The Hague Convention on the Civil Aspects of International Child Abduction and The UCCJEA Ronald W. Nelson AAML, IAML Nelson & Booth 11900 West 87 th Street Parkway Shawnee Mission, Kansas kansas-divorce.com
The Hague Convention on the Civil Aspects of International Child Abduction, done 25 October 1980
Parental Abduction Significant percentage of abductions are family abductions. Parental abduction often occurs when the parents separate or begin divorce proceedings. One parent removes or retains the child from the other seeking an advantage in expected or pending childcustody proceedings. Fear of losing the child in expected or pending childcustody proceedings. A parent may refuse to return a child when their time at the end of parenting time or flee to prevent that time.
Motivation and Results 80% of parental abductions motivated by revenge. 15% of family abducted children experience use of force or violence in abduction process Severe emotional problems for children due to break in bond with left-behind parent Children are often told that the left-behind parent is dead does not love them is a bad person
Parental child abductions may be within the same city, within the state region or within the same country, or may be international. 1999: 53% percent of family abducted children were gone less than one week 21% were gone one month or more. NISMART National Family Abduction Report, October 2002
Child Abduction Growing problem National and International Abductions both incoming and outgoing ~ 1,100 open cases with the US Department of State ~ 450 new cases annually at NCMEC
The Hague Convention on the Civil Aspects of International Child Abduction Adopted by the Hague Conference on Private International Law on October 25, 1980. The United States ratified the Convention on April 29, 1988. The Convention became effective July 1, 1988. United States enabling legislation the International Child Abduction Remedies Act ( ICARA ), 42 U.S.C. 11601 et. seq.
Purpose The purpose of the Hague Convention on the Civil Aspects of International Child Abduction is to: insure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence. Preamble to the Hague Convention. The Convention seeks to protect children internationally from the harmful effects 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 the rights of access.
The Convention: Primarily Jurisdictional Does not provide any substantive rights. Does not allow the court in which a Hague Convention action is filed to consider the merits of any child custody issues. Drafted with the intent to remove forever the incentive for a parent to flee across borders to obtain a favorable ruling. Establishes a procedure for the return.
Application The Convention applies to any child who was habitually resident in a contracting State immediately before any action constituting a breach of custody or access rights.
Child The Convention shall cease to apply when the child attains the age of 16 years. Hague Convention, Article 4.
Contracting State A contracting State is only one of those countries that has ratified or acceded to the terms of the Convention. Original ratifying Member States may accept or reject accessions (conditions to adoption) by non-member States. Applies only between contracting States. Both States must be signatories.
The Convention is in force between the United States and 55 other countries, plus administrative divisions. Argentina (June 1991) Australia (July 1988) Austria (October 1988) Bahamas (January 1994) Belgium (May 1999) Belize (November 1989) Bosnia & Herzegovina (December 1991) Brazil (December 2003) Bulgaria (January 2005) Burdino Faso (November 1992) Canada (July 1988) Chile (July 1994) China [Hong Kong S.Admin.Region (Sept 1997); Macau (March 1999)] Columbia (June 1996) Croatia (December 1991) Czech Republic (March 1998) Cyprus (March 1995) Ecuador (April 1992) Finland (August 1994) Bulgaria (January 2005) France (July 1988) Germany (December 1990) Greece (June 1993) Honduras (June 1994) Hungary (July 1988) Iceland (December 1996) Ireland (October 1991) Israel (December 1991) Italy (May 1995) Luxembourg (July 1988) Macedonia [Frmr Yugoslav Rep] (Dec 1991) Malta (February 2003) Mauritius (October 1993) Mexico (October 1991) Monaco (June 1993) Netherlands (September 1990) New Zealand (October 1991) Norway (April 1989) Panama (June 1994) Poland (November 1992) Portugal (July 1988) Romania (June 1993) Slovak Republic (February 2001) Slovenia (April 1995) South Africa (November 1997) Spain (July 1988) Saint Kitts and Nevis (June 1995) Sweden (June 1989) Switzerland (July 1988) Turkey (August 2000) United Kingdom (July 1988)[Bermuda (March 1999); Cayman Islands (August 1998); Falkland Islands (June 1998); Isle Of Man (September 1991); Montserrat (March 1999)] Uruguay (September 2004) Venezuela (January 1997) Yugoslavia [Fed.Repb] (December 1991) Zimbabwe (August 1995)
Intention The Convention s primary intent is to preserve whatever status quo custody arrangement existed for the parties child prior to the time of the alleged wrongful removal or retention and to deter a parent from crossing international boundaries in search of a more sympathetic court.
