The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, hereinafter “Hague Convention” or “Convention,” was drafted in response to a substantial increase in cross border child abductions.[i] With the increase in interstate relationships there is a corresponding increase in potential Hague Convention Petitions as these couples have children. Prior to the Convention, left-behind parents experienced extreme difficulty in locating their children and securing their return.[ii]
Fleeing parents choose to take the child to another country without the consent of the other parent for numerous reasons. Noted motivations have included 1: Fleeing parents seeking, friendly forums for adjudication of their custody cases 2: Attempt to inflict pain and suffering on their ex-partner 3: to sustain a relationship by fueling conflict as a means to maintain communication and contact, fleeing from violence and homesickness.[iii] Many of the fleeing parents are simply unaware of the international treaty governing return of the child or children.
Statistical analysis suggests that worldwide the primary caretaker, still usually the mother, is responsible for the majority of abductions.[iv] Findings also suggest that more often that the removing parent is returning to their country of origin/nationality, a county that they consider their “home.” [v]
The Hague Convention outlines the procedure for returning a child that has been taken or kept in a country other than its habitual residence in violation of the custody rights of the other parent. The U.S. ratified The Hague Convention Treaty on International Child Custody and in order to implement it enacted the International Child Abduction Remedies Act (ICARA) on April 29, 1988.[vi] The United States Department of State Office of Children’s Issues (OCI) is the Central Authority that has the executive responsibility for handling incoming cases of children that have been abducted to the U.S.[vii] As of February 2013, eighty-nine (89) countries were parties of the Hague Convention.[viii] Appendix 1.
The “return” remedy is the central operating feature of the Hague Convention.[ix] Under the Convention, a parent petitions for the child to be returned to their state of “habitual residence.” The goal of the return remedy is to both prevent adjudication of custody issues in the country where the parent has fled and to return the child to the status quo prior to their removal. The return remedy does not alter the allocation of custody rights and leaves that decision to the country of habitual residence.[x]
ICARA grants federal and state courts concurrent jurisdiction over actions arising under the Convention. [xi] Thus, an attorney may file a Petition for Return in either a local state court or the local federal court. As an additional deterrent and motivator for the offending parent to return the child quickly, ICARA also provides that a court ordering return must require respondents to pay various costs incurred by petitioners, including legal fees, expenses and court costs.[xii] There is no requirement for petitioners to pay costs if they are not successful in their petition.[xiii]
Establishing a right to return the child can depend heavily on a petitioner’s settlement agreement. Family law practitioners must be well aware of how a foreign court will analyze an agreement and what protections they can provide their clients with thoughtful and careful drafting of the agreement. The agreement is an attorney’s first opportunity to not only discourage abduction, but to also protect their client in the event of abduction.
The purpose of the Hague, stated in its Preamble, is “to protect children internationally from the harmful effect of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.”[xiv] The Convention only applies to children sixteen (16) or younger that have been taken.[xv]
In order to establish a prima facie case for return, the petitioner must prove: (1) prior to removal or wrongful retention, the child was habitually resident in a foreign country (2) the removal or retention was in breach of custody rights under the foreign country’s law; and (3) the petitioner actually was exercising custody rights at the time of the removal or wrongful retention.[xvi] Once the petitioner can show these things, they have shown that the child was “wrongfully removed” and are entitled to the child’s return unless the respondent can prove one of the enumerated defenses to the return.
Before examining the separate Articles of the Convention that control the return remedy, it is important to note that there are several terms of art in the Preamble. Many of these terms correspond logically to the meanings that are common in Missouri family practice. However, there are very key distinctions in both the meaning and interpretation of several terms in the treaty including “habitual residence”, “right of custody” and “right access.”
i. Habitual Residence
To determine if the removal is wrongful under the Convention, the court must first decide if the child was removed from their state of habitual residence. The Convention itself does not specifically define the term “habitual residence.” The Convention only states that the habitual residence is determined at the point in time “immediately before the removal or retention.”[xvii]
With very little guidance from both the Convention and ICARA, determining the child’s “habitual residence” is a hotly contested issue in Hague cases. The Convention makes clear that the country of “habitual residence” should be the decision maker in a custody dispute and it prohibits the country to which the child is abducted from making any custody determination.[xviii]
“The Contracting State to which the child has been removed on in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under the Convention is not lodged within a reasonable time following receipt of the notice.”[xix]
Thus, the State that is determined as the child’s “habitual residence” will ultimately determine the actual child custody arrangement and the law that applies to the parties’ agreement or judgment.
