One of the most difficult legal issues in child custody cases is presented when one parent moves with the child to another country. This Legal Guide discusses some of the legal issues and solutions to this problem.
What Exceptions Exist to the General Rule of Mandatory Return of the Child?
The general rule is that a child who has been wrongfully removed from its place of habitual residence must be returned to that country. There are, however, several exceptions to the general rule: (1) the "well settled" defense (i.e., the child has become well settled in the other country because more than one year has elapsed after removal); (2) the "non-exercise" defense (i.e., the custodial parent has failed to exercise their right of custody in a way that constitutes a clear abandonment of the child); (3) the "consent or acquiescence" defense (i.e., the applicant consented or acquiesced in the child's removal or retention for a significant period of time); and (4) the "child's objection" defense (i.e., the child objects to being returned, and is mature enough to make a decision to stay in the other country).
What is the Hague Convention?
When a child is taken to, or retained in, another country, the first question to be resolved is "Which country has jurisdiction to decide which parent will be awarded custody?" The Hague Convention is an international treaty resolves this question. it provides an expedited judicial procedure for getting the immediate return of a child who is wrongfully removed or retained in any country which has signed the Hague Convention.
What is the Issue in a Hague Proceeding?
The court in a Hague proceeding has to decide two main issues: (1) whether the child was wrongfully removed or retained in another country, and (2) whether the child should be returned to the child's "habitual residence." The Hague proceeding does not decide the actual issue of who should have custody of the child; that will be decided in the country where the Hague court says the child should return to or remain in.
What has to be proved to start a Hague Proceeding?
In order to start a Hague Proceeding the applicant parent has to prove three things. (1) that the child's habitual residence is in a Contracting State (i.e., a signator to the Hague Convention); (2) that the child was wrongfully removed or is being wrongfully retained (e.g., after a visitation) in a Contracting State; and (3) that the child is under the age of 16. If these essential facts are established, the applicant parent can initiate a Hague Proceeding by filing an application for return of the child with the "Central Authority" in the child's habitual residence or where the child is located; and then can file a judicial proceeding for return of the child in a court of the Contracting State where the child is located.
What Does the Hague Application Have to Contain?
The Application to the Central Authority is most often filed in the country where the applicant parent is located. In the United States, the Central Authority is the US State Department. It is then transmitted to the Central Authority in the country where the child is located. The Application must contain information about the child and the person who wrongfully removed or retained the child; the child's birth date; the reasons why the child should be returned; and all available information regarding the whereabouts of the child and identity of the person caring for the child.
How is a Court Case Started When the Child is in the US?
When the child is located in the United States, the applicant parent must file a court case in the the appropriate state or federal court. Removal or retention of a child is wrongful if it violates a person's right of custody, and at the time of removal or retention those rights were being exercised. the burden of proof is on the applicant parent. The applicant's right to custody can be shown by a custody order, or by automatic operation of law.
How is a Court Case Started When the Child is in Another Country?
When the child is located in another country which has signed the Hague Convention, a court case has to be filed in that country. If the child's habitual residence is in the US, an American attorney is often very helpful in providing information about US law to the foreign attorney. The American attorney can also assist by getting an emergency US custody order, getting sworn declarations from the parent in the US and other witnesses, and assist in filing the Hague application (in the US).
DISCLAIMER: This AVVO Legal Guide is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney author. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Legal Guide is general in nature and may not apply to the factual circumstances in your situation. The applicable law may be different in the State or States where the relevant facts occurred. For a definitive solution to your situation you should seek legal advice from an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation.