Tag Archive for: Hague abduction convention

Demystifying the Hague Convention: Essential FAQs Answered

The nightmare of having your child taken across borders is a frightening reality for a growing number of parents across the globe. Under the Hague Convention, solutions are provided for parents who seek the return of their child to their country of habitual residence.

International Parental Child Abduction is an act of illegally taking a child from their residing home by one of the parents across international borders. If you suspect the possible scenario of International Parental Child Abduction in your family, here are some questions and answers that can provide valuable insight.

1. What is the Hague Convention?

The Hague Convention was enacted into law through the International Child Abduction Remedies Act (ICARA). This law provides help to parents whose child or children have been wrongfully removed from or retained in their custody. They may petition for the child’s return to their country of habitual residence.

This Hague treaty was developed by the Hague Conference on Private International Law (HCCH) and entered into force in December 1983. There are over 93 countries that participate in the treaty. This treaty governs the way other countries’ 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 help ensure 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.

2. What Is “Wrongful Removal” Under The Hague Convention?

Deciding whether to file a Hague application is a big decision. It depends on the specific circumstances of each case. A wrongful removal or retention of a child is considered illegal if it violates your custodial rights and you were exercising those rights at the time of the removal or retention.

In order for the Hague Convention to apply, it must have been in force between the two countries when the wrongful removal occurred. When a country joins the Convention, it doesn’t automatically partner with all countries that have ratified or joined it. Instead, countries must accept another country’s accession to the Convention before forming a treaty partnership.

3. How Can A Hague Lawyer Help?

A Hague Convention lawyer has experience handling cases related to international child abduction and custody disputes governed by the Hague Convention. They possess in-depth knowledge of the Convention’s provisions, procedures, and legal precedents, enabling them to navigate the complexities of your case effectively. Here’s how a Hague lawyer can assist you:

  • International Legal Aid: Hague lawyers often have established networks of lawyers and resources worldwide, facilitating communication and collaboration across international borders.
  • Negotiation and Mediation: A Hague lawyer can represent your interests during negotiations. Reaching an amicable resolution through negotiation or mediation is preferable to lengthy court proceedings.
  • Court Representation: If your case proceeds to court, your Hague lawyer will advocate on your behalf, presenting compelling arguments and evidence to support your child’s return to their country of habitual residence.

4. How Long Is The Hague Convention Process?

Contrary to common belief, the Hague Convention doesn’t guarantee the automatic return of a child in every case. While it provides a legal framework for facilitating such returns, various circumstances, defenses, and exceptions may complicate matters. Some cases can be resolved relatively quickly, within weeks or months.

While others may drag on longer, especially if they involve complex legal proceedings or appeals, one exception is when there are genuine concerns about the child’s safety or well-being. In such cases, the Hague Convention prioritizes the child’s welfare and safety. Working with a Hague lawyer can help you understand what steps to take to get the swift and safe return of your child.

5. What Steps Should I Take If My Child Has Been Wrongfully Taken?

Discovering that your child has been wrongfully taken across borders is a harrowing experience. Acting swiftly and decisively is crucial if you are in this unfortunate situation. Here are essential steps to consider as you navigate this distressing ordeal:

  • Consult with a Hague Lawyer: Seek legal advice from a Hague Convention lawyer. They can assess your case and guide you through the legal process.
  • File a Hague Application: Depending on your country of residence, you may need to apply the Hague Convention through the appropriate central authority. Your lawyer can assist you with completing and submitting the necessary documentation.
  • Gather Evidence: Collect evidence supporting your claim. This includes documentation of your custody rights, evidence of the child’s habitual residence, and communication with the other party regarding the abduction.
  • Cooperate with Authorities: Work closely with law enforcement, central authorities, and Hague lawyers involved in your case. Provide them with any requested information or assistance to facilitate the prompt resolution.

