Provisionally permanent? Keeping temporary custody orders temporary under the Hague Convention on International Child Abduction.

• Author: Di Guglielmo, Christine T.

INTRODUCTION

In 1980, the Hague Conference on Private International Law (1) created the Hague Convention on the Civil Aspects of International Child Abduction (2) (Convention) as an attempt to supply parents with a legal tool to assist them in achieving the return of children removed across international boundaries without consent of the left-behind parents. (3) The Convention has been in force in the United States for more than thirteen years, (4) and a significant body of foreign and domestic case law interpreting its provisions has developed. While courts have begun working toward consistent interpretations of the fundamental provisions of the Convention, (5) and have worked diligently to apply these interpretations to the complex factual, legal, and emotional situations that arise in the context of the removal of a child across international boundaries, areas for improvement remain.

When custody proceedings are started, but not completed, prior to the inteRNational abduction of a child, the custody issues become particularly complex. One issue is how an interim decision issued by a foreign tribunal prior to the child's removal should affect a court's decision on a petition for return under the Convention. (6) In this Comment, I argue that U.S. courts should adopt an approach that respects the temporary character of an interim order rather than automatically recognizing the terms of the order at face value. Courts should rarely interpret interim custody orders as altering the parties' custody rights under the Convention. Rather than accept interim decisions at face value, courts should consider the legal and factual realities of the family members prior to entry of the interim order. This approach is consistent with the broad purpose and scope of the Convention as well as its goal of ensuring that an abducted child is promptly returned to the country best situated to decide the child's future--the country where he or she lived prior to the abduction.

U.S. courts have been entrusted by Congress to decide petitions brought pursuant to the Convention fairly, expeditiously, and in keeping with the Convention's broad design, despite the challenges the cases present. Understanding the broad scope of the custody rights protected by the Convention is often the first challenge facing a court asked to decide a Convention petition. I suggest that the scope of the Convention extends, under most circumstances, to protect those rights held by a left-behind parent prior to international removal of his or her child and not yet terminated by a final decision of a court with jurisdiction over that parent's custody rights.

Part I of this Comment provides an overview of the Convention's purposes, provisions, and scope. In Part II, I introduce a recent Colorado case in which the parties disputed the effect of a German court's interim order on their custody rights with respect to their daughter. In Part III, I argue that interim custody decisions should not alter parties' custody rights for purposes of a subsequent petition for return under the Convention. In Part IV, I apply that analysis to the provisions of the interim order at issue in the Colorado case and conclude that the specific provisions of that order should not have altered the approach taken in that case from the approach proposed in Part III.

1. THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION: BACKGROUND, PURPOSES, AND SCOPE

   The Fourteenth Session of the Hague Conference on Private International Law adopted the Hague Convention on the Civil Aspects of International Child Abduction on October 24, 1980, and opened the Convention for signature on October 25, 1980. (7) The United States signed the Convention on December 23, 1981. (8) Congressional adoption of the International Child Abduction Remedies Act (ICARA) (9) in 1988 implemented the Convention in the United States.

   The Convention requires prompt return of any child under the age of sixteen who has been wrongfully removed from his or her country of habitual residence. (10) If a petitioner successfully proves that the child was wrongfully removed from his or her place of habitual residence, a respondent may prevent the return only by proving one of the exceptions set forth in the Convention. (11) This Part will first provide an overview of the purposes of the Convention and then will outline the scope of the remedies and exceptions established therein.

   1. Objectives

      The Convention includes two explicit objectives: "to secure the prompt return of children wrongfully removed to or retained in any Contracting State" and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." (12) Several purposes motivated both the creation of the Convention and its implementation in the United States. It was intended primarily to protect children from the harmful effects of international child abduction. (13) Scholars and legislators saw international cooperation as the most effective method of combating the increasing number of international abductions. (14) The Convention was also intended to serve as a deterrent to international child abductions, (15) to prevent alterations to custodial rights as the result of unilateral action by individuals, (16) and to prevent "forum-shopping" (17) in custody disputes. It does not serve to create or enforce a custody decision; in fact, authorities in the country to which the child has been removed are expressly prohibited from deciding the merits of a custody dispute unless they first determine that the child is not required to be returned under the Convention. (18)

   2. Removal and Rights of Custody

      When a child has been wrongfully removed from his or her habitual residence less than one year prior to the commencement of an action under the Convention, a court "shall order the return of the child forthwith." (19) Removal is "wrongful" if (1) "in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal"; and (2) "at the time of removal ... those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." (20) Thus, a petitioner must demonstrate that the respondent breached custody rights that were both in existence and actually exercised prior to the removal. ICARA places the burden of proving wrongful removal on the person seeking return of the child. (21)

      In addition to the availability of the remedy of return for a removal in breach of custody rights, the Convention provides some protection for a parent's rights of access to his or her child. (22) Article 21 requires signatory nations "to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject"; in order to fulfill this mission, signatories must "take steps to remove, as far as possible, all obstacles to the exercise of such rights." (23) The protection afforded to access rights is significantly more limited than that given to custody rights. (24)

      The Convention provides limited guidance by virtue of a brief, nonexhaustive definition regarding "rights of custody." In Article 5, "rights of custody" are defined as "includ[ing] rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." (25) Rights of custody protected by the Convention "may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of" the state of habitual residence--it is not necessary that custody rights were defined by judicial decree prior to removal. (26)

      Much of the litigation concerning the "rights of custody" prong has focused on interpretation of the custody law of the state of habitual residence and on the application of that law to the particular factual situation before the court. (27) The parties often lack a formal custody determination prior to removal, (28) in which case the court must determine the scope of ex lege custody rights under the law of the state of habitual residence. (29) When one party seeks the remedy of return, the court must consider the distinction between custody rights and access rights, since the return remedy is only available following a breach of custody rights. (30) Where an interim custody order has been issued by the state of habitual residence, foreign courts have sometimes looked to that order to determine the respective rights of the parties. An interim order might describe the various responsibilities and rights of the parties in factual terms, rather than by using terms of art of the custody law of the state of habitual residence or following the Convention's use of the terms "custody" and "access." (31) This has created problems for courts determining where the line between "rights of custody" and "rights of access" lies for Convention purposes--the definitions provided in the Convention text are not exhaustive, and predicting how a foreign jurisdiction's custody law would treat a particular factual situation may be difficult. (32) The scope of custody rights protected by the Convention will be discussed in greater detail in Part III, which analyzes the proper interpretation of custody rights with respect to interim orders issued prior to a removal incident.

      In order to obtain the return remedy, the left-behind parent must have possessed custody rights and must have been exercising them prior to the removal. (33) Determination of whether custody rights were actually exercised prior to the removal usually involves close consideration of the factual situation of the parties and child as it existed prior to the removal. (34) In Friedrich v. Friedrich, (35) the...