Experience With Complex Hague Convention Cases
The law on international child abduction is governed by the Hague Convention, an international convention designed to make sure that questions involving custody and parenting time are decided in the country that has been the child’s home. Under the Hague Convention, a child who has been abducted must almost always be sent back home. The countries that have signed the convention have agreed that their own courts will generally return a child to the country he or she was abducted from without conducting a lengthy legal investigation into the merits of the case. However, as might be expected, the courts do retain limited discretion in certain rare circumstances to allow the child to stay in the new country. In cases involving children from countries that are not party to the convention, our courts must act in accordance with the welfare of the individual child, and a child will be returned to the country where he or she was abducted only if the court considers that the return is in the child’s best interests pursuant to Arizona law.
Defining Child Abduction
Child abduction is usually thought of by the general population in extreme terms. If a parent who has had limited contact with a child abducts that child and takes him or her from the country where the child has spent all or most of his or her life to another country, the consensus would be that there has been an abduction. However, most cases are much less clear-cut. The convention sets out strict rules about what is and is not an abduction.
The convention defines an abduction as the wrongful removal of a child from the child’s place “of habitual residence” or the wrongful “retention” of a child away from his or her place of habitual residence, in violation of a parent’s “rights of custody.”
What Is An Unlawful Removal Or Retention?
A child is removed, or abducted, when one parent takes the child out of the child’s habitual residence or home country without the permission of the other parent. If the child has left the home country with the other parent’s permission, but the child is not returned as agreed upon, then the child has been “unlawfully retained” by the other parent. This arises when, for example, one parent takes the child out of the country with permission from the other parent in the home country, but while out of the country, the parent with the child decides to permanently stay abroad. Another example that happens quite frequently is when the parent in the home country allows the child to visit a parent living in another country, but the parent abroad refuses to return the child at the end of the visit. Both of these situations involve unlawful retention’s of the child and both may be considered abductions.
What Is Your Child’s Habitual Residence?
The question of “habitual residence” is usually easy to establish. A person, including a child, is habitually resident in the country in which he or she lives, even if he or she moved there only recently. There are situations, however, in which the child’s habitual residence may not be clear, such as when the child was in the process of moving home from one country to another at the time of the removal or if the family was living in a country temporarily. In more complicated but rare cases, it may be impossible to identify a particular country as the child’s habitual residence.
The law is clear that a child’s habitual residence cannot be changed as the result of an abduction, so the move to a new country following an abduction does not lead to the child changing habitual residence.
A parent’s right of custody is the right to make legal decisions concerning the child’s health, education and welfare. It is not just the day-to-day decisions involved in raising a child, but rather, more long-term questions. Each country has its own set of laws defining custody. Thus, there is a thorough examination as to how a country defines custody and whether there were any rights existing at the time of the removal of the child.
Under Arizona law, a custody right is established by default if the parties’ child or children were born during the marriage unless, under rare circumstances, a child has been adopted by another parent or third party.
A father who was unmarried at the time his child was born must establish his rights either in court or by agreement of the mother. Rights are not automatically acquired. If the mother removes the child from the country and the unmarried father has not yet acquired or applied for custody rights, the father can only demand that the child be returned under Hague Convention laws in very unusual circumstances, because it does not matter how much time he spent with the child or financially supports the child if he has not established his rights. If the unmarried father has filed a petition to establish custody or visitation, but the Arizona court has not yet entered a custody or parenting time order, the unmarried father is entitled to ask that the foreign court return the child to allow the Arizona courts or the home country to consider the father’s application for custody rights.
Children 16 And Older
The convention does not apply to children 16 or older. Even if a child was abducted when he or she was only 15, if the child is 16 or older when an Arizona court or court in the home state is asked to consider the case, the convention does not apply.
What You Need To Do
If your child has been abducted and you believe that you may have a claim under the Hague Convention, you cannot handle your case alone. You should seek the advice of an attorney who is familiar with Hague Convention cases. I have experience handling these types of cases and was even featured in the Arizona Republic for one notable case several years ago involving a mother who illegally took her two children from Germany to the United States in blatant violation of the father’s rights. You cannot sit on your rights and should apply for the return of your child under the convention immediately.
Abduction proceedings under the Hague Convention are required to be heard within a certain period of time (approximately six weeks) and generally involve limited evidentiary rules, which means that it is easier to present documents for a judge to review. When a child has been abducted, and the parent seeking the child’s return under the convention has filed an application less than one year after the abduction, the court in the new country must order the return of the child unless one of the defenses outlined in the convention has been established. The rules are different if the application was made more than a year after the abduction. If the parent who removed the child can demonstrate that the child is now “well settled” in the new country, that parent may have a claim to retain the child. The question of how well settled the child is will be a matter for the court to decide, and the court’s approach is likely to be influenced by the reasons for the delay. The court is less likely to find that settlement has occurred if the opportunity for settlement has arisen only because the abducting parent has been concealing the child’s whereabouts. If it can be shown that the parent has been concealing his or her and the child’s location, the time period may be tolled (or stopped), thereby keeping the time limit within the one-year period that requires the return of the child with no consideration of whether the child is well settled.
According to the Hague Convention on the Civil Aspects of International Child Abduction, art. 13, 19 I.L.M. 1501, 1502-03 (1980), if there is no delay in making the application, there are three arguments or defenses that an abducting parent can raise to prevent the return of the child once the fact of the abduction has been established.
- Consent or acquiescence — If the parent seeking the return of the child at some time gave permission for the child to move to another country or made it clear that he or she accepted that the child would be moving to another country, the removal may be granted. Evidence of the consent or acquiescence must be clear and convincing, however, or it will not be enough to show that the parent left behind did not make much or any fuss when he or she found out.
- Grave risk of physical or psychological harm or an intolerable situation — If there is a “grave risk” such that return would expose the child to physical and/or psychological harm or otherwise place the child in an intolerable situation, the removing parent may prevail. In Arizona and most other states, it is difficult to establish this defense. A situation representing a grave risk would be returning the child to a country engaged in civil war or similar type of unrest or where there is famine or other dire circumstances.
- The child objects — The court may also refuse to order a return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Arizona courts give deference to the child’s wishes at certain ages; this must be explored if you are seeking to keep your child in Arizona.
Unless it has been a year since the removal or one of the defenses has been established, the court has absolutely no discretion to deny the application. It must order the return of the child to the home country. If it can be shown that the child is well settled or one of the defenses has been established, the court has discretion to allow the child to stay, but may decline to exercise that discretion and choose to order the return of the child in any event. In this case, expect to put on a substantial amount of evidence very quickly because of the requirement that the hearing be held within six weeks.
Counseling Clients On All Aspects Of International Child Abduction
An Arizona family law attorney who is not familiar with the Hague Convention will be at a great disadvantage in an international child abduction case. You need a lawyer who knows the applicable law and can argue your position effectively in the courts. I have argued these cases and won.
Don’t hesitate to contact me to learn more about the Hague Convention, international child abduction and the services I provide in this area.