All eleven circuits have weighed in on what factors each court should consider in determining the habitual residence of the child.[xx] The 8th Circuit in Silverman v. Silverman, 38 F.3d 886 (8th Cir. 2003), determined that habitual residence is established by focusing on both the settled purpose from the child’s perspective and the parents’ intent. Thus, in any custody agreement, it may be appropriate to include the parties’ intent with regard to the child’s “habitual residence” at that time and in the future.
ii. Right of Custody v. Right of Access
Only a breach of a “right of custody” entitles the parent seeking return of the child access to the return remedy.[xxi]Article 5 of the Convention defines rights of custody v. rights of access. “Right of Custody” is defined as any “rights related to the care of the person of the child and in particular, the right to determine the child’s place of residence.”[xxii]
In contrast a “right of access” in the treaty is defined as including “the right to take a child for a limited period of time to a place other than the child’s habitual residence.”[xxiii] The Convention does not offer the return remedy for a breach of rights of access. For removals that frustrate “rights of access” the aggrieved parent may file an application to make arrangements to organize or secure the effective exercise of this right.[xxiv] Simple visitation with the child, without what we would consider a joint legal custody arrangement, would fall under the separate definition of “right of access” in the Convention. ICARA, which as we stated earlier implements the Convention in the U.S., defines the term “right of access” as visitation rights.[xxv] The Convention includes a separate remedy for reestablishing visitation, but this remedy is rather ineffective.[xxvi]
The U.S. courts have determined that a restriction on the travel of a parent, (called a ne exeat clause), is a “right of custody” under the Convention.[xxvii] In Abbot v. Abbot, a mother removed the child from Chile to the U.S. against the father’s wishes.[xxviii] Chilean law addressed in this case provided that once a party has visitation rights, that the other parent must obtain consent from the parent with visitation rights to remove them from Chile.[xxix] This case decided in 2010, found that the ne exeat right established by the Chilean law would constitute a “right of custody” that father would have exercised were it not for the child’s removal.[xxx]
Similarly, here in Missouri the statute governing relocation, R.S.M.O §452.377, may qualify as a ne exeat right under the Convention. Missouri law R.S.M.O §457.377 provides that neither party may relocate the child’s residence without notice to and the consent of the other parent. Missouri has established a “ne exeat” clause by operation of law to all custody agreements entered in the state.
Article 3 states that the right of custody is defined by the law of the state of habitual residence of the child.[xxxi]Therefore should a foreign court determine that the U.S. is the state of habitual residence, and therefore use U.S. law to determine whether a “right of custody” exists, a ne exeat clause would establish a “right of custody.” However, many countries, including Canada and France, do not agree that ne exeat clauses are a “right of custody.”
Practitioners drafting initial custody agreements must ensure that clients are well protected from a foreign court’s scrutiny of the agreement. Carefully drafting an agreement that shows the intent of the parties for child’s habitual residence, relocation limitations (ex. child will live in the U.S.), and clear articulation of the legal custody rights of either parent will aid to return the child if an abduction occurs.
iii. Exercising Right of Custody
In addition to having a right of custody, the petitioner must also show that he or she was exercising this right of custody. In Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060 (6th Cir. 1996), the Sixth Circuit held that courts should “liberally find ‘exercise’ [of custody rights] whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child,” and that “as a general rule, any attempt to maintain a somewhat regular relationship with the child should constitute ‘exercise.’” [xxxii]
The Sixth Circuit stated that:
[I]f a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to “exercise” those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. Once [the court] determines that the parent exercised custody rights in any manner, it should stop— completely avoiding the question whether the parent exercised the custody rights well or badly. These matters go to the merits of the custody dispute.[xxxiii]
Establishing that the petitioner was exercising their right of custody relies primarily on whether the petitioner attempted to maintain a relationship with the child and is a fact specific inquiry.
