International Custody Jurisdiction and The Hague Convention
If you have a custody matter which involves another country outside of the United States, you will have to navigate a legal quagmire of difficult and competing issues. To begin with, you need to know where you stand in each country and what the laws are. It is hard to know where to start. There is an international treaty known as the “Hague Convention” which is a starting place to determine broad custody issues.
1. What Does the Hague Convention Do?
The United States has signed some portions of Hague Convention but not others. While the US is a signatory to “Civil Aspects of International Child Abduction” and to the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters “ it has not signed other portions of the Hague Convention. To add to this confusion, most courts refer to the pieces of the convention which do apply as the “Hague Convention” and it is important to understand which portion of the treaty is being asserted.
The Hague Convention sets out procedures for resolving jurisdictional dilemmas in custody disputes involving more than one country. As with all treaties, it is valid only between those countries which have signed the treaty. Many countries have not signed. In dealing with an international custody dispute the first step is to ascertain if the other country is a signatory to the Hague Convention. The easiest way to make this determination is to either call the State Department, or call your senator or congressional representative and ask the constituent services department for the information. While you can also try reading the Hague Convention and then seeing which parts have been implemented in the United States, the document is large and not organized in such a way as to allow a person to find all pertinent information in one place.
The Hague Convention regarding child abduction was promulgated to promote international cooperation among countries in order to secure the prompt return of children wrongfully taken out of their jurisdictions. The Hague Convention was adopted on October 25, 1980. On April 28, 1988, the United States implemented the Hague Convention via the enactment of the International Child Abduction Remedies Act.
Signatories to the Hague Convention, or contracting states, agree to participate in the return of a child to his or her country of habitual residence when the child is wrongfully removed or retained in another country. “The underlying principle of the Hague Convention is to secure a swift return of the abducted child to the country in which the child was a habitual resident without undertaking a full investigation of the merits of the abductor’s case.” It is irrelevant whether or not a child custody determination has been made in a particular case. The role of judicial authorities is simply to “promptly restore the factual situation that existed prior to a child’s removal or retention.”
One of the goals of the Hague Convention is to avoid assimilation of a child into a strange environment which could lead to subsequent separation difficulties. If a child is not returned to the place of habitual residence after he or she has been removed or retained in another country for a year or greater, judicial authorities are only required to return the child if the child has not settled in his or her new environment. “If the proceeding was initiated within one year of the child’s abduction, judicial authorities within the Contracting State are required to return the child “forthwith.” Thus, it is important that the petitioner, or non-abducting parent, institute proceedings immediately following the child’s abduction from the habitual residence. The child’s departure need not have been unlawful at its inception. A child retained after regularly scheduled or agreed upon visitation or refused to be allowed to return after a family vacation would be included in the act’s purview.
A contracting state will not be required to return a child to his or her habitual residence in all cases. In addition to the above result after a child has remained in the removal or retained country greater than one year, the Hague Convention recognizes several exceptions to requiring the return of a child to his or her habitual residence.
A contracting state is not required to return a child to his or her country of habitual residence if:
- the petitioner had no right of custody or access at the time of the removal or retention;
- the petitioner acquiesced to the removal or retention;
- the petitioner failed to exercise his or her right of custody;
- a “grave risk” of harm to the child would result from the return of the child to the state of habitual residence or the child would be placed “in an intolerable situation”;
- the child is settled in a new environment;
- return “would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms;” or
- the child is of the appropriate age and maturity and objects to the return.
When examining the exceptions to mandatory return of a child to his or her habitual residence, one must also consider the following:
- The Hague Convention did not define habitual residence. It is a question of fact, and differs in that respect from domicile.
- Rights of custody include rights relating to the care of the person of the child, and in particular, the right to determine the child’s place of residence.
- Agreements between parties about custody which have legal effect in the state of habitual residence also form a source of custody rights under the Convention.
- When considering whether custody rights are actually exercised, a parent who places a child in another’s care for a short period of time will still be considered to be exercising custodial rights.
