Few parents will ever face a more terrifying and daunting prospect than the abduction of their child. Such a scenario is all the more terrible if the abduction is across international borders.
Fortunately, international law provides a powerful tool to deal with this problem in the form of the Convention on the Civil Aspects of International Child Abduction, also known as the Hague Convention.
The Hague Convention is an international treaty that aims to prevent parents from taking a child out of his or her home country, or state of “habitual residence,” to gain a better forum in the courts of another state or to deprive the “left-behind parent” of custody or visitation rights. It is a lengthy and complex body of law, but one that has proved to be an effective weapon against the growing scourge of international child abduction*. The U.S. entered into this treaty in 1988, and our country’s “Central Authority” at the U.S. State Department Office of Children’s Issues works hard to protect American children who are abducted to other countries, as well as cooperates with the nationals of other countries whose children are abducted to this country.
In fact, the whole basis of the Convention is that countries agree to cooperate with one another toward returning children to their original countries. There is a collective belief that the home state of each country is best equipped to resolve child custody disputes under its own laws, rather than the laws of the countries to which parents are fleeing. Thus, the Hague requires children under 16 to be returned to their state of habitual residence so long as the left-behind parent can prove, by a “preponderance of the evidence,” that he or she possessed custody rights at the time of the wrongful removal from the country of habitual residence and that he or she was exercising those rights.
Once the left-behind parent meets this burden of proof, the child must be returned unless the removing parent can meet one of several specific, but limited, defenses. The main defenses to return include:
1.One Year & Settled: The left-behind parent waited more than 1 year before filing the Hague petition and the child is “well – settled” in the new country.
2.The Mature Child Objection: The child expresses a mature and independent view that he or she does not wish to return to the home country.
3.Grave Risk of Harm: Returning the child will result in a grave risk to the child’s physical or emotional well-being, and such risk cannot be controlled by reasonable “undertakings.”
4.Human Rights Exception: The child’s home country lacks basic human rights or fundamental freedoms such that the child cannot be safely returned.
International relocation and Hague Convention cases can be challenging, and a knowledgeable and experienced attorney is often required to navigate them, whether the attorney is representing the left-behind parent or the parent who has removed the child. They can be heard in either the state or the federal courts, and an appropriate analysis of these cases involves a comprehensive review of the facts, procedural background, and the relevant statutes and case law.
However, these cases are amongst the most important and profound child custody matters that the family law justice system ever hears. They are fascinating, but often gut-wrenching, battles that involve fundamental notions of justice, and the most basic principles of due process.
*According to the FBI’s National Crime Information Center, over 460,000 children are reported to go missing each year in the United States, alone. 2015 NCIC missing person and unidentified person statistics (2016) FBI. FBI. Available here (Accessed: October 26, 2022).