Last week I discussed jurisdictional issues that come up when a child and/or custodial parent relocates to another state and its impact on child custody and/or visitation with the noncustodial parent.  And although the UCCJEA and the PKPA certainly come into play in domestic relocation cases, the applicability of these federal statutes may be applicable in international custody and visitation cases as well.  The Hague Convention, however, will almost definitely apply in international cases but not domestic ones. This statute does not determine which state has jurisdiction, as do the other two federal statutes, but serves to have the child returned to the home country.

          The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) is a multilateral treaty (ratified by the U.S. in 1988) that sets forth an expeditious method to return a child taken from one member nation to another (not all countries have adopted the Hague Convention). The Hague Convention was drafted to insure the prompt return of children who have been abducted from their country of “habitual residence” or wrongfully retained in a country other than their country of habitual residence.  The Hague Convention seeks “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 residence”, as well as to secure protection for the rights of access.”  The primary intention of the Hague Convention is to maintain the  status quo of a child custody arrangement that existed immediately before the alleged wrongful removal or retention. The Hague Convention, however, only applies to children under the age of 16.
         The Hague Convention provides that the removal or retention of a child is “wrongful” whenever:
                 a).   it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was “habitually resident” immediately before the removal or retention; and
                b). at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of “habitual residence”.

          Whether there is a court order for child custody or a mere agreement between the parents, or persons legally responsible, the Hague Convention can be invoked where the rights to care for the child are concerned.  “Habitual residence”, although is not defined by the Hague Convention, is typically determined by the court (state court or District court in New York have jurisdiction) on a case by case basis.  Unlike the UCCJEA and the PKPA, “habitual residence” is not determined by the child residing in a particular state for a period of at least six months.  Thus, the “home state” provision in these statutes is not applicable here. “Habitual residence” is usually the place the child resided before the questionable removal period, unless the move was done on consent or with the intention of the new place being the permanent home. Further, the court must look at the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return to determine “habitual residence”. 

          Additionally, the child must have been wrongfully removed or retained to invoke the Hague Convention, and unlike the UCCJEA and PKPA, the best interests of the child standard does not come into play.  However, there are defenses to the law, where the  parent that wrongfully removed  the child can prove that:
 
               1) the removal or retention occurred more than one year prior to the commencement of child custody proceedings in the “new” country; or
              2) the other parent was not exercising any visitation with the child at the time of removal or retention or acquiesced in the removal or retention; or
              3) a return of the child to the country (not necessarily the parent) would subject the child to a grave risk of harm, either physical or psychological (domestic violence cases are not an automatic bar); or
             4) the “new” country’s courts finds that a child of significant age and maturity to have his or her views considered, does not wish to return; or
            5) a return would not be permitted pursuant to the “new” country’s fundamental principles as it relates to human rights.

         Given these exceptions, it is imperative to commence a Hague Convention proceeding as soon as possible, for the longer the child remains in the other country the better the argument the removing parent can make that the child should not be returned. Also, it is crucial to establish and collect proof that this is the child’s “habitual residence” and that it was the intention of both parents to make it permanent.  This may not be as easy where a parent who is a national of another country, comes here,  raises the child here and can make a showing that there was always an intention to have the child relocate to his or her home country.  It is not uncommon for that parent to covertly establish a residence in that other country for themselves and the child, unbeknownst to the left behind parent, while living here and maintaining a life here.  This can certainly make the left behind parent’s evidentiary case quite challenging, unless that parent is diligent in amassing as much proof as possible to prove otherwise.  Also, contacting the U.S. State Department on Children’s Issues, the federal and state prosecutors, as well as other agencies should be put on notice as soon as the removal or retention occurs.

          Although there is no way of knowing for certain if a parent plans on absconding with their child at any point, it is always wise to take every possible precautionary measure to prevent such an act.  Having open and constant contact with the other country’s officials, hiring an attorney both abroad and here and being diligent all help to facilitate a safe and prompt return.