The Civil Aspects of International Child Abduction

The Hague Convention of Oct. 25, 1980

I. History of the Convention

The number of international child abductions is increasing rapidly. According to the U.S. Department of State, from Oct. 1, 2007 through Sept. 30, 2008, there were 1,076 cases involving children who were wrongfully removed to or retained in countries outside of the United States.[1] Additionally, there were 344 cases involving children who were wrongfully removed to or retained in the United States.[2]

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ("Hague Treaty") is an international treaty that has become a powerful tool for the return of children wrongfully removed from their habitual place of residence. Approximately 70 nations have become contracting states ("Signatories to the Hague Treaty") since its inception.[3] These nations include notably Australia, New Zealand, South Africa, and countries in Europe, North, Central and South America.[4]   The United States became a contracting state in 1988 when Congress implemented the International Child Abduction Remedies Act (ICARA).[5]  

The Hague Treaty's underlying presumption is that wrongful removal or retention is harmful to the abducted child's welfare.[6]  

Its goals are twofold:

  1. to provide a mechanism for the prompt return of a child who is wrongfully removed or retained and
  2. to ensure that the rights of access and custody under the laws of one contracting state are respected in other contracting states.[7]  

II. Protocol for the Return of an Abducted Child

A. Is the Country of Relocation a Contracting State?
The Hague Treaty applies only to those nations that have become contracting states. Therefore, if a child has been wrongfully removed to or retained in a nation that is not a signatory to the Hague Treaty, another legal mechanism, if available, will be needed for the return of the child.

In 1993, Congress enacted complimentary legislation to the Hague Treaty called the International Parental Kidnapping Crime Act (IPKCA), which provides criminal penalties for parents who abduct children outside of the United States.[8]   While this legislation does not necessarily secure the return of the children, it penalizes the abducting parent.[9] The passage of this law was intended to fill the gap in U.S. law for children who had been abducted to non-Hague countries.[10]  
  
B. Involvement of Judicial or Administrative Authorities of a Contracting State
Under Article 11 of the Hague Treaty, the judicial or administrative authorities of a contracting state shall act expeditiously in proceedings for the return of children, defined as within six weeks from the date of the commencement of a Hague Treaty action.[11]  

In the United States, under ICARA, state and federal courts have concurrent original jurisdiction of Hague Treaty cases.[12]   Whichever forum the petitioner chooses, the court can only consider the removal claim, not the merits of the underlying custody case.[13]

Many practitioners who deal with international parental kidnapping cases recommend that a Hague action be filed in federal court because the court in which a Hague action is heard is not supposed to focus on the "best interests of the child" but rather the appropriate forum in which that issue should be addressed.[14] Federal court judges are better equipped to determine the latter issue whereas state court judges are more accustomed and may be more inclined to rule on the former issue.[15] 

Alternatively, a petitioner may choose to file a Hague action in state court because only state courts may hear family law issues.[16] Therefore, a Hague action may be filed as part of an ongoing state family law action.[17] The state court may then proceed to make a subsequent custody determination upon the resolution of the Hague action.[18]  

Regardless of which forum the Petitioner chooses, it is important for the attorney to be familiar with the rules that are applicable to that court.[19]  

Pursuant to the language of the Hague Treaty, removal or retention of a child is considered wrongful where "it is in breach of rights of custody attributed to a person ... under the law of the state in which the child was habitually residing immediately before the removal or retention," and "at the time of removal or retention those rights were actually exercised ... or would have been exercised but for the removal or retention."[20] The Hague Treaty ceases to apply when a child attains the age of 16 years.[21]  

C. Application to a Contracting State's Central Authority
Each contracting state has a central authority whose duties are to execute seven requirements set forth in Article 7 of the Hague Treaty to promote the return of the abducted child.[22] Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply to either the central authority of the child's habitual residence or to that of any other contracting state for assistance in securing the return of the child.[23] Once the central authority receives an application, it shall immediately transmit the application to the central authority of the contracting state where the child is currently located.[24] Thereafter, both central authorities shall collaborate to effectuate the prompt return of the abducted child and to secure the objectives of the Hague Treaty.[25] This may include the initiation of judicial or administrative proceedings.

III. Issues with Enforcement of the Hague Treaty

A. The Defenses of Articles 12, 13 and 20
While the Hague Treaty has secured the prompt return of many children over the years, it does not guarantee the return of every abducted child if the Respondent can establish that one of five certain conditions exists.

Under Article 12, a judicial or administrative authority shall order the return of the child even if the proceedings have commenced after the expiration of one year, unless it is demonstrated that the child is now settled in his/her new environment.[26]  

Article 13 sets forth three additional conditions under which the return of the child may not be ordered. The judicial or administrative authority of the requested contracting state is not bound to order the return of the child if there is opposition establishing the following: (a) custody rights were not being exercised at the time of removal or retention, or there was consent or acquiescence to the removal or retention; or (b) there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.[27] The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to his being returned and has attained an age and degree of maturity at which it is appropriate to take into account his or her wishes.[28]   Article 20 provides an affirmative defense based on public policy.[29]  

B. Brief Overview of Objections to Raise Against the Defenses[30]
ICARA indicates that the Articles 12, 13 and 20 defenses should be construed narrowly.[31] Furthermore, pursuant to Article 18, even if one of the defenses exists, it is still at the court's discretion whether to return the child.[32]

The Article 12 defense must be proven by a preponderance of the evidence and cannot be used if proceedings started within one year of the abduction. Therefore, it behooves the petitioner to file an action as soon as possible after the abduction occurs. Furthermore, the U.S. State Department's Public Notice 957 states 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."

The Respondent must prove the Article 13(a) defense by a preponderance of the evidence. This defense depends on the petitioner's subjective intent. The consent defense deals with the petitioner's behavior before the removal or retention whereas the acquiescence defense turns on the petitioner's subsequent agreement to or acceptance of the removal or retention.

In regard to the "physical or psychological harm" Article 13(b) defense, the respondent must prove this defense by clear and convincing evidence. Many courts will deny the return of the child when the danger is "grave" or "severe" and not just "serious."

In regard to the "intolerable situation" Article 13(b) defense, the Respondent must also prove this defense by clear and convincing evidence. A thorough evaluation should be conducted of the people and circumstances in the child's life in his or her country of habitual residence. Courts have deemed that an "intolerable situation" does not include a home in which money is in short supply, or where educational and other opportunities are more limited than in the country of relocation. Some courts have established a bright-line rule that an "intolerable situation" is one in which a custodial parent sexually abuses the child.

The "age and degree of maturity" defense must be proven by a preponderance of the evidence. The Hague Treaty does not define what an appropriate age is. However, courts will most likely not give a child's objection much weight if it seems to be tainted.

The respondent must prove the Article 20 defense with clear and convincing evidence. This defense is rarely used and has never been successfully invoked in the United States.

C. The Use of Law Enforcement for the Retrieval of the Abducted Child[33]
Whether state or federal law enforcement is used to retrieve the abducted child, it is important that the intervention of such law enforcement does not traumatize the child. It can be devastating for a child to see his or her parent arrested and taken away. Therefore, attorneys who are involved in Hague cases may want to contact organizations such as the National Center for Missing and Exploited Children, which can coordinate the efforts of law enforcement while making sure that the abducted child is shielded from the law enforcement's intervention.

According to the National Center for Missing and Exploited Children, it is typically more helpful to work with federal law enforcement since it is sometimes difficult to pinpoint the abducting parent and abducted child's location. However, the National Center for Missing and Exploited Children works with law enforcement on various levels and uses the agency that will be most helpful based on the specific facts of the case.

D. Non-Compliance of Some Contracting States[34]
In its annual report, the U.S. Department of State lists contracting states that have not complied or demonstrated patterns of noncompliance with the terms of the Hague Treaty. The following descriptions of noncompliance and patterns of noncompliance are not necessarily unique to the contracting states below but are models of weaknesses that may be exhibited by any contracting state's judiciary and/or central authority.

Brazil, Chile, Greece, Mexico, Slovakia, Switzerland and Venezuela were on the list of countries exhibiting patterns of noncompliance in 2009. The U.S. Department of State noted problems in these countries such as:

  1. delays,
  2. favoritism towards one parent (i.e., its citizen),
  3. improperly making custody determinations in Hague Treaty cases,
  4. the improper use of Articles 12 and 13 of the Hague Treaty, and
  5. unwarranted psychological evaluations.

IV. Cases in the Media

A. The Case of Elian Gonzales[35]
In 2000, Elian Gonzales and his mother, who did not survive the trip, emigrated from Cuba to the United States. There was controversy as to whether Elian should be returned to his father in Cuba or remain in the United States with his maternal relatives. Cuba was not a contracting state to the Hague Treaty. Nonetheless, the United States applied the Hague Treaty to Elian's case and determined that he should be returned to his father in Cuba.

Elian's case illustrates that a country of relocation, if a contracting state, will most likely apply the Hague Treaty even if the child's country of habitual residence is not a contracting state. However, the reverse is not necessarily true, i.e., if the country of habitual residence is a contracting state, but the country of relocation is not, it is unlikely that the Hague Treaty will apply.

B. The Case of Sean Goldman[36]
In 2004, when he was four years old, Sean Goldman's mother absconded with him to Brazil. In 2008, his mother died, leaving Sean in the care of his mother's Brazilian husband, who encouraged him to call him "Daddy" while referring to Sean's father as "the American." In 2009, Brazilian courts ordered a psychological evaluation of Sean. The evaluation revealed that Sean's Brazilian custodians were inflicting parental alienation on him and that he was emotionally fragile. Although the report also indicated that Sean expressed ambivalent views about potentially returning to the United States, he was returned to his father in the United States on Dec. 24, 2009.

V. Conclusion

International child abduction is much more than an issue involving two countries. It is a global human rights problem. You can help return abducted children to their home countries by joining the U.S. Department of State's Attorney Network, which consists of attorneys who, on a pro bono or reduced fee basis, assist left-behind parents in foreign countries whose children have been abducted to the United States.[37]

Notes

  1. U.S. Department of State, 2009 Compliance Report, Pub. L. No. 105-277, http://travel.state.gov/family/abduction/resources/resources_4308.html.
  2. Id.
  3. U.S. Department of State, 2009 Compliance Report, Pub. L. No. 105-277, http://travel.state.gov/pdf/2009HagueAbductionConventionComplianceReport....
  4. Id.
  5. 42 U.S.C.  § 11601 et seq.
  6. Id.
  7. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 1.
  8. 55 U.S.C.  § 1204.
  9. Id.
  10. National Report for the Common Law Judicial Conference on International Child Custody. Sept. 17-21, 2000, http://travel.state.gov/family/abduction/resources/resources_543.html?cs....
  11. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 11.
  12. 42 U.S.C.  § 11603.
  13. National Report for the Common Law Judicial Conference on International Child Custody. Sept. 17-21, 2000, http://travel.state.gov/family/abduction/resources/resources_543.html?cs....
  14. Kilpatrick Stockton LLP. Litigating International Child Abduction Cases Under the Hague Convention 64 (National Center for Missing and Exploited Children 2007)
  15. Id.
  16. National Report for the Common Law Judicial Conference on International Child Custody. Sept. 17-21, 2000, http://travel.state.gov/family/abduction/resources/resources_543.html?cs....
  17. Id.
  18. Id.
  19. Kilpatrick Stockton LLP. Litigating International Child Abduction Cases Under the Hague Convention 64 (National Center for Missing and Exploited Children 2007).
  20. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 3.
  21. Id., art. 4.
  22. (a) To discover the whereabouts of a child who has been wrongfully removed or retained;
    (b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
    (c) To secure the voluntary return of the child or to bring about an amicable resolution of the issues;
    (d) To exchange, where desirable, information relating to the social background of the child;
    (e) To provide information of a general character as to the law of the State in connection with the application of the Convention;
    (f) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
    (g) Where the circumstances so require, to provide or facilitate the provision of legal aid or advice, including the participation of legal counsel and advisers;
    (h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
    (i) To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
  23. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 8.
  24. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 7.
  25. Id.
  26. Id., art. 12.
  27. Id., art.13.
  28. Id.
  29. Id., art. 20.
  30. Kilpatrick Stockton, LLP. Litigating International Child Abduction Cases Under the Hague Convention 38-59 (National Center for Missing and Exploited Children 2007)
  31. 42 U.S.C.  § 11601(a)(4)
  32. The provisions of this chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.
  33. "Department of State's Office of Children's Issues, http://www.travel.state.gov/family/abduction/abduction_580.html; Telephone message from Ernie Allen, President and CEO, National Center for Missing and Exploited Children (April 2, 2010)."
  34. U.S. Department of State, 2009 Compliance Report, Pub. L. No. 105-277, http://travel.state.gov/pdf/2009HagueAbductionConventionComplianceReport....
  35. http://cubanet1.securesites.net/CNews/y00/jan00/10e25.htm.
  36. Patricia Apy, Goldman Case Timeline, International Academy of Matrimonial Lawyers United States Chapter Meeting, Feb. 4, 2010.
  37. http://travel.state.gov/pdf/AttorneyNetworkFlyer.pdf.

Marlene Eskind Moses MARLENE ESKIND MOSES is the principal and manager of Moses & Townsend PLLC, a family and divorce law firm in Nashville. She is the current president of the American Academy of Matrimonial Lawyers and the Tennessee Supreme Court Historical Society. She has held prior presidencies with the Tennessee Board of Law Examiners and the Lawyers Association for Women. She has also served as vice president for the United States Chapter of the International Academy of Matrimonial Lawyers and is the current vice president for the National Board of Legal Specialty Certification. The Tennessee Commission on Continuing Legal Education & Specialization has designated Moses as a Family Law Specialist; she is Board Certified as a Family Law Trial Specialist. Moses is a new columnistt for the Tennessee Bar Journal. Jessica J. Uitto contributed to this article.

Co-author JESSICA J. UITTO is an associate at Moses & Townsend PLLC, a family and divorce law firm in Nashville. She also does pro bono work for the family division of the Legal Aid Society in Nashville, and is a member of the Nashville Coalition Against Domestic Violence. Uitto graduated from the University of Pennsylvania with a B.A. in Women’s Studies and a minor in Psychology. In 2008, she graduated from Pepperdine University School of Law with a law degree and a Certificate of Dispute Resolution from the Straus Institute. She is licensed to practice law in Tennessee, Pennsylvania and New Jersey.