International parental child abduction Part II: the respondent's case.

• Author: Holz, Rana
• Position: Family Law

When a child is abducted (1) by a parent to the U.S., there is a presumption the child should always be returned to the country of habitual residence once the custodial fights of the leftbehind parent have been demonstrated. The Convention on the Civil Aspects of International Abduction, done at the Hague on 25 Oct. 1980, hereinafter referred to as "the Convention" or "the Hague Convention." (2) There are limited circumstances where the court has discretion to permit the child to remain in the U.S. (3) The exceptions to the mandatory return of a wrongfully removed or retained child denoted in the Hague Convention are:

* When the left-behind parent was not exercising fights of custody or access or consented to the removal or retention, Convention, Art. 13(a);

* If more than one year has elapsed since the removal or retention, the child has become well settled, Convention, Art. 12;

* When the child objects to return, Convention, Art. 13(b);

* If the child would be placed in grave risk of physical or psychological harm or placed in an intolerable situation upon return, Convention, Art. 13(b); or

* If return of the child would not be permitted by fundamental principles of the requested state relating to the protection of human fights and fundamental freedoms. Convention, Art. 20. (4)

Representing the respondent is a difficult task, because even if one or more of these defenses can be shown, a court is not required to invoke them and has discretion to return the child at any time if it will further the objectives of this international treaty. (5)

Application and Construction

The respondent who opposes the return of a child under the grave risk/intolerable situation exception or the human rights and fundamental freedoms exception has a "clear and convincing" burden of proof. (6) The other exceptions may be met by a preponderance of the evidence. (7) As will be explored, the court has discretion to consider evidence regarding a child's interests under the "well settled" or "grave risk" exceptions to the Convention. The Convention and ICARA remain jurisdictional, however, and prohibit U.S. courts from determining underlying custody claims? Federal law also requires the exceptions to be narrowly construed. (9) Were a court to give an overly broad construction to its authority to grant exceptions, it would frustrate a paramount purpose of the Convention--namely to "preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court." Blondin v. Dubois, 189 F. 3d 240, 246 (2d Cir. 1999) (cited as Blondin II). (10)

Although the Convention specifically applies to parties from signatory countries, Convention, Art. 3, the recently publicized Elian Gonzalez (11) case illustrates that a party does not need to be from a member state to seek the return of a child in the U.S. courts? The remedies provided under the Convention and ICARA, are cumulative and not exclusive to other laws or international agreements. (13)

Not Exercising Custody/ Acquiescence or Consent

Part I of this article detailed the petitioner's burden to establish his or her lawful custody rights were being exercised at the time of the child's removal as provided under the law of the child's habitual residence. If the respondent can overcome this proof and show the petitioner was not actually exercising the custody rights at the time of removal or retention, the court is not bound to return the child. Convention Art. 13. (14)

The court is also not bound to return the child if the petitioner had consented to or subsequently acquiesced in the removal or retention. Convention Art. 13. The Convention does not define consent or acquiescence in any more definite manner, nor is there definition or guidance in the text or legislative history of ICARA. (15) "Acquiescence under the Convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing renunciation of rights; or a consistent attitude of acquiescence over a significant period. (16)

In Currier v. Currier, 845 F. Supp. 916, 922 (D.N.H. 1994), even where a father secured an agreement granting him sole custody of the children in the event of separation or divorce, the mother's immediate action to revoke their agreement and to secure custody within the German courts upon the father's flight at separation was sufficient to overcome the argument that consent was tacitly implied.

Having preabduction discussions regarding ultimate relocation to the U.S. is not sufficient to imply consent, nor is allowing the children to attend school during efforts to secure their return. Pesin v. Osorio Rodriquez, 77 F. Supp.2d 1277 (S.D. Fla. 1999). The failure to exercise a ,provision afforded by a Hong Kong court to prevent the passport division from issuing the child a passport without consent was not sufficient to prove acquiescence in Croll v. Croll, 66 F. Supp. 2d 554 (S.D.N.Y. 1999), which also held that prior discussions of moving to the U.S. is not consent. Sending support payments or gifts is not sufficient to acquiesce, nor is engaging in reconciliation efforts. (17) Even if a parent is initially given the ability to travel with the child to the U.S. or stay for a brief period of time, the retention becomes wrongful after the left-behind parent takes action to secure return? In Gonzalez-Caballero v. Mena, 251 F. 3d 789 (9th Cir. 2001), however, in addition to other facts, where the left-behind parent gave the moving parent the legal documents necessary for the child to immigrate to the U.S. and indicated his willingness to facilitate immigration through his resident-alien sister, consent was found. (19)

Well Settled

The prerequisite for asserting the well-settled defense is that one year must have passed from the date of wrongful removal or retention. Convention, Art. 12. The one-year timeframe is not a statute of limitations. The Convention still mandates return of a child when the proceedings have been commenced after a period of one year has elapsed, unless it is demonstrated that the child is now settled in its new environment.

The dynamics of international employment and travel can give rise to a fact-intensive determination as to the date the removal or retention became wrongful? There's authority, however, to support an equitable tolling of the one-year period...