Once a petitioner establishes the prima facie case for return, the abducted child must be returned to the country of habitual residence, unless the respondent can prove that one of the designated affirmative defenses.[xxxiv]
As a guide to how a foreign court will analyze each defense (also called exceptions), we will examine U.S. law concerning these defenses. However, a foreign court may or may not analyze these defenses in the same manner, although foreign courts often do examine the definitions of other treaty countries to determine whether these defenses apply. These defenses have generally been very narrowly construed in efforts to honor the described goals of the Convention.
There are several defenses to the remedy of return if the child has been wrongfully removed. These defenses are described in Articles 12, 13 and 20 of the Convention. The first defense is that the action for return commenced over one year after the alleged removal and that the child has become settled in the new environment. The second is that that the left behind parent consented to or acquiesced to the retention or removal. The third is that there is a grave risk that the child’s return would expose the child to physical or psychological harm or place the child in an otherwise intolerable situation. The fourth is that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. The final defense is that returning the child would violate fundamental principles of human rights.[xxxv]
1. The action for return commenced over one year after the alleged removal and that the child has become settled in the new environment
The first defense is commonly called the “well settled” defense. A respondent in this situation argues that the child is acclimated and has stability in the new environment. This defense is only applicable in situations where the petition for return was filed more than one year following the wrongful removal.[xxxvi] If the court determines that the petition was filed within one year of the wrongful removal, the respondent cannot use the defense that the child is well settled in their new environment regardless of how well the child is acclimated.[xxxvii]
Courts, however, do not generally apply the one-year rule as a statute of limitations. Courts have applied tolling to this requirement since often the abducting parent will abscond with the child and keep them in hiding for periods of time. Strict application of this rule would lead to situations where an abducting parent could attempt to hide beyond the one-year period in order to prevent the other parent from filing a petition for return under the Hague Convention.[xxxviii]
The Hague Convention and ICARA provide little guidance of what factors the court should consider in determining whether a child is “well settled.” The State Department has published an analysis of the treaty (Hague International Child Abduction Convention; Text and Legal Analysis, Public Notice 957, 51 Fed. Reg. 10494, 1986 WL 133056)[xxxix] that provides some guidance instructing that “nothing less than substantial evidence of the child’s significant connections to the new country is intended to suffice to meet the respondent’s burden of proof.”[xl]
In the case In re Koc, the court used six factors to determine if the child was “well settled.” The six factors where: 1) the child’s age 2) the stability of the new home environment 3) whether the child attended school regularly 4) whether the child attended church 5) stability of the abducting parent’s employment 6) whether the child has friends and family in the area.[xli] Factors courts have considered in determining that a child is not well settled are that the child is too young, the parent has limited their social contact and if the parent’s immigration status is uncertain.[xlii]
In the U.S. a respondent must prove by a preponderance of the evidence that the child is settled in the new environment.[xliii] This again is a fact specific analysis where both parties can put forth reasons that the child is or is not settled in the new environment.
2. The left-behind parent consented to or acquiesced to the retention or removal
The second exception to return is if the petitioner has consented or acquiesced to the retention or removal. The consent defense focuses on the petitioner’s conduct before the child’s removal or retention. The defense of acquiescence relates to “whether the petitioner subsequently agreed to or accepted the removal or retention.
Proving consent requires relatively little formality, but courts will look to any scope and limitations placed by the parent on their consent.[xliv] Acquiescence, requires much more formal evidence. In Freidrich v. Friedrich (Freidrich II), the Court stated that acquiescence must be “an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time.”[xlv]
Although in Freidrich (II) the court warned that every little statement should not be overanalyzed, courts will look at the conduct of the parties in determining whether a party consented or acquiesced to the removal.[xlvi] Factors that are relevant are how the child was removed (secretively or openly),[xlvii] whether the parents cooperated in obtaining necessary documentation to leave the country,[xlviii] the actions of the left-behind parent (some courts have found the mere act of filing a Petition as non-acquiescence)[xlix] Oftentimes, the abducting parent will attempt to present an Authorization to Travel as evidence of consent. However, courts have held that this travel documentation did not amount to consent to remove the child permanently.[l]
This defense is also a subjective and fact specific analysis of the actions of the parents and ICARA requires that the respondent prove this exception by a preponderance of the evidence.[li]
3. Grave risk that the child’s return would expose the child to physical or psychological harm or place the child in an otherwise intolerable situation
The third defense the Convention provides to an application for return is that returning the child would create a grave risk to safety of that child or would place the child in an intolerable situation.
