When most people hear the words “child abduction” they think of horrifying local news stories, ‘Amber alerts,’ or the plot of a film or novel. That could never, ever, ever happen to my precious child, you tell yourself. Never.
Flash forward to divorce and a contentious custody battle, and next thing you know your child has flown overseas with your ex, without giving you any notice or providing details about a return trip. Out of nowhere you find yourself in that very position you never thought possible.
What do you do? Can you do anything? Do you call a lawyer? The police? Do you fly overseas yourself to try to remedy the situation?
Here we discuss the ins and outs of international child abduction; we’ll define it, discuss the law, explain what to do if it happens to you, and finally provide tips on how to prevent this from happening in your case.
International Child Abduction Defined
When we think of child abduction, we often think of a bad guy in sketchy van somehow swooping up a child and carting him off somewhere. In reality, child abduction can take several forms, and the ‘bad guy’ is often the parent.
One form of international child abduction is where the child is taken to another country; this is called removal. The other form, wrongful retention, results when one parent keeps the child in another country after a legitimate custodial or visitation period.
Now how do you prove that removal happened? What if the ‘abducting’ parent says it was a permissible removal? The Hague Convention governs international child abduction and has set forth standards to clearly define what constitutes a true international child abduction.
The Law: The Hague Convention
The Hague Convention has been adopted by 85 foreign states and countries, including the United States. If the child was moved to a country that participates in the Convention, that country will cooperate in returning the child pursuant to the standards set forth in the Convention.
The most important law with regard to international child abduction is the Hague Convention on the Civil Aspects of International Child Abduction. This portion of the Convention specifically deals with the return of a child and the enforcement of custodial rights. It sets forth certain standards that must be met for the Hague Convention to apply.
First, the parent must prove that the country of origin was the child’s ‘habitual residence.’
What is that? Good question (with no good answer). Unfortunately the Hague Convention has not defined the term habitual residence. What our federal courts have decided is that ‘habitual residence’ means ‘ordinary residence’. And ‘ordinary residence’ means ‘customary residence prior to removal.’ Not very clear, huh?
Sometimes this is an easy thing to prove. Other times it can be difficult to determine what a child’s habitual residence is; a child may have dual citizenship, or have spent a significant amount of time in more than one country. In the tough cases the ‘abducting’ parent may argue that the child has a habitual residence in more than one country.
Next the parent has to prove that the move (or the wrongful retention) was against someone else’s custody rights. This is easy when there already is a court order or agreement in place with regard to custody. That controlling legal document that discusses your custody arrangement should explain the custodial and visitation rights of each parent.
But what if your case is still pending? Or there simply is no custody order in place?
Don’t fret – in those situations the Hague Convention essentially gives the proper court rights of custody and simply moving the child outside of the court’s jurisdiction is considered abduction.
Finally, the parent will have to prove that he or she in fact was exercising custody rights at the time of the abduction. This essentially means that the parent who brings the action under the Hague Convention must have spent some amount of time with the child before the abduction occurred. If the parent had moved and not been in contact with the child in some time, that parent would not be permitted to bring an abduction action under the Convention.
If a parent succeeds in proving the three elements we have mentioned above, then the habitual country and the country where the child was removed to will coordinate the safe return of the child.
As a side note, if your child has been removed to a country that has not adopted the Hague convention, the process by which you can seek to have the child returned will be dependent upon any treaties that the United States has with that country. The process described above only applies when a child has been removed from a country that has adopted the Hague convention to a country that has adopted the Hague Convention; both countries must participate.
Defenses to the Hague Convention
Even if a parent is successful in proving the required elements, the parent accused of abduction still has the right to raise certain defenses. There are four recognized defenses under the Convention:
- That returning the child would expose the child to harm or place the child in an intolerable situation.
- That returning the child would violate fundamental principles of human rights and fundamental freedoms.
- That the action was not commenced within one year of the wrongful removal or retention.
- That the complaining party either consented to the wrongful removal or retention or he or she was not exercising custody rights at the time.
Of course, the parent raising these defenses has the burden of proof; they have to actually provide compelling evidence of the defense raised.
Logistics – How it Works
Pursuant to the Hague Convention, each participating country is required to designate a ‘Central Authority’ to handle Convention issues. In the United States, the central authority is the State Department.
The parent seeking the child’s return would start the process by contacting the State Department to report the removal and begin the petition process. The Hague Convention requires the petitioning party to complete an application that must be filled out in both English and French, and all documents submitted with the application need to be translated into the language of the country where the child is.
Once the application has been completed the State Department will send it to the central authority of the country where the child is located, and that central authority will begin an investigation and take necessary action to ensure the safety of the child. After the conclusion of the investigation there will be a hearing using the laws of the country the child has been removed to.
It is important to note that the Convention does not contemplate the best interests of the child. The proper court to issue an order on custody will certainly make an order in the best interests of the child, but the Convention simply provides the mechanism to return a child to the country of habitual residence.
Tips for Preventing Abduction
As you can imagine, actually going through the process of petitioning to have your child returned under the Hague Convention can not only be harrowing but also very lengthy. By the time you complete your application, an investigation takes place, and subsequently a hearing is held, you may have been without your child for months. If a parent fears that international child abduction could happen, there are certain tips that can help prevent this nightmare from transpiring.
First, work towards getting an order on custody in place. If you know 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 not only clearly state the custodial rights of each parent, it should contemplate out of state or out of country travel and which parent is to have possession of 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 extra precaution the parent fearing abduction should keep as much information about the other parent as possible; try to obtain copies of (or the numbers associated with) a drivers 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 ex parte order on the basis of a parent attempting to remove a child from the court’s jurisdiction.
While hopefully you will 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 is in place that allows for your child’s safe return.