Habitual Residence The Hague Convention mandates return of any child who was habitually resident in a contracting nation immediately before an action that constitutes a breach of custody or access rights.
Habitual Residence Habitual residence is not a technical term; it is a fluid term dependent on circumstances. There must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed, his purpose while settled may be for a limited period. Education, business or professional, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled. In re Bates, No. CA 122-89, High Court of Justice, Family Div, Royal Court of Justice, United Kingdom (1989)
Habitual Residence It should be understood as being the child s ordinary residence at the relevant time; in determining the child's habitual residence, the court should focus on the child, not the parents, and examine the past, not future intentions; and, for a particular residence to be considered habitual, there must be a degree of settled purpose. Sampson v. Sampson, 267 Kan. 175, 177, 975 P.2d 1211 (1999)
Habitual Residence A child has only one habitual residence. Determination is primarily factual. Shared consent. Habitual residence does not shift because the child is in the new country to visit with the other parent. Simple consent to their presence in another forum is not usually enough to shift it there. Rather, the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence, such as when there is effective agreement on a stay of indefinite duration. Mozes v. Mozes,, 239 F.3d 1067, 1081 (9th Cir. 2001).
Rights of Custody include rights relating to the care of the person of the child and in particular the right to determine the child s place of residence. Hague Convention, Article 5(a). Broad definition Determined by the law of the child s country of habitual residence May arise by operation of law, court order, or agreement of the parties There is no requirement that a custody order be in force at the time of the removal or retention. Similarly, even though custody rights may be conferred by court decree, the Convention does not mandate recognition of the terms of that decree. The Convention seeks to restore the factual rights of custody that existed before the child s removal.
Application for Assistance An application should be submitted as soon as possible after an abduction or wrongful retention has taken place. If an action is not instituted within one year, return is not mandated. May be direct filing or application through member country.
Central Authorities Every Hague signatory has a Central Authority to carry out duties specified by the Convention, including: Discover the whereabouts of wrongfully removed or retained children; Prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; Attempt to secure the voluntary return of the child or other amicable resolution; Provide information to others about the general character of the law of their State for application of the Convention; Facilitate institution of judicial or administrative proceedings to obtain return of the child. Facilitate the provision of legal aid and advice; Attempt to eliminate any obstacles to the application of the Convention.
Filing the Hague Case Case must be filed in member country to which child was wrongfully removed or retained. State and Federal courts have concurrent jurisdiction Venue is placed where the child is located.
Factors affecting court choice 1. Which court can hear the matter sooner? 2. Does either court have experience with Hague cases? 3. Is one more likely to treat the case as a substantive custody matter? 4. Does the person who has allegedly wrongfully removed or retained the child have a strong local influence that causes petitioner to believe the local court will be biased against him or her? 5. Does the attorney have experience litigating in federal court?
Convention pleading requirements The Convention does not set forth any specific pleading requirements other than that it be written in English
Practical pleading requirements 1. The child is under 16 years of age. (Article 4) 2. The child was habitually resident in a contracting state immediately before the breach of custody rights. (Article 4) 3. The petitioner has custody rights within the meaning of Articles 3 and 5(a). 4. At the time of the removal or retention, the petitioner was actually exercising custody rights, either jointly or alone, or would have done so but for the removal or retention. (Article 3(b)) 5. The respondent wrongfully removed the child from the child s country of habitual residence on [date] and has wrongfully retained the child in [state], since [date] in violation of Article 3. 6. The Convention is in effect between the child s country of habitual residence and the United States; 7. The court [state or federal] has jurisdiction under 42 U.S.C. 11603(a), and the child is located within the court s jurisdiction;
Notice of Proceedings The Convention does not include any requirements for notice of the anticipated hearing. ICARA requires that notice of the action is given in accordance with the applicable law governing notice in interstate child custody proceedings. In the United States, this means notice as required by the UCCJA or the UCCJEA or Habeas Corpus.