The relevant portion of Article 13 reads as follows:
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body, which opposes its return, establishes that - [...]
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”[lii]
Under ICARA, the respondent must prove a “grave risk of exposure to physical or psychological harm” or of placing the child in an “intolerable situation” by clear and convincing evidence.[liii] There is no guidance in ICARA for what evidence an attorney should present to meet these exceptions which, not surprisingly, has resulted in varying outcomes.[liv]
Many courts struggle finding a distinction between a “risk of harm” and a “grave risk of harm.” Several district courts have attempted to define this prong.[lv] Evidence of serious physical or sexual abuse or assault has been held sufficient to meet the grave risk exception.[lvi] However, U.S. courts are reluctant to view the psychological harms of children who witness domestic violence as more than a serious risk.[lvii] See, Nunex-Escudero v. Tice-Menley, 58 F.3d 374, 376-77 (8thCir. 1995) (no grave risk exception where mother testified to physical, sexual and emotional abuse but the conflict was between the parents and not the child.) The 6th Circuit in Freidrich (II) defined grave risk of harm and intolerable situations as “when the return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease…cases of serious abuse or neglect or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” [lviii]
The Eighth Circuit in August 2013 affirmed a decision to deny the child’s return under the Article 13 “grave risk” exception. [lix] In this case, Acosta v. Acosta, 725 F.3d 868 (8th Cir 2013), Father attacked mother in a rage cutting her seriously and stabbing her friend when she visited Peru to retrieve belongings. He previously had lost his temper and pushed the child to his bed and had an outburst of road rage shattering another driver’s window in front of the child. Father left voice messages threating to kill himself and the child. Additionally, in Peru, the child made suicidal comments to his teachers and had serious behavioral problems. Father pulled the child from the recommended counseling. The child had violent outbursts and bed- wetting. But, after the mother fled to the U.S., and while in the U.S. the child improved with therapy.[lx] The court found that although there was little evidence of physical abuse to the child, the Article 13 exception still applied because Father’s inability to shield his children from his rage posed a grave risk of harm to the children.[lxi]
This exception, as with all of the defenses, has generally been very narrowly construed. Courts follow a strict reading of the grave risk exception on the underlying principle that the courts of the child’s country of habitual residence are generally in the best position to determine the merits of the alleged harms and provide adequate protection.[lxii]
This Article 13 defense also includes the defense of placing the child in an “intolerable situation.” For this defense, the court scrutinizes the people and circumstances that await the child upon their return. The court will also analyze if the home country is capable of providing protective measures upon the child’s return and/or whether the court can provide protective measures in its return order.[lxiii]
Often a respondent will claim they were fleeing due to domestic violence and argue this exception to avoid the return remedy. Scholars have argued that the interpretation of this defense is too narrow and does not properly account for incidents of domestic violence. [lxiv] The scholars are gravely concerned that although the children may not be direct victims of the physical and emotional abuse by witnessing this abuse they are in fact at “grave risk” of harm if returned. The counterargument is that a broad interpretation could be be used too frequently and that cases with alleged spousal abuse or child abuse would result in extended litigation frustrating the intent of the Convention to provide a prompt return mechanism.[lxv]
Depending on the gravity of the risk, the court may look at the ameliorative measures (undertakings) available in the home country to protect the child. This inquiry requires a serious examination of the ability of the judicial and other protective measures available in the other country.[lxvi] In cases where the risk is clearly serious any ameliorative measures may not be sufficient. For example, in Acosta, the court took note that when father attacked mother, the Peruvian police stood by passively watching and did not prevent or stop the attack.[lxvii] But, in cases where the gravity of the risk is murky, the undertakings may take a more substantial role in the analysis.[lxviii]
In 2011 and 2012 the Hague Conference of Private International Law (HCPIL) identified “domestic violence allegations in return proceedings” as one of its themes. [lxix] The debate and discussion continues on how to more uniformly address cases where the parties allege domestic violence.