- The Hague Convention ceases to apply when a child attains the age of 16 years old.
2. How Do You Start a Case Involving the Hague Convention?
Each contracting state must set forth the creation of a Central Authority to facilitate the parental abduction proceeding. “The Central Authority is responsible for various receiving and outgoing duties.” The incoming request duties include locating an abducted child, instituting proceedings to effect a return, assisting administrative technicalities of a safe return, providing information concerning the laws of a state or background of a child in conjunction with an application, providing legal assistance and counsel, and endeavoring to amicably resolve a kidnaping situation. Central Authorities also have responsibilities in outgoing applications, applications seeking the return of children who have been taken to one of the contracting states. An application may be submitted either to the Central Authority of the child’s habitual residence, or with the Central Authority of any other contracting state. Nevertheless, the use of a Central Authority is optional; a party may bypass these authorities by bringing an action on their own behalf.
3. What Is the Best Way to Proceed?
If you are a United States citizen residing in the United States, you should retain the services of a family law attorney in the state in which you reside. You should ask that attorney to speak with and in many cases retain the services of a family law attorney in the country where the child is presently located. One way to learn about the law in the retaining country is through contact with the United States State Department or by contacting the consulate services of the United States in the retaining country and asking for information on child custody and child abduction matters.
A small list of some of the difficulties in beginning a process in a foreign country include:
- The law of the retaining country is different. Our system of law has its roots in English Common Law, but has had over 200 years of forming its own legal bases. Our law builds on cases which have previously been decided and as such, we can rely on past decisions in deciding present issues. Some countries have purely statutory law and no case law at all. It is the right and responsibility of a court in such a jurisdiction to interpret and enforce the statues as written, but the interpretation of the law can vary from place to place within the country. Some countries have a system of courts which have a statute or procedure on the books and a different way of actually performing judicial duties. Because there are huge differences between countries, it is important to retain local counsel who can help you understand the system and represent you and your rights.
- The culture is different. Some actions or results which would be common in a state of the United States may be unusual or disallowed in another country and vice versa. Even before you reach a court of law, families and general social norms in other countries are not the same and it is not reasonable to impress your values and mores on the other forum nor to expect that their laws or social norms would be followed in our courts.
- It takes an inordinately long time for legal matters to actually reach court. While the Hague Convention tries to set out an expedited process, many times it will take well over a year to reach court.
- All legal documents served in another country must comply with the rules set out in the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters “ . Generally, these requirements include serving documents from Court A in County B to or from Court C in Country D. These documents must be certified, then they often need an apostille affixed to them. They must be translated into the language in which legal matters are handled. Often the document then needs to be served first on the Central Authority and then on the opposing party. If a party moves from one part of the country to another, it may require the process to begin again. These same requirements face the opposing party in serving documents on a court or person within the United States.
4. What If The Country Where My Child Is Now Retained Has Not Signed the Hague Convention?
If a child is abducted to a country who is not a signatory to the Hague Abduction Convention, the non-abducting parent can seek legal remedies against the abductor from both the civil and criminal justice systems in that country through treaty law. Often times a non-signatory country will still use the terms of the Hague Convention in determining whether a child should be returned. However, since there is no agreed upon standard for return of a child, the court of the retaining country will apply its own law to the situation which may or may not be similar to the Hague Convention or to the laws of the United States. In some countries there is no requirement that a party be provided an opportunity to be heard or to present testimony or witnesses on their behalf. The United States will not apply full faith and credit to the decisions of another country if in the determination of the Court in the United States, the foreign country did not provide due process or an opportunity to be heard. Similarly, the retaining country will often not give the judgments of a United States court full faith and credit. In such situations, it is imperative to have local counsel to help you navigate the legal labyrinth.
5. Does It Work?
Sometimes. The procedure is less likely to work if the child has dual citizenship or if the interpretation of the exceptions to the requirement for return are in favor of the child’s retention. The faster you act once the child has been retained in another country, the ability of the local counsel you retain, and a similar legal system are more likely to yield a positive result.