01 Apr Hague Convention and Child Abduction
Margaret A.M. Heine
is the principal counsel at Heine Law Group in Fullerton, California. She is licensed in California and Washington and has authority to practice before the Supreme Court of the United States and the United States Court of International Trade.
HAGUE CONVENTION AND CHILD ABDUCTION
If you have ever been involved in a dissolution of marriage and had minor children, there is an international and a federal agreement which most likely would be of interest to you if you were married to a foreign born person or a person with personal connections outside of the United States. The two provisions are the International Child Abduction Remedies Act (ICARA) and the Hague Convention on Civil Aspects of International Child Abduction. In the United Sates, the International Child Abduction Remedies Act (ICARA), was passed and became effective in April 1988, it is codified at 42 U.S.C. 11601. ICARA puts into place the mechanisms that can be utilized under the Hague Convention on Civil Aspects of International Child Abduction, which was passed in 1980. The two provisions work hand in hand in an attempt to return children to the rightful custodial parent when the child is taken out of the country and then is prevented from returning to the custodial parent in the “home country.”
The Hague Convention was adopted to provide a mechanism in which the custodial parent could bring action for the return of their child who was taken abroad and now the non-custodial parent is refusing to return the child. This intra-family abduction is sadly common in many areas, and creates confusion and havoc on the custodial families and the children who become international pawns in dissolution disputes.
The Hague Convention does not attempt to re-litigate or make decisions regarding who the custodial parent should be, but simply to provide mechanisms for the rightful custodial parent to be reunited with the child who was abducted. The Hague Convention only applies between countries who are members of the Convention. There are currently approximately 98 countries which are members of the Convention. Non-Hague Convention countries provide their own unique sets of circumstances, but offer little support to the custodial parent whose children is not being returned to them. The United States joined the Hague Convention in 1988, and the passage of the International Child Abduction Remedies Act followed. The Hague Convention is applied when a child is taken from their home country and brought into another country, whether they are kidnapped, visiting and not returned, or otherwise denied to the custodial parent.
In order for the Hague Convention to apply, the child must have been a resident of the country where the petition is filed, a regular resident which typically would be where a court awarded primary custody to the parent living in that country. Both countries must be parties to the Hague Convention, and the child is being withheld from the custodial parent “wrongfully”or against the legal rights of the custodial parent. If there is consent, then a petition cannot be brought, and consent could be implied based on the actions of the parties.
When a child has been taken out of the country and has failed to be returned, an action may be filed in either State or Federal court for the return of the child to the custodial parent. It is critical to the success of the petition that it is filed within one year of the child’s failure to return. As the standard as to the harm to the child becomes diluted the longer the child is out of the country and away from the custodial parent. A full defense to a Hague Convention petition is that the child would be at “risk” of physical or physiological damage if returned to the custodial parent. If the petition is denied it is critical to file a timely appeal of the decision or lose any possibility of the courts assisting with the return of the child.
Unfortunately, the Hague Convention is limited in actually helping the custodial parent to locate the missing parent and child, prevent the movement of the child from nation to nation or the expenses of an international manhunt for the missing child. However, a petition which has been approved can be filed in the Hague Convention country in order to target and identify the missing parent and child and have them held if they are moving internationally. In the United States, it could be helpful in any dissolution decree to limit the ability of one parent to obtain a passport for a minor child. U.S. law reflects that both parents have tosign a passport application, so, having the passport of a minor child held or rescinded would prevent either parent from taking the minor out of the country in most cases.
In addition to the above laws, there is an Inter-American Convention on the International Return of Children which covers many areas of Central America, South America, and the Caribbean Islands; the Convention is similar to the Hague Convention with the same goals to return a child to the custodial parent. Each area has developed its own laws on how to best enforce the conventions, but usually provide some method for the custodial parent to regain custody of the missing/abducted child. In non-Hague Convention Countries, it is much more difficult to bring home the abducted child. For example, China and Taiwan do not have any laws addressing international parental child abduction. It is not a criminal offense for one parent to abduct a child and keep the child from the custodial parent. This makes it very difficult to get support for the return of the child. If you believe that the non-custodial or even a joint custodial parent is a flight risk who might take the child to a different country, be sure that you inform your attorney and the court so that appropriate steps can be taken to lessen the likelihood of child abduction. It is difficult with our borders being so open, but there are steps which can increase the likelihood that the child will not be taken out of the country to begin with, and making recovery more possible.