On behalf of The Marks Law Firm, L.L.C. posted in Child Custody on Wednesday, March 6, 2013
The Hague Convention on the Civil Aspects of International Child Abduction was designed principally to eliminate one parent removing a child to another country to take advantage of more favorable laws relating to child custody. Under the Hague Convention, the country of habitual residence has the exclusive jurisdiction to determine child custody, and wrongful removal from the habitual residence by a parent requires a prompt return to that country to address issues of custody.
The Hague Convention has an emergency clause that has recently been the subject of some intensive research. As reported in the New York Times, a majority of cases of child abduction under the Hague Convention involve a mother with primary or joint custody, and a majority of those cases involve claims of fleeing physical abuse. Using simple math, the claims of abuse amount to only a majority of a majority of cases, or somewhere between 25% and 30%. Some have taken this data to mean that the Hague Convention is not working, that too many women are forced to return to face their abuser under laws that will not protect them from additional abuse.
It seems that the analysis of the data that leads to this conclusion may be faulty. First, because the Hague Convention has an emergency clause that allows a parent who wrongfully removes a child to remain away from the country of habitual residence if that parent proves abuse, it would make sense that most fleeing mothers would raise the issue of abuse, as it often serves as their only justification for not returning the child to the habitual residence. This does not mean all of these allegations lack merit; it only means that some of them do lack merit, so that the data overstate the incidence of abuse. Second, the idea that federal district courts in our country would routinely ignore claims of abuse simply misstates the reality of reported cases where district courts, after evidentiary hearings, do find sufficient evidence of abuse and do not order a return. Finally, the desire of a parent fearing abuse to leave the country of habitual residence does not lead inexorably to the conclusion that the parent did so because the country of habitual residence cannot or will not address abuse. Some signatory countries do have enforcement issues with regard to physical abuse of spouses and children, but that cannot serve as an indictment of the entire Hague Convention mechanism.
The issue of abuse in abduction cases can be complicated by the fact that the source of proof may be in another country, or witnesses may not be present. We should do more to assist courts in assessing as much evidence of potential abuse as possible, and encourage other countries to cooperate in sharing such evidence.
The answer to problems of spousal and child abuse in other countries is not to water down the return priority of the Hague Convention, but to help better utilize the emergency clause for cases of actual, demonstrable abuse. For example, computer technology allows courts to hear testimony via Skype in other countries, and we should encourage taking advantage of that technology so that courts hear sufficient evidence relevant to abuse. To do otherwise will undermine the greatest protection parents have against wrongful removal and retention of their children in foreign countries.
If you have a question about international child abduction, contact us – we can help.