Order
If your former spouse wants to move out of state or cross international borders with your child against your consent, or they already have, our skilled and experienced team can help. At Masters Law Group, we know the requirements parents must abide by when they want to move, and we know how to challenge the move so you do not lose out on time with your child.
Contact us today to schedule a free consultation so we can discuss your case immediately.