International Child Custody and the Hague Convention

In the arena of dual-nationality marriages and divorce, the issue of international child custody occasionally arises. Some of these cases involve claims of child abduction by one parent or custodian. The Convention of the Civil Aspects of International Child Abduction (ICARA, or Hague Convention) dictates the procedural and jurisdictional protocol for remedies for nationals of Hague Convention countries.

The Hague Treaty allows parents or guardians of children abducted either from the United States or from a member country to the United States. The objects of the Hague Treaty are:

Article 1 (a): To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

Article 1 (b): To ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

While a decision under the Hague Convention is not a determination of the custody of the minor child pursuant to Article 19 of The Convention and/or 42 U.S.C. 11601(b)(4), a State or Federal court has jurisdiction to render decisions regarding the return or retention of minor children either brought to or removed from the United States.

In order to establish a prima facie case for wrongful removal or retention of a child where (a) it is in 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.

Defenses to a Hague Convention Petition

Under Article 12 of the Convention, the court has discretion not to order the return of the child if the proceedings were commenced more than one year after the alleged wrongful removal or retention of the child and the child is now settled in his or her new environment.

Under Article 13 of the Convention, notwithstanding when the proceedings were commenced or whether the child is settled in the new environment, the court has discretion not to order the return of the child if the party opposing the return establishes that 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.”

Hague petitions for wrongful removal or retention of a minor child are highly charged and fraught with emotion. Stakes are high and consequences are monumental, and it is advisable to seek competent counsel for representation.