Every day, children are wrongfully removed from the United States or retained outside of the United States in violation of parental rights. Whether trying identifying risk factors or your child/children have been removed from their habitual residence, knowing your legal options through The Hague Convention could prove detrimental in protecting victims involved.
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.
“International parental [abduction] can have serious emotional, psychological, and even physical consequences for the abducted child.”
– A Law Enforcement Guide on International Parental Kidnapping, U.S. Department of Justice (July 2018), page 3.
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.
There are several tips to try and prevent international child abduction from taking place. As per Travel.State.Gov:
- Take action if you think the other parent has taken your child.
- Get a court order or custody decree: A clear court order may be the most important preventative measure. For example, court orders may include provisions addressing passports, travel restrictions, or custody.
- Consult an attorney: We strongly encourage parents to consult with an attorney regarding their particular circumstances, including the possibility of obtaining an order that prohibits the child from traveling outside of the United States.
- Be aware of warning signs: Be on the alert for sudden changes in the other parent’s life, such as quitting a job or selling a home, that may be made in preparation to relocate. For more information, click on the Travel.State.Gov Resources for Parents page.
- Notify local law enforcement and give them copies of any court orders, including custody, protection, and restraining orders.
- Consider contacting a country’s foreign embassy or consulate if your child is or may be a dual national of that country. If one parent is a citizen of another country, for example, your child may have claims to a foreign nationality and therefore be able to obtain a passport from that country. See the Travel.State.Gov FAQs for more information on dual nationality.
- Be aware the United States does not have exit controls or require two-parent consent for a minor to travel across international borders. Law enforcement may be unable to prevent an abduction without a valid court order clearly prohibiting the child’s travel outside of the United States.
RETURNING OF THE CHILD/CHILDREN
International parental abductions of U.S. children have been reported in countries all over the world, including Australia, Brazil, Canada, Colombia, Germany, India, Japan, Mexico, Philippines, and the United Kingdom. A parent who is left behind when a child is abducted to another country faces daunting obstacles to finding and recovering the child.
The return of internationally abducted children is often settled through negotiation or with the left-behind parent filing a civil petition pursuant through the Hague Convention. 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 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.
CHOOSING YOUR ATTORNEY
To make sure you have the best possible chance in your Hague Convention case, you need an attorney who understands both the dire circumstances and the delicate interplay of state, federal, and international laws.
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.
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:
Anthony Joseph and Erin litigated my Hague Convention federal court case and, after a terrifying and tiring few months, we won our case!! If I didn’t have the direction and focus of these two we wouldn’t have won. Anthony is a shark, no one will work harder and smarter and know every detail in the court like this man. AND ERIN!!!!! She is dotting all the i’s and crossing the T’s. Not one thing will get by her. She thinks outside the box and will find a solution to every problem. They way they work together, the other side doesn’t have a chance in court. Because of these two my children are safe with me in the USA and we won an extremely difficult to win case. 9/10 times the children have to go back to the country they were taken from, in this case it was Mexico. I had the odds stacked against me hugely. It’s very difficult to get any judge to side with the person who left with the children. Because of their expertise in Hague, they found the important details to keep my kids and myself away from our abuser who tried to get us back into the scary situation we were living in. THANK YOU TO YOU BOTH. Every day I’m grateful for them changing my life. When something this is important is at stake it is imperative you choose great counsel. And Masters Law Group is it.
– Sharon H, Hague Convention Client Testimonial
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.