The Hague Convention on the Civil Aspects of International Child Abduction
| Publication year | 2012 |
| Pages | 25 |
2012, April, Pg. 25. The Hague Convention on the Civil Aspects of International Child Abduction
April 2012
Vol. 41, No. 4 [Page25]
The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.
Coordinating Editor
Timothy Reynolds, Boulder, of Holme Roberts and Owen, LLP-(303) 417-8510, timothy.reynolds@hro.com
About the Authors
Chris Brady is an associate with Husch Blackwell LLP, where he focuses his practice on business litigation, labor and employment law, and securities industry regulation and litigation-chris.brady@huschblackwell.com. David Steefel is a partner with Husch Blackwell LLP, where he focuses his practice on complex commercial litigation-david.steefel@huschblackwell.com.
The Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act provide a judicial remedy enabling a parent to obtain return of a minor child who has been abducted or wrongfully retained by the other parent outside the child's country of habitual residence. This article discusses the elements for establishing and defending a claim under the Convention and the Act, as well as various procedural aspects of such a claim and practical guidance for attorneys undertaking their first Hague Convention case.
A father refuses to return his three children to their mother in Canada after the children complete a prearranged visit with the father in the United States.(fn1) A military family living in Germany for eight years receives orders to relocate to the United States; the parents' relationship deteriorates and a divorce is initiated; and the father takes the children from the mother to live with him in the United States without her consent.(fn2) A mother flees her husband, taking the couple's minor child with her to the United States, claiming she was the subject of spousal abuse.(fn3) Each of these situations is an example of the circumstances that may trigger a party's rights under the Hague Convention on the Civil Aspects of International Child Abduction (Convention).(fn4)
The Convention is a multilateral treaty adopted to ensure the prompt return of minor children under the age of 16 who have been abducted from or wrongfully retained outside their country of habitual residence.(fn5) The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention, thereby deterring a parent from crossing international boundaries in search of a more sympathetic court.(fn6) The Convention strikes a careful balance, providing limited exceptions to the return of wrongfully removed children but not allowing courts to make determinations in underlying custody disputes.
The United States formally established procedures to implement the Convention in 1988 through the International Child Abduction Remedies Act (ICARA).(fn7) ICARA grants federal and state courts concurrent original jurisdiction over actions arising under the Convention, and provides expedited judicial procedures to determine claims in the district where the minor child is located.(fn8)
This article provides an overview of the legal issues facing practitioners working on matters governed by the Convention and ICARA, including the elements of a claim under the Convention, as well as potential defenses. It also discusses procedural and practical issues surrounding Convention and ICARA claims, as well as useful resources for attorneys embarking on their first case under the Convention.
The Scope and History of the Convention
The purpose of the Convention and ICARA is:
to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.(fn9)
The Convention recognizes that different countries have unique approaches to familial and custodial disputes, and that the judiciary in the country of the minor's residence should and must be trusted to deal with important issues such as custody. To allow otherwise would encourage parental abductions to a perceived more favorable forum and undermine the Convention. Thus, the role of the court under the Convention and ICARA is only to determine whether a child has been wrongfully removed and, if so, to order the child's return to his or her country of habitual residence.(fn10) A court exercising jurisdiction under ICARA does not have the authority to decide any underlying custody disputes.(fn11)
The Convention stemmed from a proposal first advanced at the Hague Conference Special Committee meeting in 1976 that the Conference prepare a treaty responding to the growing global problem of international child abduction.(fn12) The overriding objective of the treaty was to spare children the detrimental emotional effects associated with transnational parental kidnapping.(fn13) Proceedings on the Convention concluded on October 25, 1980 and the Convention entered into force for the signatory nations on December 1, 1983.(fn14) As of September 2011, eighty-six nations are party to the Convention.(fn15)
Proving a Claim Under the Convention
Because of a court's limited jurisdiction under ICARA, a petitioner's primary focus should be proving wrongful removal under the Convention. The petitioner bears the burden of showing by a preponderance of the evidence that the removal or retention was wrongful.(fn16) The petitioner must show that: (1) the child was habitually resident in a given state at the time of the removal or retention; (2) the removal or retention was in breach of the petitioner's custody rights under the laws of that state; and (3) the petitioner was exercising those rights at the time of removal or retention.(fn17) Each of these elements is discussed further below.
A petitioner also must show that the child is under the age of 16,(fn18) and that the country from which the child was wrongfully removed is a signatory to the Convention. If a child is removed from a non-signatory country, no relief is available under the Convention.
Habitual Residence
The term "habitual residence" is not defined by the Convention or ICARA. In light of the Convention's silence, courts have declined to provide a definitive set of factors to determine habitual residence. Instead, courts have held that a child's habitual residence is best determined by examining specific facts and circumstances.(fn19)
In determining the child's habitual residence, factors outside the child's living arrangements may be relevant. The conduct, intentions, and agreements of the parents during the time preceding the abduction are important factors to be considered.(fn20)
Proving habitual residence usually is a simple exercise. In cases involving recent family moves or temporary moves cast by respondent as permanent, the determination of habitual residence may be more difficult. In such situations, courts also may look for a degree of settled purpose in determining habitual residence.(fn21) The Tenth Circuit has stated that all that is necessary to show settled purpose is that "the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."(fn22) Education, business or profession, employment, health, family, or love of the place are additional factors courts have considered in looking for a degree of settled purpose.(fn23)
Breach of Petitioner's Custody Rights
The second factor in proving wrongful removal requires a petitioner to show that the child's removal breached the petitioner's custody rights. "Custody rights" are defined by the Convention as "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence."(fn24) The petitioner's custody rights are determined by the law of the country where the child was habitually resident.(fn25) Custody rights granted by courts of the country to which a child is wrongfully removed are not relevant under the Convention.(fn26)
Generally, biological parents exercise primary custody rights as the primary caregiver for the child. Grandparents and foster parents may exercise custody rights when they have assumed responsibility for primary caregiving.(fn27) Although courts have interpreted custody rights broadly, they have been hesitant to allow custody rights to extend to institutional entities,(fn28) but there are theoretical entities, such as a foster center or an orphanage, that could be deemed to have rights under the Convention.
Courts distinguish between rights of custody and rights of access. Rights of custody provide a right under the Convention, while rights of access alone do not provide rights under the Convention. The distinction is based on the notion of rights of custody and rights of access as identified in Article 5 of the Convention.
The U.S. Supreme Court recently expanded what rights would serve as a "right of custody" in Abbott v. Abbott.(fn29) In Abbott, the Court ruled that a father's ne exeat(fn30) right to consent before the mother could remove the child from Chile, granted by the Chilean family court, was a right of custody, and that the father could seek return of the child to Chile after the mother's wrongful removal.(fn31) The Court reasoned that the Chilean court granted the father direct and regular visitation rights, which automatically gave him joint rights to decide his child's country of residence under Chilean law.(fn32) Because the Convention defined "right of custody" to include the right to...
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