As the world continues to get smaller and international travel more common, areas of the law once thought to be of primarily local jurisdiction are now turning out to have international complications. Nowhere is this more evident than in the area of family law.
Marriages between citizens of differing countries can be extremely beneficial and worthwhile, but when they break down the fight over child custody and visitation can quickly become quite complex. Simply serving a legal notice of a lawsuit on a party residing in a different country can be difficult and at times expensive. Often it requires familiarity with the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters, something few attorneys have any experience with. Further complications develop when one spouse decides to take matters into their own hands and simply disappears with the child, returning to their homeland.
In order to provide a remedy for such "abductions," the international community came up with the Hague Convention on the Civil Aspects of International Child Abduction. This Convention aims 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 (i.e. country) of their habitual residence. As of this date, some 55 countries are signatories to the Convention. Some of these countries, however, are more than reluctant to comply with the terms of the Convention despite the fact that they have signed it.
Utilization of the Convention is fairly straightforward. Each country that has signed the Convention has a Central Authority to which an aggrieved parent may apply for assistance. An aggrieved parent is one whose child has been taken. That Central Authority will contact the Central Authority of the country to which the child has been taken. An attempt will then be made to locate the child and obtain a voluntary return. In the event that the parent refuses to return the child, a lawsuit is brought on behalf of the aggrieved parent to compel the return of the child.
As an example, if a child was taken from her residence in the state of Iowa and brought to London, England by her mother, the child's father would contact the U.S. Central Authority, the U.S. Department of State, Office of Children's Issues. They would assist the father in completing a Petition for Return of Child which would be filed with the Central Authority of England and Wales, the International Child Abduction and Contact Unit. The authorities in England would attempt to get the mother to return to Iowa with the child. If they were unsuccessful, then the father would bring a lawsuit against the mother in the English court system. The same process would be used if the child was resident in London, England and was wrongfully brought to the State of Iowa by her father: the mother would contact the Central Authority in London which would in turn contact the Central Authority in the United States. If unsuccessful, she would file a lawsuit in the US court where the child was located.
Once a lawsuit is filed, in order to win a case of wrongful removal or retention under the Hague Convention, the aggrieved parent must show that:
(1) the child was "habitually resident" in the country before being removed;
(2) the child's removal was in breach of the "rights of custody" of "a person, an institution or any other body;" and
(3) that those rights "were actually exercised at the time of removal or would have been so exercised in the absence of his removal." See Hague Convention, Art. 3.
As one would expect, there has been a significant amount of jurisprudence (legal theory) develop as it concerns the above terms. Courts have concluded that the term "habitually resident" refers to a child's customary residence prior to his or her removal but focuses not upon a child's domicile or legal residence but rather where the child physically lived for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child's perspective. In other words, where the child likely considered its home.
"Rights of custody,"" meanwhile, 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. These rights may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
After the aggrieved parent has shown the court that the child was wrongfully abducted, the burden shifts to the opposing parent to show by clear and convincing evidence why the child should not be returned. Under the Convention, it is an affirmative defense if:
(1) the person seeking return of the child consented to or subsequently acquiesced in the removal or retention;
(2) the proceeding was commenced more than one year after the removal of the child;
(3) the children have become well-settled in their new environment; and
(4) there is a grave risk that the return of the children would expose them to physical or psychological harm.
Court decisions on this matter are quite clear that acquiescence under the Convention requires either an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written enunciation of rights; or a consistent attitude of acquiescence over a significant period of time. Acquiescence has been held to be a question of subjective intent. Many lawsuits in international child abduction matters focus upon whether or not one of the parents agreed or consented to the removal of the child.
Parents should be aware of the "one year" defense. Commencement of proceedings, as used in Article 12 of the Convention, means the filing of a civil petition for relief in any court which has jurisdiction in the place where the child is located at the time the petition is filed. Once the location of the child is known, the clock starts to run. However, Article 12 goes on to state that "even where the proceedings have been commenced after the expiration of the period of one year..., [the court] shall also order return of the child, unless it is demonstrated that the child is now settled it its new environment." Hague Convention, Article 12. As for this "well settled" exception, it should be noted that the court retains the discretion to order the children returned even if an exception applies. Nor is a court obligated to take into account the child's wishes.
Finally, Article 13(b) of the Hague Convention allows a court to deny return of a child to the country of habitual residence if "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." Generally speaking, such a risk arises in two situations: (1) imminent danger such as war, famine, or disease; or (2) when there is likely to be serious abuse or neglect and the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. As a parent, you will be expected to provide compelling evidence that the child will in all likelihood be in danger if returned.
As should be no surprise, international child abduction matters are extremely complex, both in legal substance and procedure. In the unfortunate event that your child has been abducted, you should contact an attorney experienced in the area of international child abduction immediately. Time is of the essence, and a quick response can often be the difference between a voluntary return of the child and a long, expensive court battle in a foreign country.
For additional information concerning International Child Abduction, please see the U.S. Department of State, Office of Children's Issues: http://www.travel.state.gov/abduction/abduction_580.html
For assistance in locating qualified lawyers, please see http://www.critellilaw.com
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