4. The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.[lxx]
Article 13 provides the defense that the child objects to his or her return. The Article states that the court may refuse “to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”[lxxi] Again, the Hague Convention does not provide a determinative age where this defense applies making this defense another very fact specific inquiry.
Some courts have determined that the child’s wishes should be considered regardless of their age.[lxxii] To establish this exception, the court considers the child’s testimony and evaluates the child’s maturity. Each child is analyzed individually. One eight year old may be mature, while another is not sufficiently mature. Since abducting parents often unduly influence the child(ren), courts will heavily scrutinize the child’s opinions. Courts have cautioned “that an abducting parent should not be rewarded, in effect, for wrongfully retaining the child for an extensive period of time.”[lxxiii]
5. Returning the Child would violate fundamental principles of human rights
Article 20 provides that a court can refuse to return the child if the return would violate the fundamental principles of human rights. This defense is rarely used,[lxxiv] but is present in the Convention nonetheless. It has not successfully been applied in any U.S. case and has applied in only a few cases internationally since a violation of fundamental human rights is tantamount to an “intolerable situation” in Article 13 (b)[lxxv]. The Hague Convention has been attacked as unconstitutional in a few successfully in cases.[lxxvi]
A parent cannot take advantage of the protections provided by the Hague Convention unless the child was habitually resident in a State that is a signatory and removed to a State that is a signatory.[lxxvii] Even then however, parents can encounter various issues fueled by political motives, social norms or expectations, or disorganization of the procedural processes of enforcement. Although the Convention calls for expeditious resolution of these cases, many cases take months or years to resolve.
Two Hague cases that received publicity recently in the news media are the cases of Christopher Savoie and Sean Goldman.[lxxviii]
Sean Goldman, in 2004, was four years old when his mother took him to Brazil for a “two week” vacation. Shortly after they left for Brazil his mother called his father in New Jersey (where the family had lived since Sean’s birth) and stated she would not return and wanted a divorce and sole custody. Sean’s father immediately filed for divorce in New Jersey and quickly filed a Petition for Return in Brazil. The case dragged on for years and the mother eventually raised the defense that the child had settled in Brazil and it would be psychologically harmful to return him. Father’s Petition was originally denied on that basis. In 2008 Sean’s mother died in childbirth, but the Brazilian court still refused to return the child to his biological father. [lxxix]
In 2009, Sean Goldman was returned to the U.S., but only after the U.S. Congress passed a resolution demanding his return and the Secretary of State, Hilary Clinton, specifically discussed this issue with the Brazilian Prime Minister. U.S. Senate also held up passage of a trade bill that would benefit Brazil.[lxxx]
The U.S. Department of State Bureau of Consular Affairs publishes a yearly update on the compliance of the signatories to the convention. A number of countries that are signatories to the convention have been labeled as non compliant or showing a pattern of non-compliance. A list of these countries and the various reasons these countries have been labeled is listed in the Report on Compliance on the Hague Convention of April 2014. As of April 2014, three countries are listed as Not Compliant: Costa Rica, Guatemala and Honduras.[lxxxi] Countries listed as having Patterns of Non Compliance are: The Bahamas and Brazil.[lxxxii]
An additional issue that may increase the stress for an International Family, and attorneys representing them, is the child’s status in the other country. Other countries’ laws could favor one parent over another for its citizen children. For example, the Missouri Eastern District court found because Egypt granted custody only to fathers, and there was conflicting evidence that father sought citizenship for the child, it was not error to grant father supervised visits exercised only in the U.S.[lxxxiii]
A countries’ status as a signatory or non-signatory of The Hague Convention treaty can be critical. In countries where the State is not a party to the Hague Convention, the Hague Convention procedures are not in place, and the law of that state applies when trying to return the child.[lxxxiv] There are valid concerns that often countries have different political and social interests in protecting registered citizens of the country opposed to alien immigrants or visitors.
