Navigating The Hague Convention – International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction provides an expeditious method to return a child internationally abducted by a parent from one member country to another. The powerful international treaty that can yield beneficial results when it is implemented correctly and appropriately.
The History of the Hague Convention
The Hague Convention on Civil Aspects of International Child Abduction (“The Hague Convention”) 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.
According to the Convention, the removal or retention of a child is “wrongful” whenever it breaches the rights of custody attributed to a person or any other body and if at the time of remove or retention those rights were actually exercised. Even if a parent already has legal custody of a child, the Convention is needed because U.S. court orders may not be recognized in other countries and sovereign nations cannot interfere with each other’s legal systems, judiciaries, or law enforcement.
As of July 2019, there are 101 states are a party to the convention.
Initiating the Process
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 county’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.
If the conditions for the return of a child to the country of habitual residence are established, there are at least six possible defenses, or exceptions to the mandatory return of a child. The burden of proof rests firmly upon the parent who opposes the return.
Under the Convention, a court may deny return of an abducted child if one of the following defenses apply:
- There is a 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;
- The child objects to being returned and has attained an age and degree of maturity at which the court can take account of the child’s views; or
- More than one year has passed since the wrongful removal or retention occurred and the child has become settled in his or her new environment.
- The party seeking return consented to or subsequently acquiesced to the child’s removal or retention.
- The return would violate the fundamental principles of human rights and fundamental freedoms in the country where the child is being held.
- The party seeking return was not actually exercising rights of custody at the time of the wrongful removal or retention;
Note: Interpretation of these exceptions varies from country to country.
If a court decides that a child must be returned to its country of habitual residence, it may make the return contingent upon certain “undertakings” from the petitioning parent. These may include:
- A requirement that the petitioner pay for the respondent and child to travel to the country where the child habitually resides.
- A requirement that the petitioner make appropriate housing arrangements for the respondent and child in the country where the child habitually resides.
- A requirement that the petitioner pay living expenses for the respondent and child in the country of the child’s habitual residence.
- An order that the petitioner have no contact with the respondent if the respondent returns to the country of the child’s habitual residence.
- An order that the petitioner will have no contact or limited (e.g., supervised) contact with the child once the child returns to the country of the habitual residence.
As you can see, international custody disputes are almost always extremely complex and delicate situations, and you should not attempt to navigate them without the assistance of a knowledgeable and experienced attorney.
Why Choose Masters Law Group?
International custody issues can be incredibly difficult to deal with as a parent because of the concern you have for the safety and security of your child, and should be handled properly by a knowledgeable attorney.
Erin Masters and Anthony Joseph have extensive experience in cases involving international child custody disputes and kidnapping in both courts located in the State of Illinois and the United States federal court system.
Read the details of our most recent successful Hague Convention case here. Furthermore, see what our clients have to say on representing their Hague Convention on Civil Aspects of International Child Abduction case:
I had a very difficult case in the United States Federal Court. My ex husband filed a Petition against me under the Hague Convention on Civil Aspects of International Child abduction asking to return our two sons to Lithuania. Seeking for the legal representation, I was advised by the U.S. Department of State to contact lawyer Erin E. Masters. I was so lucky to have the team of the best lawyers Erin E. Masters and Anthony G. Joseph representing me in this difficult trial.
They represented with the highest standards of law, but also provided support and empathy through the process. The communication was fantastic, always answered every question, explained every situation and possible outcome. As it was a very fast track case, Erin and Anthony worked hard including weekends to prepare everything for the hearing. There was only one hearing and the Decision was totally in my favor. All my family, especially the kids, are very grateful! It is also fair to mention that the legal expenses for the amount of services provided was very very reasonable. Taking in mind my difficult financial situation, Erin even agreed to provide the service for the reduced fee.
I will gladly recommend Erin Masters and Anthony Joseph to represent any of my friends and family in need of an excellent and highly professional family attorney.
— Aistė Šulcaitė
Instead of trying to figure out international law issues alone, contact the Family Law Attorneys at Masters Law Group. Our experienced team will help you navigate the legal complexities of your case and are committed to vigorously representing you in these frightening, high-stakes proceedings.