The expanding role of expert psychological evaluations and testimony in Hague child abduction litigation

• Published date: 01 January 2023
• Author: Alberto Yohananoff,Richard Min
• Date: 01 January 2023
• DOI: http://doi.org/10.1111/fcre.12689

ARTICLE

The expanding role of expert psychological

evaluations and testimony in Hague child

abduction litigation

Alberto Yohananoff | Richard Min

NYC Forensics, New York, NY, USA

Correspondence

Alberto Yohananoff, NYC Forensics, 19 West

34th St, New York NY 10001.

Email: dryohananoff@nycforensics.com

Abstract

Hague Convention cases are a growing niche in forensic

assessments. These cases focus on returning children, or

preventing their return, after international abductions, by

one of the parents, has occurred. This article focuses on the

legal underpinnings of the Hague Abduction Convention,

the “affirmative defenses”that may be invoked to prevent

a return order, including “grave risk of harm,”“mature

objection”, and the “well settled defense.”The article will

also focus on the increasing roles that forensic evaluators

play in these matters, the distinction between the role of

forensic experts in custody proceedings and Hague cases,

and the inherent limitations present in these unique kinds

of evaluations.

KEYWORDS

abductions, ameliorative measures, child custody, grave risk of

harm, Hague convention, high conflict divorce, mature objection,

well settled defense

Key points

•Pursuant to the Hague Abduction Convention, children

are required to be returned to their country of habitual

residence, determined generally by the intentions of their

parents and their acclimatization to their environment.

•There are, however, several exceptions to the return

requirement, including grave risk of harm, the mature

objection, and the well-settled defense.

DOI: 10.1111/fcre.12689

© 2022 Association of Family and Conciliation Courts.

Family Court Rev. 2023;61:157–174. wileyonlinelibrary.com/journal/fcre 157

•If a child would face a grave risk of physical or psycho-

logical harm if returned, then a return is not required.

•If a child is sufficiently mature and objects to returning,

then a return is not required.

•If a lawsuit is not filed within 1 year of the abduction and

the child is well-settled in the new country, then a return

is not required.

•Forensic evaluations are increasingly a crucial compo-

nent in Hague Abduction litigation and its differences to

general child custody evaluations are notable.

OVERVIEW

The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”or “Convention”)

was implemented in the United States by Congress on July 1, 1988 pursuant to federal statute, namely the Interna-

tional Child Abduction Remedies Act (“ICARA”)

1

“in response to the problem of international child abductions during

domestic disputes.”

2

Its purpose 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 resi-

dence…”

3

Although the central operating feature of the Convention and ICARA is the return remedy,

4

“[t]he Hague

Conventionis neither an extradition treatynor can its provisions adjudicatethe merits of a custody dispute;it is simply

a civil remedy enactedto preserve the status quo by returningchildren to the country of their ‘habitualresidence’…”

5

To establish a prima facie case under the Hague Convention, the left-behind parent bringing suit for the return

of his/her child(ren) (“petitioner”) must establish by a preponderance of the evidence that “(1) the child was habitu-

ally residing in one State and has been removed to or retained in a different State; (2) the removal or retention was

in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner

was exercising those rights at the time of the removal or retention.”

6

Though these issues can be quite complex, especially concerning habitual reside nce, court precedent and

scholarly legal analysis has guided us in simplifying and defining them as follows: (1) habitual residence is gener-

ally defined by where a child was at home at the time of the abduction, which is usually established through the

intent of the parties to raise a child in a particular country for the foreseeable future,

7

or by demonstrating the

child's life was sufficiently integrated in a particular country

8

; (2) rights of custody (including the right to deter-

mine where the child is to reside) which can be demonstrated by foreign law, by court order, or by agreement

between the parties

9

; and (3) exercising custody rights which can easily be established by any attempts at paren-

tal contact with the child or basically so long as there has been no clear abandonment of the c hild.

10

Assuming that the petitioner is able to make a prima facie case, the burden then shifts to the respondent, the

alleged “abducting parent,”to establish one of the five narrow exceptions (or affirmative defenses) available in the

Hague Convention.

11

The five affirmative defenses available to the respondent pursuant to the Convention are as

follows: (1) the”well-settled”exception in Article 12, which states that, if the petition was not filed within 1 year

after the abduction, and the child is so well-settled in the United States that their return would be harmful to the

child; (2) the “mature child exception”in Article 13, which states that if the child does not wish to return to their

country of habitual residence and is sufficiently mature to express their opinion, the court may refuse the child's

return; (3) the “consent and acquiescence”exception in Article 13(a), which states that the petitioner agreed to the

child's relocation to the United States; (4) the “grave risk of harm”exception in Article 13(b), which states that the

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