Rachel and Justin got divorced six months ago. They have a beautiful daughter Natalie who is now six. The court granted custody in favor of Rachel and Justin was awarded regular visitation rights. Everything was going on well as per the custody order until Rachel suddenly took up a job in New Zealand and abruptly moved there with Natalie. Rachel did not inform or consult a thing with Justin before taking Natalie to New Zealand and Justin discovered the fact only after they had left the U.S.
Rakesh (from India) and Jennifer (from Texas) married ten years ago. They recently started living separately due to growing differences of opinion. Their only son Ayush (now nine) was living with his mom but spent the weekends with his dad. Last month Rakesh sought Jessika’r permission to take Ayush to India for attending Rakesh’s brother’s wedding. Jessika, hesitant at first, agreed however as Rakesh promised to bring Ayush back in just two weeks. Two weeks passed and after several attempts to establish contacts with Rakesh, Jessika finally came to discover the fact that Rakesh has left the US permanently and has no intention to send back Ayush either. What legal recourse does Jessika have?
The above examples illustrate two classic scenarios of international child abduction by a parent. International Child Abduction is when a parent (who does not have the legal right to do so) removes the child to another country without an applicable defense. Whenever there arises a situation involving international child abduction, the primary means of redress is through the Hague Convention.
The Hague Convention
Because every country in the world has its own legal system, it may often seem hard to bring back an abducted child from a foreign country. This is where the Hague Convention plays a vital role. The convention promotes collaboration among member countries and standardizes the procedure of bringing back a child to his country of habitual residence from those countries.
The Hague Convention was created to provide children with protection against the negative effects of abducting a child across international borders. Note, however, that the Hague Convention aims to facilitate the quick return of children to the country of habitual residence, but not to petition custody of the child. Therefore, if you do not have a prior custody order granting you custody, you won’t be able to use the Hague Convention to make changes to custody. Those issues will be settled only once the child returns to his country of habitual residence.
What Countries are Covered by the Hague Convention?
As of December 2017, 98 countries are parties to the Hague Convention. The U.S.A. ratified the Convention and officially became a member on July 1, 1988. To mention some of the countries that are members to the Convention are Australia, UK, France, Germany, China, Mexico, South Africa, Spain, Switzerland, Sweden, Spain, Luxembourg, Pakistan, Brazil etc. You can see the complete list of countries that are members of the convention here.
It should be borne in mind that the Convention will only apply to abductions that occurred after the country has joined the treaty. If your child was abducted prior to the country joining, The Hague Convention won’t help you.
When is the Removal of a Child to Another Country Considered to be “Wrongful”?
The retention or removal of a child is deemed to be wrongful if:
- The rights of custody given to a person, institution or any other entity was breached according to the law of the country where the child is a habitual resident. Some examples of rights of custody include the right to choose the child’s location of residence, schools, and those that are related to the care and training being provided to the child. These rights are oftentimes specifically described in another/prior Court order.
- You were exercising the rights of custody given to you in a prior order up until the removal or retention occurred.
- A parent relocates the child to another country with no intention of returning (absent consent).
- A parent does not permit the child to return home after taking a vacation in another country (absent consent).
What Type of Child Abduction Cases are Covered by the Hague Convention?
The Hague Convention cannot be applied to all international parental child abduction cases. For you to be able to appeal for the return of a child using the provisions of the Convention, you must be able to prove that:
- The child is a habitual resident of a member country and has been wrongfully removed or retained to another member country. Habitual residence is the place where the day-to-day life of a child has been centered prior to their move.
- The countries involved must already be members by the time the abduction occurred. A country must formally accept the agreement of another country to the Convention before a treaty partnership is developed.
- The child must be less than 16 years old during the time of application to be considered.
A “Member Country” is NOT Obligated to Return a Child in Every Case
According to The Hague Convention, a country may refuse the return of an abducted child if one of the following conditions are met:
- A grave risk exists wherein the child might be subjected to psychological or physical harm, or the child’s return to his/her country of habitual residence may place him/her in an unbearable situation;
- The child refuses to return to his country of habitual residence, and has already reached the age and extent of maturity wherein the court may take his/her opinion(s) into consideration; or
- The return of the child will violate the human rights and freedom of the country where the child is currently retained.
Don’t Be Late, Time is of the Essence.
Submission of a Hague application must be completed immediately after the abduction occurs or after the wrongful retention has occurred or it is not deemed to be timely. If you allow more than a year to pass before you decide to submit a Hague application, the return of your child may become much more difficult and is likely to impact the outcome of your case.
However, the court may still allow the return of the child if it deems it to be appropriate even if the child has already adjusted to his/her new environment and the one-year limit has already been exceeded.
Note: Possession of a custody order before submitting an application is not required.