We have all seen the stories on the news – a parent takes his or her child out of the United States and to a country where they have citizenship. Often they leave saying they intend to go to visit family or catch up with friends, but in the end, they never return. Worse, they attempt to use the family courts of that country to deprive the other parent of rights to the child.
International child abduction has been a growing concern as the number of people of different nationalities marrying has increased. In 1981, a number of countries met and signed the Hague Convention of the Civil Aspects of International Child Abduction, a treaty that sets forth specific rules and procedures to follow in cases where one parent takes the child to another country and will not return the child to the previous country.
How does it work?
Under the Hague Convention, a parent may not wrongfully remove a child from its place of habitual residence, deemed the country where the child regularly resided prior to the removal. Further, each country that signed the treaty has to provide a ready legal avenue to petition for the return of the child. If a court finds that a child has been wrongfully removed, the court must order the return of the child to its habitual residence. Critically, a court hearing a Hague case cannot consider the merits of any custody complaints – those are reserved for the proper court in the country of habitual residence.
If a parent in the United States suddenly finds that the other parent has taken the child to another country and will not return with the child, the parent should retain an attorney with experience in these matters and also contact the proper law enforcement authorities. If the country where the parent removed the child is a signatory of the Hague Convention, the Hague Convention applies and the parent in the United States can file an action under the Hague Convention for the return of the child. If the other parent cannot be served, it might be necessary to seek enforcement in the country where the child has been removed.
Once a Hague petition has been filed, a court will begin an expedited process to hold a hearing. The court will determine first if the Hague Convention applies. If it does, the court will consider whether the child has been wrongfully removed by looking to the child’s habitual residence. If it finds that wrongful removal has occurred, the court will look to the limited affirmative defenses (such as a threat of harm to the child in the country of habitual residence from the other parent). If no defenses apply, the court will order the return of the child.
Hague cases can take months, and in some cases years, depending upon whether a losing party appeals to a higher court and whether securing return becomes an adventure.
If you find yourself in this situation, you need to act quickly and secure experienced legal help. The longer you wait, the more likely the other parent will either disappear or take court actions in the new country to deprive you of parental rights.
If the country where the parent removed the child is not part of the Hague Convention, you will have to rely on help from the State Department and Interpol to locate the child and the parent, and you likely will have to fight for the return of the child in the courts of the other country.
If you are in a situation where you have a custody decree with a parent who has citizenship in another country, you should seek an order from the court that issued the decree regarding international travel and holding of passports to minimize the risk of an abduction.
If you have questions about international child abduction, contact us – we can help.