The term “child abduction” triggers a certain image in the minds of most people. Typically you think of a horrifying local new story, amber alerts popping up in the area, or even a film or novel embracing such a scenario. We all tell ourselves “that could never happen to my precious child.” But, picture this: you’ve just divorced your spouse and gone through a heated custody battle, and before you know it, your ex has flown overseas with your child – no notice, no details, no notification. Suddenly, you find yourself in the very position you thought would never happen.
What can you do? What should you do? Should you contact your lawyer? The police? Do you catch the next flight overseas and try to remedy the situation? This article will detail the ins and outs of international child abduction.
International Child Abduction Defined
When we think of child abduction, typically the image of a bad guy in a sketchy van snatching children immediately pops into our heads. In actuality, child abduction can take a variety of forms, and sometimes the “bad guy” is the child’s parent. One type of international child abduction occurs when a parent takes a child to another country; this is called removal. The other type of child abduction occurs when a parent keeps the child in another country beyond his/her visitation period or custodial period.
But how do you prove that removal happened? What if the parent who took the child says that the removal was permissible? An entity known as “The Hague Convention” handles international child abduction and sets standards that define, classify and detail true international child abduction.
The Law: The Hague Convention
Approximately 85 foreign states and countries, including the United States, have adopted The Hague Convention. If a child was taken to a country that participates in the Convention, that country will collaborate with officials in having the child returned, according to the standards of the Convention. The Hague Convention on the Civil Aspect of International Child Abduction is the most important law regarding international child abduction. This provision of the Convention details the procedures for the return of a child, as well as the enforcement of custodial rights of a parent. This section of the Convention also specifies the standards that must be met for the Convention to apply.
First, the parent must prove that the country of origin was the child’s “habitual residence.” What does this mean? Unfortunately, the Hague Convention does not define the term habitual residence. However, the federal court system has defined “habitual residence” to mean “ordinary residence.” Further, the “ordinary residence” means “customary residence prior to removal.” Still not clear?
There are scenarios in which habitual residence is easy to prove, while other situations make it difficult to prove or determine a child’s habitual residence. For instance, a child may have dual citizenship, or may have even spent a substantial amount of time in more than one country. The argument the “abducting” parent will likely make in tough cases is that the child’s habitual residence is in more than one country.
Second, the parent must prove that the move (or wrongful retention of the child) was against his or her custody rights. The easy scenario is when a court has already ordered custody or there is an agreement in place with regard to custody. The controlling legal document detailing the custody arrangement should explain custody, as well as visitation rights of each parent. But what if your case is still pending? What if there is no custody order in place?
There’s no need to worry in those situations, since the Hague Convention provides the proper court with custody rights, and by a parent moving a child outside of the court’s reach (or jurisdiction), is considered abduction.
Lastly, a parent must prove that he/she was exercising custody rights at the time of the abduction. Essentially this means that the parent bringing the action per the Hague Convention must have spent some amount of time with the child, before he/she was abducted. If a parent moved and had not been in contact with the child for some time, that parent will be unable to bring an abduction action under the Convention.
If a parent is able to prove the above three elements, then the habitual country, as well as the country where the child was removed, will collaborate to have the child safely returned. It is also important to note that if your child has been taken to a country that has not adopted the Hague convention, the process for seeking return of the child will depend upon the treaties the United States has with that country. The process described above only applies to situations where the removing country and the habitual country have adopted the Hague Convention.
Defenses to the Hague Convention
Even if a parent satisfied all of the required elements, the parent accused of abducting the child still has the right to raise certain defenses. Under the Convention, there are four recognized defenses available to a parent: (1) Returning the child would expose the child to harm or place him/her in an intolerable situation; (2) Returning the child would violate fundamental principles of human rights and fundamental freedoms; (3) The action was not commenced within one year of the wrongful removal or retention; and (4) The complaining party consented to the wrongful removal or retention, or the complaining party was not exercising custody rights at the time. The parent raising the defenses has the burden of proving such defense, and in doing so they must provide compelling evidence of the defense raised.
Logistics – How it Works
As detailed by the Convention, each participating country must designate a “Central Authority” to handle Convention issues. In the United States, such department is the State Department.
The parent seeking to have their child returned would first contact the State Department to report the removal and begin the petition process. The parent is required by the Convention to complete an application in both English and French, and all documents submitted with the application must be translated into the language of the country where the child is located.
After the application has been complete, it will be sent to the central authority of the country where the child is located, where the investigation will begin and necessary action taken to ensure the child’s safety. At the close of the investigation, there will be a hearing using the laws of the country that the child has been removed to.
It’s worth noting that the Convention does not consider the “best interests” of the child. The appropriate court issuing a custody order will make a decision according to that standard, but the Convention’s main premise is providing the mechanism for return of the child to his/her habitual residence.
Tips for Preventing Abduction
Actually going through the process of petitioning for your child’s return under the Hague Convention can be upsetting, distressing, and also lengthy. By the time you’ve completed all of the steps for filing an application, an investigation is held, and a hearing is held, you conceivably could have gone months without your child at this point. If a parent is concerned that they could be involved in an international child abduction situation, there are tips that can prevent such a nightmare from happening.
First, work toward getting a custody order in place. If the other parent has citizenship in another country, works in another country, has family in another country, a home or business in another country, or some other ties to another country, it is in your best interest to be proactive in getting an order on custody in place. Your order should state the custody rights of each parent, it should consider out-of-state or out-of country travel, and it should detail which parent will keep travel documents, like passports.
Once the order is in place, the parent should make sure that copies of the order are provided to the child’s school, passport office, the State Department, and the embassy in the country where the parent feels the child could be abducted to. As an additional safety measure, the parent fearing abduction should keep as much information about the other parent as possible; try to obtain copies of a driver’s license, passport, Social Security card and the like.
Lastly, you can always file a motion for emergency custody if you have been tipped off that the other parent intends to remove the child. You can get a temporary order from the court on the basis of the other parent trying to remove the child from the court’s jurisdiction. While you may never find yourself in a position where you need to file a petition to have your child returned from a foreign country, rest assured that there is a process in place that allows for your child’s safe return.