The Hague Convention on the Civil Aspects of International Child Abduction provides an expeditious method to return a child internationally abducted from one parent by another between two countries that are member nations. Proceedings on the Convention take place in an expedited manner and can be held in state or federal court. The Convention only applies to children under the age of 16 who have been removed or retained from their country of habitual residence. The Treaty also applies to countries that are signatories the Treaty. To see if the country your child was taken to is a signatory to the Treaty, see an updated list of countries at www.travel.state.gov.
Before initiating a civil court action regarding the wrongful removal or retention of a child under the age of 16 in state or federal court, the first step is to file a Hague Application with the Central Authority of the United States (the State Department) or the central authority of the country where the child has been abducted if the country is a signatory to the Hague Convention.
The Hague Application is available from the U.S. Department of State, Office of Children’s Issues, online at www.travel.state.gov. along with filing instructions. The U.S. Central Authority reviews Hague applications and forwards them to the foreign central authority. The central authorities act as facilitators and not act as legal representatives for either party. You may need legal counsel to assist you in preparing your Hague Application. You will then need to file an actual action in the court system where your child is taken. Typically, counsel is retained in the country where the child is taken to assist in the procedures of obtaining the successful return of the child.
Initiating Court Intervention if Your Child is Abducted
The initial burden is on the Left-Behind Parent to establish by a preponderance of the evidence that the child was wrongfully removed or retained. To establish wrongful removal and retention, the Left- Behind Parent must show that the child under the age of 16 was a habitual resident of the treaty country immediately before the breach of his/her custody rights and that the custody rights were actually exercised, either jointly or alone or would have been exercised if not for the wrongful removal and retention. If the Left-Behind parent meets this burden, the Removing Parent may establish an exception to the return of the child available under the Hague Convention.
Removing Parent’s Burden for Denying Hague Petition
The Hague Convention provides limited exceptions for not returning a child to the country of habitual residence:
1. The Left-Behind parent was not actually exercising custody rights at the time of the removal or retention or has consented to or subsequently acquiesced in the removal or retention.
2. More than a year has elapsed and the child is now settled in the new environment.
When determining whether a child is “well-settled” in his/her new environment, the court may consider any relevant factor including: (1) the age of the child; (2) stability of the child’s new residence; (3) whether the child attends school or daycare consistently; (4) whether the child attends church regularly; (5) stability of the parent’s employment or other means of support; (6) whether the child has friends and relatives in the area; and (7) to what extent the child has maintained ties to the country of habitual residence.
3. A sufficiently mature child objects to being returned.
No specific age has become the norm to accept the child’s testimony. Instead the maturity of the child has been determined by the trier-of-fact in a case-by-case basis.
4. There is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable.
5. The child’s return would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.