Finding Legal Representation

Selecting a Hague lawyer familiar with state, federal, and international laws is crucial. Masters Law Group attorneys Erin Masters and Anthony Joseph have years of experience handling Hague Convention cases. Our experience in the Hague Convention field shows our competence in providing legal counsel for these stressful scenarios.

For more information, here are a few of our highlighted Hague Convention cases:

Contact our office today to schedule your consultation.

MASTERS LAW GROUP HAGUE CONVENTION CASE REVIEW: THE DISTRICT OF COLORADO/COLUMBIA

International parental abductions have been reported in countries all over the world. In one of our most recent Hague Convention cases, the attorneys at Masters Law Group succeeded in this landmark ruling in favor of our client.

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.

In our most recent case that concluded on February 20, 2024, the husband – represented by Masters Law Group –  filed a petition for the return of his two children, who were taken from his residence in Colombia to the United States by his wife – the mother of the children. As relevant here, the Hague Convention provides that a parent whose child or children have been wrongfully removed or retained in the United States may petition for the child’s return to his or her country of habitual residence.

CASE OVERVIEW

Before the Court is Petitioner’s Verified Complaint and Petition for Issuance of a Show Cause Order and for Return of Minor Children to Colombia (D. 1). The Court held a bench trial on February 14-16, 2024, with both parties physically present and testifying. The Court GRANTED the petition for the following reasons.

Case Background

This case involves a Hague Convention petition for the return of two minor children born in Colombia to a Colombian citizen petitioner and a United States citizen respondent. The parties were married in the United States in 2012 and lived together in Colombia. The respondent, a full-time childcare provider, took the children to the U.S. for a family reunion but faced passport renewal delays. The Petitioner acquiesced to the extended stay. Despite attempts to attend mediation remotely, The Petitioner canceled, insisting it be rescheduled upon their return to Colombia.

This case arises under the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq., which implements the Hague Convention on Civil Aspects of International Child Abduction.

The Act entitles a person whose child has been removed from his custody in another country and taken to the United States to petition in federal or state court for the return of the child.

CASE RESULTS

The Court finds in favor of the Petitioner, concluding that the Respondent wrongfully retained the children and dismissing her claim of grave risk of harm. The Petitioner’s request for the return of the children to Colombia is granted.

Respondent is ordered to ensure the children’s return to Colombia within 28 days, by March 20, 2024, either with herself or an authorized caregiver. Seven days before their departure, Respondent must provide details of the return flight to the Petitioner.

Petitioner may seek reimbursement for expenses following Federal Rule of Civil Procedure 54(d)(1) and D.C.COLO.LCivR 54.1. Respondent is liable for costs, legal fees, and transportation unless proven clearly inappropriate.

The case is hereby closed.

Date: February 20, 2024.

READ THE FULL CASE REVIEW HERE.

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HAGUE CONVENTION – INTERNATIONAL CHILD ABDUCTION LAW WITH MASTERS LAW GROUP

Erin Masters and Anthony Joseph have extensive experience in cases involving international child custody disputes in both courts located in the State of Illinois and the United States federal court system.

Erin Masters and Anthony Joseph have extensive knowledge and experience with The Hague Convention on Civil Aspects of International Child Abduction (“The Hague Convention”) that 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.

SCHEDULE A CONSULTATION

If you are faced with instituting or defending child abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction in the United States, work with the experienced lawyers at Masters Law Group. Contact us here today to schedule a consultation.

The Muddy Waters of Financial Restitution Against Parental Abductors

In federal court, a convicted offender may be ordered to reimburse victims for financial losses incurred due to the offender’s crime. This reimbursement is called “restitution”. Parental International Child Abduction is against the law, however, the provisions of such cases are not crystal clear. Read on to learn more. 

Parental kidnapping on an international level is on the rise, and it has become a serious concern for many. We often wonder whether the law considers it a crime, and the answer is definitely “yes”.

Individual perpetrators may be held responsible for reparations in international criminal procedures, yet experiences to date demonstrate this to be an unlikely avenue for the majority of victims.