Notice Requirements A Hague Convention proceeding is summary and looks only to the issue of whether a child has been abducted from [his or her] country of habitual residence or wrongfully retained outside that country[,] [n]o hearing on the merits of a custody dispute is contemplated. The Hague Convention is a procedural treaty that seeks an expeditious determination of that jurisdiction in which substantive decisions should properly be made. The Convention contemplates a period of six weeks from the date of filing to the court s final decision.
Plaintiff s Burden of Proof The Plaintiff must prove by preponderance of the evidence : 1. that the child has been wrongfully removed or retained 2. from the child s habitual residence. Plaintiff need provide nothing else, unless in response to a defense.
Wrongful removal or retention Removal or retention of a child is wrongful whenever: 1. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and 2. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention, Article 3.
Wrongful removal or retention occurs when some action occurs in contravention to the rights of a person or institution having rights of custody under the laws of the State where the children were habitually resident. includes a removal or retention of a child before the entry of a custody order regarding that child. Need not be intentionally wrongful. Sufficient if the removal or retention deprives another joint holder of rights of the continued exercise of that right. is the act of keeping the child without the consent of the person who was actually exercising custody of the child.
Actual exercise of custody Does not refer to either legal or physical custody. Very little need be shown If there is a custody right, it s exercise is presumed. Burden of showing non-exercise is on Defendant.
Plaintiff s established case If the Petitioner establishes a wrongful removal of the child from the state of habitual residence has occurred, the children must immediately be returned to the state of habitual residence (not to the custodial parent), unless the Defendant proves an applicable defense
DEFENSES TO THE HAGUE CONVENTION CASE
Defense 1 The Petitioner was not actually exercising custody rights at the time of the removal or retention (by preponderance of evidence)
Defense 2 The Petitioner consented to or acquiesced in the removal or retention (by preponderance of evidence).
Defense 3 More than one year has passed from the time of wrongful removal or retention until the date of the commencement of judicial or administrative proceedings.
Defense 4 The child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the Petitioner and that it is appropriate to heed that objection (by preponderance of evidence).
Defense 5 There is grave risk that the child s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (by clear and convincing evidence).
Defense 6 The child s return would subject the child to violation of basic human rights and fundamental freedoms (by clear and convincing evidence).
Defenses Limited Applicable in narrow situations Do not give the court ability to determine custody issues Confined to situations promoting the purpose of the Convention
Evidentiary considerations The Convention provides for special rules for admission and consideration of evidence independent of the evidentiary standards set by member states. The Application for Assistance, as well as any documents attached to the application or submitted to or by the Central Authority are admissible. No legalization or other similar formalities may be required. The court may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
Even if a Defendant proves that one of the narrow exceptions to return applies, the Court always retains the power and discretion to order return. The court has an obligation to search out ways to return the child to it s State of habitual residence.
Fees and Expenses Any court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 42 USC 11607(3)
hcch.net
Resources National Center for Missing & Exploited Children www.missingkids.com US State Department, Office of Children s Issues www.travel.state.gov/family International Academy of Matrimonial Lawyers www.iaml.org ABA Family Law Section www.abanet.org/family
THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT UCCJEA
Reasons for updated Act Passage of the federal Parent Kidnapping Prevention Act in 1981 which prioritized home state jurisdiction. Growing differences between the states in interpretation of the uniform Act. Needed clarification of various provisions. Cumbersome registration provisions. Lack of a uniform enforcement provisions. An orderly method to determine modification jurisdiction.
Updated Home State Provisions The new Act gives prioritization to the home state as a ground for taking jurisdiction. The Act also prioritizes other jurisdictional bases. The Act clarifies that Emergency Jurisdiction is temporary only and does not constitute an independent ground for jurisdiction.
Home State Jurisdiction Home state is defined in the same manner as under the UCCJA, but is given priority over all other types of child-custody jurisdiction.
Child Custody Jurisdiction Priority Other bases for jurisdiction are only applicable if there is no home state (or the home state has specifically declined jurisdiction). Significant connections jurisdiction removes best interest criteria from jurisdictional analysis (it was confusing the legal determination). Removal of emergency jurisdiction as a primary basis for jurisdiction.
Emergency jurisdiction Clarifies emergency jurisdiction: Allows a court to take jurisdiction even though it is not the home state, if: the child is present in the state and has been abandoned, or is subjected to or threatened with mistreatment or abuse. An order issued by a court with emergency jurisdiction is temporary
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