Christopher Savoie and his family lived in Japan from 2001 to 2008 when they moved to Texas. In Texas, the parties divorced and entered into a joint custody agreement in January 2009. In August 2009, mother abducted the children to Japan. Mr. Savoie flew to Japan and attempted a self-help remedy and grabbed the children on the street. The mother called the authorities and Mr. Savoie was jailed in Japan for kidnapping his children. He spent three weeks in jail. Although the Japanese court would not enforce his custody order, in 2011, Mr. Savoie was awarded a 6.1 million dollar judgment against his ex-wife that is enforceable in China via other treaties, giving her a large incentive to return the children.[lxxxv]
On January 24, 2014, Japan became the 91st signatory to the Hague Convention. Japanese law implementing the Convention went into place on April 1, 2014, however the law does not apply retrospectively. The law applies only to children abducted after April 1. Also, because Japanese domestic law contradicts sections of the Hague Convention, loopholes exist that may prevent true enforcement of the Convention for years to come.[lxxxvi]
Although the Christopher Savoie story is tragic, since Japan is was not a signatory to the Convention at the time of the children’s kidnapping, the law of Japan governed custody of the children. Japanese culture does not favor joint custody and has a maternal bias for raising children. However, even Christopher Savoie had warning that his ex-wife would soon attempt to wrongfully remove the children. He and his new wife noticed that when the ex-wife booked the trip, she did not book the return trip.[lxxxvii] This should have been a red flag.
The ABA Center on Children and the Law has published articles on prevention and remedies for parental kidnapping.[lxxxviii] A study conducted by this center identified six personality profiles that may be helpful indicating parents that may pose a risk of abduction: 1) Parents who have threatened to or abducted previously 2) Parents who are suspicious or distrustful because they believe abuse occurred and have social support for their beliefs 3) Parents who are paranoid-delusional 4) Parents who have strong ties to another country and are ending a mixed-culture marriage 5) Parents who feel disenfranchised by the legal system and have social support for their belief.[lxxxix]
Our first opportunity as attorneys to prevent child abduction and aid in enforcement through the Hague Convention or otherwise, is to properly draft marital settlement agreements with appropriate safeguards for our clients. Not only is it our ethical duty to protect our clients, it may also constitute malpractice to fail to heed our clients legitimate concerns and request proper safeguards from the court.[xc]
Family law practitioners should be aware of alternatives and supplements to the Hague Convention. The UCCJEA, the Uniform Child Custody and Jurisdiction Act, can provide additional relief for a left-behind parent. The UCCJEA is an available tool when an abducting parent refuses to return the child despite a foreign return order, or in situations where the Hague Convention is not applicable (ex. the child is over 16).
Under the UCCJEA §315, a prosecutor is empowered to locate children, see that children are returned, or enforce a child custody order. The prosecutor may act in any of the following situations:
R.S.Mo §453.720 (UCCJEA), specifically states that a foreign country is treated as a U.S. state for enforcement and jurisdiction.[xcii] Foreign orders, after registration, are also enforceable as U.S. orders.[xciii] Thus, the UCCJEA is a powerful supplement to ensure the enforcement of a foreign return orders.
The International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C 1204 (Public Law 103-173, 107 Stat. 1998), is the federal statute that criminalizes international parental kidnapping. This statute establishes that it is a federal felony to remove a child under the age of 16, or retain outside of the U.S., a child who has been in the U.S., with the intent to obstruct the lawful exercise of parental rights.
Parental rights in the statute are defined as “the right to physical custody of the child, whether the right is joint or sole (and includes visitation rights), and whether the right arises by operation of law, court order, or legally-binding agreement of the parties.[xciv]
The language in this law, however, makes the Hague Convention the preferred remedy if it is applicable to the case at hand.[xcv]
The Alien Exclusion Act may provide a left behind parent additional leverage if the other parent travels to and from the U.S. frequently for business or other purposes. The statute provides that any alien that takes or retains a child outside of the U.S. in violation of a custody order may be excluded from the U.S. The act may also be enforced against friends or family members that assist in keeping the child abroad. However, the Alien Exclusion Act is not applicable to countries that are signatories to the Hague Convention. Also, the exclusion ceases when the child is returned.[xcvi]
Family law attorneys must understand the Hague Convention in order to recognize potential Hague Convention. Practitioners with a thorough understanding of the Convention and abduction risk will more properly advise the International Families faced with such issues, present relevant evidence to the court, and draft more effective agreements and trial orders to protect their clients.
