"Settled" Law, 1116 SCBJ, SC Lawyer, November 2016, #22
| Author | Kevin Eberle, J. |
The Fourth Circuit Interprets the Settled Child Defense
Kevin Eberle, J.
South Carolina has long been a popular destination for international visitors, but the state is now experiencing an explosion in the number of arrivals—both legal and not—who intend to make the Palmetto State their permanent home. According to the United States Census Bureau, the percentage of foreign-born residents in South Carolina nearly quadrupled from 1.4 percent in 1990 to 4.8 percent in 2013. Some have come as employees of the many international businesses. Others, however, have arrived unlawfully, often as part of the seasonal agricultural workforce. The Pew Hispanic Center estimates that undocumented immigrants comprised roughly 2 percent of the state’s population in 2012.
As the number of families arriving from foreign countries increases (legally or not), so too does the likelihood that a South Carolina lawyer will need to be familiar with the International Child Abduction Remedies Act (ICARA).1 Despite an intimidating name that suggests a criminal subject matter, the law is, at its heart, a civil statute meant to very quickly resolve one of the most critical issues in international custody disputes: the choice of a forum.
The Hague Convention
The drafters of the Hague Convention,2 which the ICARA codifies, were concerned with securing international cooperation regarding returning children taken by a parent from one country to another in search of a more sympathetic court.3 The drafters finished their work at the Hague in 1980, and the United States joined as a signatory in 1981. In 1988, the United States Congress ratified the Hague Convention and enacted the ICARA to put the terms of the Hague Convention into effect.
The simple command of the Act is that judges should, without considering the merits of the underlying domestic dispute, repatriate children who have been brought to the United States from their countries of “habitual residence” in violation of one parent’s custody rights, typically by removing the child without consent.4 Proceedings are not custody fights, and a court’s order about the placement of a child does not affect the parents’ underlying rights. Lawyers should not base their arguments on the familiar “best interests” of the child; the child’s best interests are served, say the courts, when those interests are decided by the court system of the child’s home country. Indeed, Article 16 of the Hague Convention very specifically states that the underlying merits may not be decided until after venue is set, and there are no instances of circuit courts disagreeing with that prohibition. Rather, the only inquiry is whether the convention requires the return of the child to an earlier residence.[5]
The process for seeking the return of one’s child is, at least on paper, easy. First, the foreign parent contacts his or her own country’s “Central Authority,” the term for the office that each signatory must designate to administer Hague Convention claims.6 The Central Agency helps complete an application for repatriation, which is delivered to the State Department, which then attempts to locate the abducted child.
Once the child has been located, the left behind parent can begin an action in either state or federal court by filing a petition that generally follows the format for other filings.7 Even if the parents are communicating with each other and attempting to resolve their disputes, the left behind parent must still pursue the matter in court. If, and only if, a parent does not begin the action within one year of the abduction, the delay— justifiable or not—opens the door to an additional issue known as the “settled child” defense. The Supreme Court has unanimously ruled that there is no equitable tolling of the one-year period, and left behind parents may not rely even on the concealment of their children as an excuse for not promptly initiating a case.8
A trial will be scheduled if necessary, and the court may choose to interview the child in chambers as part of the fact finding. The petitioning parent must establish that he or she was exercising custody rights when the child was removed from the child’s country of habitual residence in violation of local law of the petitioning parent. South Carolina lawyers should note that “habitual residence” is not defined by either the Hague Convention itself or ICARA and must be determined based on case law and other sources...
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