THE HAGUECONVENTION ON INTERNATIONAL CHILD ABDUCTION
Parental kidnapping is harmful to children and is a serious problem. The Hague Convention’s Article on International Child Abduction was adopted in an effort to deter international child abduction. The guiding principle of the Hague Convention is simple – if a child is wrongfully removed from the child’s home country, that child must be returned absent the application of certain very limited exceptions. The courts of the abducted to country have no jurisdiction to make any substantive custody determinations, but, rather, must order the child returned to the abducted from country.
In order for the right of the return remedy to be triggered, the condition precedent is that the child must have been “wrongfully" removed. Removal is considered to be wrongful if it is made in derogation of rights of “custody", as opposed to rights of visitation. If a child was removed in violation of a parent’s right of visitation, then The Hague Convention provides for enforcement of visitation rights, not the return remedy.
While at first the term “custody" appears obvious and not subject to debate, in practice, its application proved to be elusive and resulted in a number of inconsistent judicial determinations from various international jurisdictions. The situation where the question of custody rights arises involves a ne exeat clause which essentially provides a parent with the right to block the removal of the child from the country. Under these circumstances, although one parent may have sole legal and physical custody of a child, in certain jurisdictions the non-custodial parent may have a veto power with respect to the child’s removal from the country.
The US Supreme Court, in the case of Abbott v. Abbott, opined that ne exeat rights are tantamount to rights of custody under The Hague Convention, thereby warranting the return remedy. The US Supreme Court reasoned that under The Hague Convention rights of custody necessarily include the right to determine the child’s place of residence. Since a ne exeat clause vests a parent with a right to determine a child’s residence to be within that specified country, the Supreme Court viewed ne exeat rights as a kind of custody right. In rendering its decision, the Supreme Court interpreted The Hague Convention as broadly as possible in order to give maximum deterrence against international child abduction.
Although The Hague Convention provides a solid framework for returning wrongfully displaced children, with respect to abductions between the United States and the Russian Federation, it offers nothing more than persuasive academic materials. Even though the Russian Federation acceded to The Hague Convention in 2012, the United States has yet to accept its accession. Thus, at the present time, there is no treaty in effect between Russia and the United States respecting child abduction cases. This, in the authors’ opinion, is unfortunate.
In the cases involving abduction of Russian children that we have handled the return remedy was applied by the United States courts without the invocation of The Hague Convention.
THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (“UCCJEA")
The United States legal system is greatly complicated by interstate jurisdictional issues. Child custody orders are unique – unlike other court orders, there is no finality to a child custody order because it always remains subject to modification on the basis of a child’s best interests. In a country with 50 different jurisdictions, divorces and family relocations wrought havoc on the legal system. Realizing that there was a big problem, most states adopted the UCCJEA, which is a uniform act intended to create a consistent and predicable framework. Under the UCCJEA, unless certain very limited exceptions would apply, only the home state of the child would have exclusive continuous jurisdiction to modify a child custody order. A home state is essentially defined as the state wherein the child has resided for at least the last 6 months. Further, if a child was wrongfully removed from his or her home state, the UCCJEA empowers the courts of the other states to order the return of the child to the home state. This in a way is analogous to the return remedy under The Hague Convention.
However, the difficulty lies in enforcement of court decrees not from sister states, but, rather, international custody orders. There is no constitutional requirement to honor foreign judgments/orders, the enforcement of which essentially comes down to principles of comity.
Under the UCCJEA, the United States courts may enforce a foreign custodial decree and order the return of the child to the foreign country if the court is satisfied that the foreign order was not jurisdictionally defective and was consistent with the US notions of due process.
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