[i] Hague Convention on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, 19 I.L.M 1501. (Hague Convention). View Full Text at: http://www.hcch.net/index_en.php?act=conventions.text&cid=24
[ii] Lynda R. Herring, Taking Away the Pawns: International Parental Abduction & the Hague Convention, 20 N.C. J Int’L & Com. Reg. 137, 142-143.
[iv] Eran Sthoeger, “International Child Abduction and Children’s Rights: Two Means to the Same End,” 32 Mich. J. Int'l L. 511 (2011).
[v] Id. at 512.
[vi] International Child Abduction and Remedies Act (ICARA), 42 U.S.C. §11603(a).
[vii] Shani M. King, “The Hague Convention and Domestic Violence: Proposals for balancing the Policies of Discouraging Child Abduction and Protecting Children from Domestic Violence,” 47 Fam. L.Q. 299, 305 (2013).
[viii] Chafin v. Chafin, 133 S.Ct. 1017 (2013).
[ix] Abbot v. Abbot, 130 S. Ct. 1983, 1989 (2010).
[xi] ICARA, supra note 6.
[xii] ICARA, supra note 6, §11607(b)(3).
[xiv] Hague Convention, supra note 1, Preamble.
[xv] Id. at art. 4.
A word of warning, the Convention clearly states that it applies to those under sixteen, at the child’s sixteenth birthday the Convention no longer applies and any petition must be dismissed as there is no longer court jurisdiction to enter an order. Thus, an attorney must consider the child’s age at filing the petition and advise a client appropriately.
[xvi] National Center for Missing and Exploited Children (NCMEC), Litigating International Child Abduction Cases Under the Hague Convention, 10 (2012).
[xvii] Hague, supra note 1, art. 3(a).
[xviii] Hague, supra note 1, art. 16.
[xx] NCMEC, supra note 16, p. 19.
[xxi] Abbott, supra note 9, at 1989.
[xxii] Hague, supra note 1, art. 5 (a).
[xxiii] Id. at art. 5 (b).
[xxiv] Id. at art. 21.
[xxv] ICARA, supra note 6, §11602(7).
[xxvi] Patricia M. Hoff, “Parental Kidnapping: Prevention and Remedies.” American Bar Association Center on Children and the Law (2000). http://www.findthekids.org/pdf/prevention.pdf (last visited November 5, 2013)
[xxvii] Abbott, supra note 9.
[xxix] Id. at 1990.
[xxxi] Hague Convention, supra note 1, art. 3.
[xxxii] Freidrich v. Freidrich (Freidrich II), 78 F.3d 1065-66(6th Cir. 1996).
[xxxiii] Id. at 1066.
[xxxiv] NCMEC, supra note 16, p. 10.
[xxxv] Hague Convention, supra note 1, art. 12, 13,and 20.
[xxxvi] NCMEC, supra note 16, p. 34.
[xxxviii] Furnes v. Furnes, 362 F.3d at 723 (11th Cir. 2004).
[xxxix] Elsa Perez, Hague International Child Abduction Convention; Text and Legal Analysis, (“Public Notice 957”), 51 Fed. Reg. 10494 (1986) (“Public Notice 957”), at p. 1.
[xli] In re Koc, 181 F. Supp. 2d 136 (E.D.N.Y. 2001).
[xlii] NMEC, supra note 16, p. 42-43.
[xliii] ICARA, supra note 6, §11603 (e)(1)(A).
[xliv] Nicolson v. Pappalardo, 605 F.3d 100, 105 (1st Cir. 2010).
[xlv] Freidrich, supra note 32, at p. 1068.
[xlvi] Id. at 1070.
[xlvii] Baran v. Beaty, 479 F. Supp. 2d 1257, 1269 (S.D. Ala. 2007), aff’d, 526 F.3d 1340 (11th Cir. 2008).
[xlviii] Gonzalez v. Mena, 251 F.3d 789 (9th Cir. 2001).
[xlix] Tabacchi v. Harrison, No. 99 C 4130, 2000 WL 190576 (N.D. Ill. Feb. 10, 2000).
