According to the laws of the United States a child born in America either to American parents or parents from another country, is an American citizen. A child born to American citizens living in another country is an American citizen. Some people have dual citizenship and are citizens of two countries. Children born to parents from two countries may or may not have dual citizenship. Children of immigrants often have dual citizenship.
Jurisdiction and Domicile; Choice of Law
Jurisdiction refers to the court where the person can file a suit or be sued. Jurisdiction in the United States normally is in the state where the person lives or has "domicile." For example. a military person on assignment overseas is a domicile of the state where he or she normally lives. Family court matters are usually filed in the state court where one of the parents has domicile. If the parents are in two different states there is a choice of law. If children are involved, the matter is normally filed in the state where the children live. If the parents are from two different countries there can be a choice of law there too. Again, the normal course would be to use the court where the children live.
Child Abduction in International Law
If the child is removed from the state of jurisdiction, even by the custodial parent, that parent has committed abduction and can be arrested. Some parents from other countries assume that they can take the child(ren) to their home country and be safe from an abduction charge. This is not true. The Hague Convention is an international agreement of many countries all of which have agreed to uphold the rights of parents whose children have been taken from them.
What courts actually do; what a left behind parent should do
It is important to keep in mind that most courts in most countries are there to enforce their own laws.If the other parent and/or child is a citizen of that country, the court might give precedent to its own rules and customs even when the country is a signatory to the Hague Convention. When there is an abduction the "left behind" parent should contact the US State Department to find out if the country where the child(ren) has been taken is a signatory of the Hague Convention which means it will honor the orders of American family courts. Also contact the consulate (not the embassy) of the other country to find out what court in their country handles the Hague abduction proceedings, and what attorney does this type of work.
What exactly is the Hague Convention and what does it do?
The Hague Convention on Child Abduction is fundamental to international law, but the child's welfare is not the most important or only concern. Instead, the Hague Convention on Child Abduction regulates which of the two countries has jurisdiction to decide where the child should live, i.e., the country where the child was "habitually resident." The Hague Convention then provides for a return to that country. The Convention is an international treaty about where the jurisdiction of the courts of one country ends and that of the courts of the other country start. (The United States is a signatory nation). It must therefore be seen in a light of international treaties which establish borders and boundaries, similar to those about tariffs, etc. If a return is ordered, that does not mean that the court has found that it is in the best interest of the the child to live in the country where it came from. Remember: the courts there may well give the parent permission to relocate later.
How is abduction defined in international law?
For a removal of a child from one country to another or a retention to be "child abduction" under the Hague Convention the following have to apply according to NY family attorney Jeremy Morley:
1. The child has to be habitually resident in the country from where it is taken. Therefore returning from holiday to the country of habitual residence is not abduction. Sometimes the issues on this are not clear.
2. The move has to be in breach of "rights of custody" of someone else. The term is not the same as a similar term in national laws. In America this can be the custodial parent OR the non custodial parent who loses the right to visit. If there is a court case about the child that has started and not finished, the court is regarded as having "rights of custody" for the purposes of the Hague Convention.
3.The "rights of custody" have to be exercised at the time of the move. This can, of course, be fairly low involvement.
When and why a Hague court might deny an application to return a child to America
The Hague Convention provides that the court must order a return. It has the power not to order a return in the following cases: according to NY family attorney Jeremy Morley:
o If more than a year has passed since the removal or retention of the child and the child is settled in its new environment.
o If the person or body (e.g. the court) with "rights of custody" agreed to the removal or retention either beforehand or afterwards.
o If "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.'' Such a risk must arise out of the proposed return to the other country. So, for example, if there has been domestic violence by the father on the mother witnessed by the child and the mother took the child to her home country, the court may find that the laws of the other country will protect her and the child sufficiently so that no further violence is likely to take place.
Additional reasons to deny an application for a return
If "the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Again, this is interpreted by some overseas courts very narrowly. The objection must be to the COUNTRY, not to living with the OTHER PARENT (which is not something the court is asked to decide on in any event). It is very rare that the court would find a child under the age of about 12 was mature enough to make such a decision.
Litigation Procedure: a speedy application and when it is needed.
According to England's Alternative Family Law, prompt action may be critical. The Hague Convention specifically requires that hearings be conducted expeditiously. A Hague case can theoretically be instituted more than a year after the abduction but a defense will then arise that the child has become settled in the new environment and, in practice, the longer a child is in a new place the more likely it is that a court will be reluctant to send the child away. In a nutshell, a Hague Convention application may be made when a child is taken or retained across an international border, away from his or her habitual residence, without the consent of a parent who has rights of custody, if the two countries are parties to the Convention. The child must be promptly returned to the habitual residence unless the return will create a grave risk of harm to the child.
Selecting an Attorney for Hague Application
Hague applications must be done quickly so the child does not become a "habitual resident" of the new country. A lawyer must be selected who can act quickly in the court of appropriate jurisdiction. New York family lawyer Jeremy Morley has provided some practical steps for a Hague Convention litigation (see steps 12-14 below).
The home court
The American lawyer should be someone familiar with the international issues what can and cannot be done in the home state court,and what applications will succeed and what will not.
Notify State Department, File Application
First, counsel should enlist the support of the U.S. State Dept's Office of Children's Issues. Second, the left-behind parent should institute civil proceedings. If there is no custody order in place from a court in the jurisdiction of the habitual residence, an application should immediately be made for such an order. Third, counsel should consider putting the abducting parent on immediate written and formal notice of the consequences, civil, criminal and financial, that the abduction will cause to that parent personally, and,
possibly to others conspiring with the parent. It may be appropriate to provide an extremely short time for the abducting parent to cure the problem by returning the child.Fourth, the parent should consider requesting the federal and state prosecutors to institute both federal and state criminal proceedings. The federal crime of international parental kidnapping is a felony with a penalty of up to three years in prison.
Some cases may merit a federal warrant
Succeeding in a Hague Convention Proceeding
A successful Hague proceeding requires the attorney, working closely with the client, to marshal as much evidence as possible, in as many forms as possible, to support the client's position.
Clients are frequently shocked that matters that to them are obvious and indisputable turn out to be disputed and to require them to produce clear and convincing proof. They may well be insulted that their word alone is insufficient to convince the court that they are truthful and that the other parent is lying.
The matters in dispute in most Hague cases raise difficult legal issues that must be thoroughly briefed. Thus, the Convention requires the left-behind parent to establish that the child was taken from the "habitual residence" and that the parent had "rights of custody" under the law of that jurisdiction. However, neither of those fundamental terms is defined in the Convention and substantial jurisprudence has grown domestically and internationally setting forth contradictory views.
Choosing an American and Overseas lawyer
It is also frequently valuable for a client whose child has been abducted to retain Hague counsel in his or her home country who can coordinate with the Hague counsel in the country to which the child has been taken. Indeed, it will often be the local Hague lawyer who will recommend the overseas lawyer, based on his knowledge of such lawyers in other jurisdictions.