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Parental Child Abduction? Hire a Hague Convention Attorney.

The Hague Convention on the Civil Aspects of International Child Abduction is the main international agreement that covers international parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country.

A number of countries around the globe have joined a treaty called the Hague Convention. 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.

According to the Convention, the removal or retention of a child is “wrongful” whenever it breaches custody rights attributed to a person or any other body. If, at the time of removal or retention, those rights were exercised. Even if a parent already has legal custody of a child, the Convention is needed. 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.

LIST OF U.S HAGUE CONVENTION TREATY PARTNERS

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.

 

Andorra Lithuania
Argentina Luxembourg
Armenia Macedonia, Republic of
Australia Malta
Austria Mauritius
Bahamas, The Mexico
Belgium Monaco
Belize Montenegro
Bosnia and Herzegovina Morocco
Brazil Netherlands
Bulgaria New Zealand
Burkina Faso Norway
Canada Pakistan
Chile Panama
China (Hong Kong and Macau only) Paraguay
Colombia Peru
Costa Rica Poland
Croatia Portugal
Cyprus Korea, Republic of
Czech Republic Romania
Denmark Saint Kitts and Nevis
Dominican Republic San Marino
Ecuador Serbia
El Salvador Singapore
Estonia Slovakia
Fiji Slovenia
Finland South Africa
France Spain
Germany Sri Lanka
Greece Sweden
Guatemala Switzerland
Honduras Thailand
Hungary Trinidad and Tobago
Iceland Turkey
Ireland Ukraine
Israel United Kingdom (Anguilla, Bermuda, Cayman Islands, Falkland Islands, Isle of Man, Montserrat)
Italy Uruguay
Jamaica Venezuela
Japan Zimbabwe
Latvia

 

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.

Contact us to schedule your consultation here today.

 

Hague Convention: 6 Defenses to a Petition for the Return of a Child.

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. Under the Convention, a court may deny return of an abducted child if one of the following six defenses apply.

When a parent is subject to an application either in the State Court or the Federal Court for return of a child who is alleged to be illegally taken from a foreign country and brought to the United States, or wrongfully retained in the United States beyond the agreed upon time frame of temporary absence, there are certain defenses that can be raised by the non-petitioning parent in order to prevent the return.

History of Hague

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.

Under the Hague Abduction Convention and ICARA, when a child has been wrongfully removed from the child’s home nation-state or “habitual residence,” the court must order the child to be returned to the habitual residence, unless the party removing the child can establish at least one of six narrow affirmative defenses.

Six Defenses

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.

Relocating Your Child

Whether due to job requirements (like working in the military) or simply moving back to be with family, many separated or divorced US parents relocate abroad every year. You must realize it will often be a criminal offense for you to take the child away without the other parent’s permission. Illinois Courts require that a parent looking to permanently relocate a child from the State of Illinois have a written agreement and/or Court Order allowing the move.  There are a variety of factors the Court will consider in adjudicating whether the move is within your child’s best interest.

As previously mentioned, under the Hague Convention you will “wrongfully remove” a child if you take the child away from his or her habitual residence. Therefore, the other parent will normally be able to block your removal of the child from that country and if you take the child to the United States a U.S. court will normally compel you to return the child forthwith.

It is imperative you make any International Custody Agreements & Parenting Time schedules before you relocate your child/children.

In deciding whether to authorize a child’s relocation to a foreign country, U.S. courts will try to determine the best interests of the child, considering the same factors they normally consider in domestic move-away cases (these factors depend on the laws of state that has jurisdiction to hear the case). In addition, with international move-away cases, most state courts will also consider several additional factors, including (as per DivorceNet):

  • The cultural conditions and practices in the foreign country
  • Any potential visitation difficulties for the parent that gets left behind
  • Jurisdictional issues that may make the enforceability of the domestic custody and visitation orders problematic (meaning the extent to which the foreign country would enforce the left-behind parent’s visitation or rights to access the child), and
  • Whether or not the proposed foreign country is a signatory to the Hague convention (however, the fact that the proposed country is not a signatory does not automatically mean the request to relocate will be denied).

If you want to move your child out of the United States or your child’s other parent does, you should definitely contact an experienced custody attorney for advice on how to protect your parental rights.

Getting the Help You Need

Left behind parents face enormous obstacles in seeking judicial intervention in the United States to compel return of their children. Proving claims in international child abduction cases under the Hague Abduction Convention requires analysis and careful development of all evidence and testimony that may support or defeat defenses to claims of wrongful abduction or retention.

The attorneys at Masters Law Group 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. We 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.

Contact us here today to schedule a consultation.

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.

Defenses/Objections

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.

Outcomes

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

Final Thoughts

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.

Contact us to schedule your consultation here today. 

Masters Law Group Case Review: Hague Convention on Civil Aspects of International Child Abduction.

The Hague Convention on the Civil Aspects of International Child Abduction is a treaty between signatory countries (or “contracting states”) that provides for the prompt return of an abducted child to his or her country of habitual residence. Here, Masters Law Group fought, and won a landmark ruling in favor of our client.

CASE OVERVIEW

The husband filed a petition for the return of his two children, (a two year old and eight-month old) who were taken from their residence in Mexico to Wisconsin, USA by his wife – the mother of the two children – represented by Masters Law Group LLC in the Eastern District of Wisconsin United States District Court where the Law Firm of Conway, Olejniczak & Jerry, S.C. served as local counsel.

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 DETAILS

In this case, the mother removed the children from where the family was living in Mexico, and took them to Wisconsin.. The father then commenced an action for the return of the children under the Hague Convention. For the reasons that follow, the Court denied the father’s petition.

CASE RESULTS

ICARA AND THE HAGUE CONVENTION Under the ICARA, a petitioner seeking return of a child must establish by a preponderance of the evidence that the child has been wrongfully removed or retained within the meaning of the Convention.

The removal or retention of a child is to be considered wrongful where – (a) it is a breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

But “[b]ecause children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers,” the Monasky Court noted that “the intentions and circumstances of caregiving parents are relevant considerations.” Id. at 727. Importantly, with respect to children, the Court explained that “an infant’s ‘mere physical presence’ . . . is not a dispositive indicator of an infant’s habitual residence.” Id. at 729. “No single fact, however, is dispositive across all cases.”

Based on the foregoing case details (found here),details the court found that the grave risk exception applied and held that returning the children to Mexico and separating them from their mother would expose them to a grave risk of psychological harm or otherwise place them in an intolerable situation. Case 1:20-cv-01028-WCG Filed 10/16/20 Page 9 of 10 Document 102.

CONCLUSION

In sum, the court found that the father has failed to meet his burden of establishing by a preponderance of the evidence that his children were habitual residents of Mexico. In addition, the court found by clear and convincing evidence that returning the children would subject them to a grave risk of psychological harm or otherwise place them in an intolerable situation.

Accordingly, the retention of the children in the United States was not wrongful within the meaning of the Convention. The petition is therefore denied, and this action is dismissed.

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.