What remedies are available to left-behind parents when a child is removed from the child’s primary country to another country?

There has been a recent uptick in the number of cases where a parent unilaterally removes a child from the child’s place of residence to another country in an attempt to be the child’s sole parent. The Hague Convention on the Civil Aspects of Child Abduction (read the text of the treaty here) is a multilateral treaty ratified by 98 countries as of May 2018 providing an expeditious protocol for the return of a child unilaterally removed from the home country. The treaty requires the country to return a child when wrongfully removed in breach of the custody rights of the left-behind parent. The law of the state/country where the child resided determines the “custody rights”, which provides some fluidity in the laws.

Determination of the country of the child’s habitual residence is the first key to relief. This is the last place the child habitually lived. So, for example, Ireland issued a custody decision in favor of father, but the child and mother lived in Illinois for three years prior to and after the Ireland proceedings. The habitual residence was determined to be Illinois because the mother lawfully moved to Illinois at the time she did, prior to the Ireland proceedings. Thus, the law of Illinois would determine the custody of the child.

Unmarried parents must be extremely careful when it comes to international child custody. Many countries do not provide paternity rights to unwed fathers, limiting their rights to prevent a mother from moving a child to another country.

Procedurally, a Hague Convention case is mandated to be finalized within 6 weeks of the date filed, although that ideal often is not achieved. The first step is to file the petition in the federal court. While state and federal courts have concurrent jurisdiction over Hague cases, the federal court is usually the better forum due to the nature of federal focus on jurisdiction. State courts are more accustomed to equity and discretion in cases and may confuse its role. The conventional standard of best interest of the child has no place in a Hague case. The sole question is one of jurisdiction because the court in a Hague case is not permitted to alter any substantive rights of custody. It is barred from considering any merits of a custody dispute. Another reason federal court is a better forum is due to the backlog often encountered in state courts compared to the availability of the federal court to expeditiously hear the Hague case.

The next step in a Hague cases is to evaluate the availability of injunctive relief. If filing in federal court, the standards for ex parte relief are strenuous and require attention to detail.

To succeed under a Hague case, the petition must prove that the removal of the child was “wrongful”. Once shown, the burden shifts to the respondent to prove any affirmative defenses. One example of such an affirmative defense is whether the child is at grave risk of physical or psychological harm if returned. The standard of proof is clear and convincing evidence of any affirmative defense.

Note than Hague remedies only apply between countries who are signatories to the treaty. Many countries have not signed off on the treaty and refuse to acknowledge international laws regarding child custody. Remedies in countries that do not comply with the Hague Convention are very limited. (click here for a list of subscribing countries)

Hat tip to Molshree A. Sharma for her article International Child Custody and the Hague Convention in the January 2019 Family Lawyer Magazine as well as Gerissa Conforti and John Rice for their article Child Abduction Cases Under the Hague Convention in the July 2018 Family Lawyer Magazine.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.