Interpreting the Hague Convention On International Child Abduction: Why American Courts Need to Reconcile the Rights of Non-Custodial Parents, the Best Interests of Abducted Children, and the Underlying Objectives of the Hague Convention

Summary

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The global problem of wrongful removal or retention of a child by a parent was not officially recognized until the late 1970s, when the international community drafted the Hague Convention on the Civil Aspects of International Child Abduction in 1980. The Convention serves as the primary civil judicial remedy for international parental abductions of children under the age of sixteen. The US ratified this treaty and enacted the International Child Abduction Remedies Act of 1988 to bring the Convention into force. Here, Wills argues for a uiniform, consistent interpretation and treatment of Hague Convention cases regarding custody rights, access rights, and ne exeat rights.

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Interpreting the Hague Convention On International Child Abduction: Why American Courts Need to Reconcile the Rights of Non-Custodial Parents, the Best Interests of Abducted Children, and the Underlying Objectives of the Hague Convention

I. INTRODUCTION

Child abduction often conjures images of an unknown abductor forcefully snatching a child off the street. In the context of private international law, however, this term refers to the unilateral removal or retention of a child, often by a parent, guardian, or close family member in violation of the other parent's custody rights.1 The parent may abduct the child across international borders for a variety of reasons, including: the desire to exert exclusive possession and control over the child in a new jurisdiction;2 to ensure that the child's best interests are being served;3 or to escape domestic violence.4 The sudden separation of a child from one of his or her parents often gives rise to devastating effects.5 Unfortunately, the frequency of wrongful removal or retention by a parent is not rare or isolated; it occurs with striking frequency throughout the United States and other parts of the world.6 This global problem was not officially recognized until the late 1970s, when the international community drafted the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention) in 1980.7 The Convention serves as the primary civil judicial remedy for international parental abductions of children under the age of sixteen.8 The United States ratified this treaty and enacted the International Child Abduction Remedies Act of 1988 (ICARA)9 to bring the Convention into force.

This Note argues for a uniform, consistent interpretation and treatment of Hague Convention cases regarding custody rights, access rights, and ne exeat rights.10 This Note contends that the recent decision in Fumes v. Reeves11 is a positive attempt to create a uniform meaning of custody rights under the Hague Convention by showing appropriate deference to the existing predominant international interpretation of these rights. Because the Fumes holding may result in unjust outcomes in some factual situations,12 however, this Note also argues that consistency cannot be so rigid that courts fail to reach appropriate substantive outcomes. Specifically, many international abduction cases often involve domestic violence victims who have taken their children to another country to escape their abusers and provide their children with safe and stable environments.13 Compounding this issue is the proliferation of custody orders that include a ne exeat or nonremoval clause.14 These types of clauses permit an abuser to retain power, control, and proximity over his or her victim by withholding consent, thereby preventing the parent and child from relocating.

Part II of this Note will briefly explain the phenomenon of child abduction, the detrimental impact of abduction on the child, and the h...

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