How Does a Judge Determine if A Child Should Be Returned to Another Country Pursuant to the Hague Convention?
In an increasingly mobile world, it is often times hard to determine what country a party, especially a child, resides in. As a result, several countries are signatories to the Hague Convention which allows for the return of a child to the state in which the child is a “habitual resident”. Given the problems that can occur with said definition, there is a lot of case law trying to define same.
The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), opened for signature Oct. 25, 1980, T.I.A.S. No. 11,670, and the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. 11601 et seq., generally require courts in the United States to order children returned to their countries of “habitual residence” if those children have been wrongfully removed to, or retained in, the United States. The Convention has two main purposes: to ensure the prompt return of children to the state of their habitual residence when they have been wrongfully removed” and to ensure that rights of custody and access under the law of one Contracting State [i.e., signatory to the Convention,] are effectively respected in the other Contracting States.
In evaluating cases where more than one country could possibly be the country of “habitual residence”, the courts have looked to the intent of the parents as a particularly important factor in understanding the context of a child’s move to another country. As such, a child’s habitual residence changes when the child becomes settled in another country, even if one or both of the parents intend for the child to return to the original country of habitual residence.
After a court determines which country is the child’s habitual residence, the court must then determine if the child was wrongfully removed from that country. Whether a child’s removal or retention was wrongful within the meaning of the Convention involves two inquiries: (a) whether the removal or retention breached petitioner’s custody rights under the law of the State in which the child was habitually resident immediately before the removal or retention and (b) whether petitioner was exercising those custody rights at the time of the removal or retention, or would have been but for the removal or retention.
As a result, the courts must then look at the local domestic relations law of that particular county from that particular country, to determine if that parent had violated the custody laws of that state in that country, and whether that parent was in fact exercising those custody rights. A parent could also use the defense that the child is now “well-settled” in the new country, or that returning the child to the other country would result in immediate harm to the child.
This area of law tends to be complex especially because it involves the interaction of two countries who may have differing laws or interpretations about which country the child should be returned to. As a result, the application of this particular law differs vastly despite all of the countries adopting the same law. If you feel this law applies to you or your child, it is important to note that there is a one-year filing requirement to file a Hague Petition. Contact a lawyer to discuss the facts of your case before its too late.