Under U.S. law, a left-behind parent whose child has been abducted to the United States can seek reimbursement from the abducting parent for the expenses incurred in seeking the child’s return. 22 U.S.C. §9007(b)(3).

However, there is no clear provision entitling a left-behind parent whose child has been abducted out of the United States to seek reimbursement from the abducting parent for the expenses incurred in seeking the child’s return to his or her home country.

Here’s what you need to know about financial restitution against parental abductors.

Gray Areas of Financial Restitution

Restitution is the practice of holding offenders accountable for the financial losses suffered by victims of their crimes. Restitution may be ordered in both juvenile and criminal courts to compensate victims for out-of-pocket expenses that are the direct result of a crime. When it comes to International Child Abduction cases through The Hague Convention, the Ninth and Tenth Circuits appear to disagree on whether federal law allowing restitution to crime victims can be used to recoup a left-behind parent’s legal expenses.

Examples of Financial Restitution

The Victim and Witness Protection Act of 1982 permits a federal district court to order a criminal defendant to pay restitution to a victim in an amount up to “expenses related to participation in the investigation or prosecution of the offense.” 18 U.S.C. §3663(b)(4). But as you’ll read below, on appeal, the Tenth Circuit overturned the restitution award.

In 2002, U.S. v. Cummings, 281 F.3d 1046,  the defendant’s father was convicted of violating the International Parental Kidnapping Crime Act (IPKCA) by abducting his children from their home in Washington State to Germany. 

The mother who was left behind brought a return action against the father under the Hague Abduction Convention and an action in Washington State for contempt of court for violating a custody order. The father was sentenced to jail time, ordered to pay the mother’s legal fees and expenses, and required to participate in counseling.

The Ninth Circuit affirmed the restitution award, holding that the mother’s civil cases were not “wholly separate” from the government’s prosecution of the father. This was supported by the fact that, by initiating a case under the Hague Convention, the mother had followed the procedure specifically described in the International Parental Kidnapping Crime Act as the preferred “option of first choice” for a left-behind parent.

In 2020, U.S. v. Mobley, 971 F.3d 1187, did not follow the Cummings verdict. In Mobley, the government prosecuted a mother under the International Parental Kidnapping Crime Act (IPKCA) for her abduction of her children from their home in Kansas to Russia. Once she was in Russia, she filed for divorce and custody; the left-behind father then sued for divorce and custody in Kansas. 

The Russia court had given custody to the mother, and the Kansas Court gave custody to the father. The district court found the mother guilty under the IPKCA and ordered restitution to the father of legal fees and expenses that he incurred in connection with both civil cases.

However, on appeal, the Tenth Circuit held that the trial court erred in awarding restitution under 18 U.S.C. §3663 because the expenses incurred were not related to the investigation or prosecution of the mother’s criminal offense. It held that these terms are limited to proceedings related to the government’s investigation or prosecution and those proceedings related to attendance at court related to such matters. 

The evidence showed that while there was no evidence that the government sanctioned or directed the father’s civil proceedings, there was also no evidence that his suit assisted in any way in the criminal prosecution against the mother.

Based on the analysis of the current state of international law, it is clear that the state has positive duties to prevent violations and demonstrate due diligence. But there’s a long way to go.

How Masters Law Group Can Help

There is an increasing trend in favor of enabling individual victims of violations of international humanitarian law to seek reparation directly from the responsible State. However, the water is muddy to say the least. In future cases, the recent codification of international criminal law has significantly influenced the discourse on post-conflict justice, while legal research on post-conflict justice has been inspired by the rapid developments in international justice mechanisms. As a result, much focus has been on the accountability of perpetrators, in particular, in the application of universal jurisdiction.

The family law attorneys at Masters Law Group are highly experienced with international parental child abduction disputes. If you believe your child is at threat of being abducted by a parent, legal guardian, or someone acting on their behalf, contact us today for a consultation.

For more information on our recent Hague Decisions, see here: