| As the world continues to get smaller and international | | | | customary residence prior to his or her removal but |
| travel more common, areas of the law once thought | | | | focuses not upon a child's domicile or legal residence |
| to be of primarily local jurisdiction are now turning out | | | | but rather where the child physically lived for an |
| to have international complications. Nowhere is this | | | | amount of time sufficient for acclimatization and which |
| more evident than in the area of family law. | | | | has a degree of settled purpose from the child's |
| Marriages between citizens of differing countries can | | | | perspective. In other words, where the child likely |
| be extremely beneficial and worthwhile, but when they | | | | considered its home. |
| break down the fight over child custody and visitation | | | | "Rights of custody,"" meanwhile, include rights relating |
| can quickly become quite complex. Simply serving a | | | | to the care of the person of the child and, in particular, |
| legal notice of a lawsuit on a party residing in a | | | | the right to determine the child's place of residence. |
| different country can be difficult and at times | | | | These rights may arise by operation of law or by |
| expensive. Often it requires familiarity with the Hague | | | | reason of a judicial or administrative decision, or by |
| Convention on the Service Abroad of Judicial and | | | | reason of an agreement having legal effect under the |
| Extra-Judicial Documents in Civil and Commercial | | | | law of that State. |
| Matters, something few attorneys have any | | | | After the aggrieved parent has shown the court that |
| experience with. Further complications develop when | | | | the child was wrongfully abducted, the burden shifts to |
| one spouse decides to take matters into their own | | | | the opposing parent to show by clear and convincing |
| hands and simply disappears with the child, returning to | | | | evidence why the child should not be returned. Under |
| their homeland. | | | | the Convention, it is an affirmative defense if: |
| In order to provide a remedy for such "abductions," the | | | | (1) the person seeking return of the child consented to |
| international community came up with the Hague | | | | or subsequently acquiesced in the removal or retention; |
| Convention on the Civil Aspects of International Child | | | | (2) the proceeding was commenced more than one |
| Abduction. This Convention aims to protect children | | | | year after the removal of the child; |
| internationally from the harmful effects of their | | | | (3) the children have become well-settled in their new |
| wrongful removal or retention and to establish | | | | environment; and |
| procedures to ensure their prompt return to the State | | | | (4) there is a grave risk that the return of the children |
| (i.e. country) of their habitual residence. As of this date, | | | | would expose them to physical or psychological harm. |
| some 55 countries are signatories to the Convention. | | | | Court decisions on this matter are quite clear that |
| Some of these countries, however, are more than | | | | acquiescence under the Convention requires either an |
| reluctant to comply with the terms of the Convention | | | | act or statement with the requisite formality, such as |
| despite the fact that they have signed it. | | | | testimony in a judicial proceeding; a convincing written |
| Utilization of the Convention is fairly straightforward. | | | | enunciation of rights; or a consistent attitude of |
| Each country that has signed the Convention has a | | | | acquiescence over a significant period of time. |
| Central Authority to which an aggrieved parent may | | | | Acquiescence has been held to be a question of |
| apply for assistance. An aggrieved parent is one | | | | subjective intent. Many lawsuits in international child |
| whose child has been taken. That Central Authority will | | | | abduction matters focus upon whether or not one of |
| contact the Central Authority of the country to which | | | | the parents agreed or consented to the removal of |
| the child has been taken. An attempt will then be made | | | | the child. |
| to locate the child and obtain a voluntary return. In the | | | | Parents should be aware of the "one year" defense. |
| event that the parent refuses to return the child, a | | | | Commencement of proceedings, as used in Article 12 |
| lawsuit is brought on behalf of the aggrieved parent to | | | | of the Convention, means the filing of a civil petition for |
| compel the return of the child. | | | | relief in any court which has jurisdiction in the place |
| As an example, if a child was taken from her | | | | where the child is located at the time the petition is |
| residence in the state of Iowa and brought to London, | | | | filed. Once the location of the child is known, the clock |
| England by her mother, the child's father would contact | | | | starts to run. However, Article 12 goes on to state that |
| the U.S. Central Authority, the U.S. Department of | | | | "even where the proceedings have been commenced |
| State, Office of Children's Issues. They would assist | | | | after the expiration of the period of one year..., [the |
| the father in completing a Petition for Return of Child | | | | court] shall also order return of the child, unless it is |
| which would be filed with the Central Authority of | | | | demonstrated that the child is now settled it its new |
| England and Wales, the International Child Abduction | | | | environment." Hague Convention, Article 12. As for this |
| and Contact Unit. The authorities in England would | | | | "well settled" exception, it should be noted that the |
| attempt to get the mother to return to Iowa with the | | | | court retains the discretion to order the children |
| child. If they were unsuccessful, then the father would | | | | returned even if an exception applies. Nor is a court |
| bring a lawsuit against the mother in the English court | | | | obligated to take into account the child's wishes. |
| system. The same process would be used if the child | | | | Finally, Article 13(b) of the Hague Convention allows a |
| was resident in London, England and was wrongfully | | | | court to deny return of a child to the country of |
| brought to the State of Iowa by her father: the mother | | | | habitual residence if "there is a grave risk that his or |
| would contact the Central Authority in London which | | | | her return would expose the child to physical or |
| would in turn contact the Central Authority in the United | | | | psychological harm or otherwise place the child in an |
| States. If unsuccessful, she would file a lawsuit in the | | | | intolerable situation." Generally speaking, such a risk |
| US court where the child was located. | | | | arises in two situations: (1) imminent danger such as |
| Once a lawsuit is filed, in order to win a case of | | | | war, famine, or disease; or (2) when there is likely to |
| wrongful removal or retention under the Hague | | | | be serious abuse or neglect and the court in the |
| Convention, the aggrieved parent must show that: | | | | country of habitual residence, for whatever reason, |
| (1) the child was "habitually resident" in the country | | | | may be incapable or unwilling to give the child |
| before being removed; | | | | adequate protection. As a parent, you will be expected |
| (2) the child's removal was in breach of the "rights of | | | | to provide compelling evidence that the child will in all |
| custody" of "a person, an institution or any other body;" | | | | likelihood be in danger if returned. |
| and | | | | As should be no surprise, international child abduction |
| (3) that those rights "were actually exercised at the | | | | matters are extremely complex, both in legal |
| time of removal or would have been so exercised in | | | | substance and procedure. In the unfortunate event that |
| the absence of his removal." See Hague Convention, | | | | your child has been abducted, you should contact an |
| Art. 3. | | | | attorney experienced in the area of international child |
| As one would expect, there has been a significant | | | | abduction immediately. Time is of the essence, and a |
| amount of jurisprudence (legal theory) develop as it | | | | quick response can often be the difference between |
| concerns the above terms. Courts have concluded | | | | a voluntary return of the child and a long, expensive |
| that the term "habitually resident" refers to a child's | | | | court battle in a foreign country. |