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.