Demystifying International Child Abduction Claims Under the Hague Convention, 0113 SCBJ, SC Lawyer, March 2013, #5

• Author: Reid T. Sherard

Demystifying International Child Abduction Claims Under the Hague Convention

2013 #5

South Carolina Bar Journal

March 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Reid T. Sherard

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Child custody cases are difficult, and can be made much worse by an international jurisdiction dispute. As South Carolina's population increases—the last census reflected more than 15 percent growth since 2000, ranking in the top 10 of all states¹ — the likelihood of an international child custody dispute coming in the door increases for the average South Carolina lawyer. All lawyers who accept child custody cases can improve their practices with a working knowledge of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 (Convention), which treaty seeks the prompt return of children wrongfully removed to or retained in any Contracting State.²

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Q. What is the first consideration?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A. Confirm the Convention applies.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Both the "removed from" and "removed to" countries must be Contracting States, so verifying the Convention applies is a crucial first step. The United States of America is a Contracting State, as are numerous other familiar countries such as Canada, Mexico, Brazil, the United Kingdom, Italy, Israel, Australia, France and Germany³ Next, ensure the child is not too old, as "the Convention shall cease to apply when the child attains the age of sixteen years."⁴

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Q. The Convention does not apply; are there other options?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A. Possibly.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Uniform Child Custody Jurisdiction and Enforcement Act, S.C. Code § 63-15-300 et seq., may provide relief.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Q. Will the government provide assistance?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A. Yes, in certain areas.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The United States Central Authority⁵ can assist with both incoming and outgoing abduction cases (those where the child has been removed to or retained in a foreign country and the Convention litigation will take place in that country). For incoming cases, services include processing of an application for return submitted to a foreign country's central authority, assistance with locating the child and seeking a voluntary return.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Q. Voluntary return is not an option, both countries are Contracting States and the child is under 16. What is the next litigation step?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A. Consider the implementing authority and its limitation.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The International Child Abduction Remedies Act (ICARA) implements the Convention and empowers courts to determine "only rights under the Convention and not the merits of any underlying child custody claims."⁶ Stated another way, the court handling a matter filed under ICARA is solely to determine the jurisdiction in which custody will be adjudicated—the matter of custody itself is left for another day⁷

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Q. Federal court or family court?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A. Either. Though ICARA is a federal statute, there is no requirement the case be filed in federal court, just as there is no requirement of removal to the federal court if filed in the family court. In fact, "[t]he courts of the States and the United States district courts shall have concurrent original jurisdiction of the actions arising under the Convention."⁸ Choice of court is a strategic decision.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Q. What are the elements of a prima facie case, and what is the evidentiary standard?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A. A petitioner must prove by a preponderance of the evidence that the child has been either wrongfully removed to this country or wrongfully retained in this country, within the meaning of the Convention.⁹

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Specifically, a petitioner must prove: (1) the child was "habitually resident" in "petitioner's country of residence" at the time he/she was wrongfully removed or retained; (2) the removal or retention was in breach of the petitioner's custody rights under the law of the petitioner's "home state"; and (3) the petitioner had been exercising those rights at the time of the retention.¹⁰

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Q. What does "habitual residence" mean?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A. Habitual residence is a case-by-case determination.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0"The framers of the Convention intentionally left 'habitual residence' undefined, and intended that the term be defined by the unique facts in each case."¹¹ Because "[a] person can have only one habitual residence, "¹² federal courts have adopted a two-part framework to assist in the highly fact-specific analysis.¹³

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA01. Shared parental intent The key question is "[w]hether the parents shared a settled intention to abandon the former country of residence."¹⁴ There are four categories of cases:

i. The family as a unit has manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move,

ii. The children's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period,

iii. In between cases where the petitioning parent had earlier consented to let the child stay abroad for some period of ambiguous duration,

iv One parent intended to move to the new country of residence on a trial or conditional basis.¹⁵

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In a dispute over habitual residence, "the representations of the parties cannot be accepted at face value, and courts must determine [habitual residence] from all avail-able evidence."¹⁶ Courts have considered the following factors as evidence of parental intent: parental employment in the new country of residence; the purchase of a new home in the new country and the sale of a home in the former country; marital stability; the retention of close ties to the former country; the storage and shipment of family possessions; the citizenship status of the parents and the children; and the stability of the home environment in the new country of residence.¹⁷

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA02. Acclimatization

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Once parental intent has been considered, the next determination is the extent of the child's acclimatization to the new country. Requirements include "an 'actual change in geography' coupled with the 'passage of an appreciable period of time, one sufficient for the acclimatization by the children to the new environment.'"¹⁸ "The question here 'is not simply whether the child's life in the new country shows some minimal degree of settled purpose' but whether the 'child's relative attachments to the countries h ave changed to the point where [ordering the child's return] would now be tantamount to taking the child out of the family and social environment in which its life has developed.'"¹⁹ School enrollment, participation in social activities, the length of stay in the relative countries and the child's age have all been considered as evidence of acclimatization.²⁰ "Happiness" is not the standard, ²¹ and the above factors may be more difficult to apply if the family is of considerable means.²²

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Q. What's next after proving habitual residence?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A. Showing the petitioner had rights of custody and was exercising those rights at the time of the removal or retention.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA01. Rights of custody

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The next prong is whether the petitioner had rights of custody to the child, ²³ defined 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."²⁴ These rights may arise "by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect ..."^[25]A court may take notice of the law of a foreign country, ²⁶ and if the law of the foreign country vests both parents with joint custody until a competent court enters a contrary order, this prong is satisfied.²⁷

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA02. Exercising custody rights

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Simply having custody rights is not enough; the rights must be exercised. On the other hand, "exercising" is sufficient, as the quality of the interaction is not the issue.²⁸ A parent having valid custody rights under the law of the country of the child's habitual residence cannot fail to...