Custody of Children Across Borders-The Hague Convention

Filed under Divorce and family law.

In today’s fluid society, we sometimes see circumstances where one or both spouses are from a foreign country. Parents are occasionally concerned that if they allow the children to travel internationally with the foreign spouse, they will risk losing the children forever. These concerns are abated, at least somewhat, by the Hague Convention.

The United States is a party to the Hague Convention on the Civil Aspects of International Child Abduction. A primary goal of the Hague Convention is to secure the prompt return of children wrongfully removed to or retained in any country which is not the child’s country of habitual residence. The Hague Convention does not have any effect or impact upon deciding custody issues, nor does it focus on the underlying merits of a custody dispute. Rather, it determines under what circumstances a child should be returned to a country for custody proceedings under that country’s laws.

The parent seeking relief under the Hague Convention must establish that a child has been wrongfully removed or retained in breach of that parent’s custodial rights granted by the law of the State in which the child was habitually resident immediately before the removal or retention. The parent must also establish that at the time of the wrongful removal or retention of the child, that parent was actually exercising those rights, or would have but for the removal or retention.

If the removal or retention was wrongful, then the court must order the child returned to his or her habitual residence for a custody determination, unless the responding parent (the parent who removed or retained the child ) can establish one of the following: (1) more than one year has passed since the wrongful removal or retention and the child is settled in his or her new environment; (2) the petitioning parent was not actually exercising custody rights at the time of the removal or retention; (3) the petitioning parent had consented to or subsequently acquiesced in the removal or retention; (4) the child objects to being returned and is of an age and maturity level at which it is appropriate to take account of his or her views; (5) 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,” or (6) the return of the child would be inconsistent with “fundamental principles ... relating to the protection of human rights and fundamental freedoms.”

Even given the above protections, there are still problems to be addressed in the application of the Hague Convention. One such problem is that the Hague Convention does not define the term “habitual residence.” In determining whether a child has acquired a new habitual residence, there must be an intention to abandon the residence left behind, an actual change in geography, and the passage of a significant period of time.

A second problem is that the Hague Convention also does not define the “exercise” of rights of custody. Courts have found “exercise” whenever the custodial parent keeps, or seeks to keep, any sort of regular contact with his or her child. Courts have also found that the custodial parent cannot fail to “exercise” those custody rights under the Hague Convention in the absence of clear and unequivocal abandonment of the child.

A third problem arises with regard to the consent or acquiescence defenses, which are also undefined by the Hague Convention. Generally, the two defenses are different in that the consent defense involves the custodial parent’s conduct before the removal or retention, while acquiescence defense addresses whether the custodial parent subsequently agreed to or accepted the removal or retention. With regard to consent, the courts will consider what the custodial parent actually agreed to when allowing the child to travel outside of his or her country of residence and the scope of the consent. A parent may consent to removal of a child for a period of time, under certain conditions or circumstances, but that does not make retention of the child beyond those conditions or circumstances necessarily permissible. A parent’s conduct following the removal of a child is a key factor in ascertaining whether such consent was provided at the time of removal. Acquiescence may take the form of some formal statement, such as a sworn declaration or affidavit. It may take the form of testimony in a judicial proceeding. It may also be established by a consistent failure to take any action to recover the child over a significant period of time.

For more information about family law and custody issues, contact us to schedule a consultation.