[l] Mendez-Lync v. Mendez-Lynch, 220 F. Supp. 2d 1347, 1358-59 (M.D. Fla. 2002).
[li] ICARA, supra note 6.
[lii] Hague, supra note 1, art. 13.
[liii] ICARA, supra note 6.
[liv] King, supra note 7.
[lv] NCMEC, supra note 16, p. 51-54.
[lvi] Friedrich, supra note 45, p. 1068.
[lvii] Melissa S. Wills, “Interpreting the Hague Convention on International Child Abduction: Why American Courts need to Reconcile the Rights of Non Custodial Parents, the Best Interests of Abducted Children, and the Underlying Objectives of the Hague Convention” 25 Rev. Litig. 423, 449 (2006).
[lviii] Freidrich, supra note 45, 1069.
[lix] Acosta v. Acosta, 725 F.3d 868 (8th Cir 2013)
[lx] Id. at 871-874.
[lxi] Id. at 876.
[lxii] Wills, supra note 57.
[lxiii] NCMEC, supra note 16, p. 55-56.
[lxiv] King, supra note 7.
[lxv] Wills, supra note 63, p. 449.
[lxvi] NCMEC, supra note 16, p. 56
[lxvii] Acosta, supra note 59, p. 873
[lxviii] Id. at 57.
[lxix] King, supra note 7, p. 305.
[lxx] Hague, supra note 1, art. 13.
[lxxi] NCMEC, supra note 16, p. 60.
[lxxii] Reyes Olguin v. Cruz Santana, No. 03 CV 6299(JG), 2005 WL 67094, at *8 n.19 (E.D.N.Y. Jan. 13, 2005).
[lxxiii] Laguna, 2008 WL 1986253, at *10 (citing Giampaolo, 390 F. Supp. 2d 1269). In Giampaolo, the court ordered the return of the child where the child lived exclusively with the respondent in the United States for over two years. 390 F. Supp. 2d at 1285.
[lxxiv] NCMEC, supra note 16, p. 43.
[lxxv] Id. at 64-65.
[lxxvi] Id. at 65.
[lxxvii] Rita Wasserstein Warner, “International Child Custody and Abduction Under the Hague Convention,” 23-SPG Int'l L. Practicum 50 (2010).
[lxxviii] Id. at 50-51.
[lxxix] Amanda Michelle Wade, “To Comply or Not to Comply? Brazil’s Relationship with the Hague Convention on the Civil Aspects of Child Abduction,” 39 Ga. J. Int'l & Comp. L. 271 (2010).
[lxxx] Id. at 288.
[lxxxi] U.S. Department of States, Bureau of Consular Affairs “Report on Compliance with the Hague Convention,” April 2014.
http://travel.state.gov/content/dam/childabduction/complianceReports/2014.pdf (last visited, June 26,2014)
[lxxxiii] Wahba v. Abdel-Kerim, 684 S.W.2d 868 (8th Cir. 1984).
[lxxxiv] Hoff, supra note 26.
[lxxxv] http://www.dailymail.co.uk/news/article-1385401/Desperate-father-Christopher-Savoie-tried-snatch-abducted-children-runaway-Japanese-mother-awarded-6-1-million-settlement.html (last visited 11/29/13)
[lxxxvi] Wedgwood, Scott, “Japan Finally Signs Hague Child Abduction Convention” (http://www.lexology.com/library/detail.aspx?g=5524194a-51ee-4b32-bf09-22cde40951e7, (last visited 6/29/14).
[lxxxvii] http://www.dailymail.co.uk/news/article-1385401/Desperate-father-Christopher-Savoie-tried-snatch-abducted-children-runaway-Japanese-mother-awarded-6-1-million-settlement.html (last visited November 30, 2013)
[lxxxviii] Hoff, supra note 26.
[xci] UCCJEA, 9 (1A) U.L.A. 271, § 315 (1999).
[xcii] R.S.Mo §452.720.
[xciii] UCCJEA, supra note 91.
[xciv] International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. §1204 (b)(2) (1999).
[xcv] Hoff, supra note 26.
[xcvi] Alien Exclusion Act, 8 U.S.C. §1182 (a)(10)(C)(1).