Category Archives: International Abduction

Hague Convention is Jurisdictional Treaty

The Hague Convention is unique in that it is almost purely about jurisdiction. The drafters designed it “to restore the status quo prior to any wrongful removal or retention and to deter parents from engaging in international forum shopping.” Baxter v. Baxter, 423 F.3d 363, (3d Cir. 2005). The treaty does not set parameters for making a substantive, custody decision; instead, it outlines the procedures to decide where the case should be heard. In these cases, then, it determines under which nation’s laws, procedures, and judges will decide the ultimate outcome of the case.

Article 19 explicitly says, “A decision made under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” Instead, the Convention focuses on whether or not a child “should be returned to a country for custody proceedings and not what the outcome of those proceedings should be.” Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir. 2004).

Why did the drafters of the Convention focus on jurisdiction? In the text of the Convention itself, it is made expressly clear that one of the primary goals of the Convention is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State.” Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir. 2004) (Citing Convention, art. 1, 19 I.L.M. at 1501). One of the major reasons to return the child is to ensure that parents do not move the child to a different country in order to gain some sort of tactical advantage by picking and choosing which legal system to litigate the case. This underlying concern for forum shopping is why the Convention focuses on jurisdiction.

Bottom Line:  The Hague Convention treaty is not meant to resolve substantive custody issues.  It is used to determine where the custody dispute will take place.

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HAGUE CONVENTION: Pending Case in United States Supreme Court (Lozano v. Alvarez)

United States Supreme Court

The United States Supreme Court has granted certiorari in Lozano v. Alvarez (Docket No. 12-820) which deals with the Hague Convention on International Abduction.  Recently, the International Academy of Matrimonial Lawyers (IAML) filed an Amicus brief in the case.  Cheryl Hepfer, current president of IAML, described the case and the IAML’s brief in her recent blog post on the IAML blog.  You can visit the IAML blog here and Sheryl Hepfer’s post regarding the Lozano case is reproduced below.

Posted by : Cheryl Hepfer on Sunday 15th September 2013, posted in Hague Convention (Child Abduction)

The IAML has filed an Amicus Brief in the United States Supreme Court in the Lozano case.

The Amicus Committee,  under the able leadership of Ed Freedman, was granted permission by both parties to file a brief on an issue about which the United States Supreme Court has granted certiorari.

The case involves the wrongful removal of a a child from England to the United States.  The abducting parent concealed the child post-abduction.  As a result, the left behind parent was unable to commence his petition within the one year period after removal, as is required to obligate the Court to order the return of the child.

The father contends that the one year period should be tolled during the time period when the child was concealed.  The United States Federal Courts have, in the past, taken different positions on this issue.  The question before the Supreme Court is whether equitable tolling should be read into the interpretation of the one year period.

Our Amicus Committee supports the principle of tolling.  Our Brief suggests one of two alternatives for the Court to consider regarding one year period.  The IAML suggests that courts should either adopt the provisions of the 1996 Convention on Jurisdiction and Protection of Children, which provides a one  year period from the date when the concealed child is located, or one year from the date when the child could have been located; or, alternatively, to hold that in cases of concealment, the filling of an application with the Central Authority commences the action.

It was appropriate for us to convey our concerns and thoughts to the United States Supreme Court.  In doing so, we take our place as a leading, world-wide organization of the world’s experts in this area of the law.   We are grateful, indeed,  to Ed  for having brought this issue to our attention, and for his hard work, and that of the Committee, in taking all of the necessary action, within a very short period of time, to facilitate our filing of the Amicus Brief.

The Lozano case is set for oral arguments at the United States Supreme Court on Wednesday, December 11, 2013.

You can read the Second Court of Appeals opinion in the case here:  Lozano – Second Court of Appeals Opinion

You can read the Petition for Certiorari here: Lozano – Petition for Certiorari

Follow the case on the United States Supreme Court’s docket here.

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Hague Convention: “Habitual Residence” of the Child

The Hague Convention on the Civil Aspects of International Abduction, contrary to popular belief, is not an international child custody treaty.  By this, I mean that the treaty was not created for the purpose of deciding which parent should have custody of a child.  The purpose, generally speaking, is to provide a method of determining which country the child custody case will occur.  In determining where a custody case will occur, the Hague Convention asks the pivotal question, “Where was the habitual residence of the child at the time the child was allegedly wrongfully removed or retained?”

Notably, the Hague Convention itself does not define habitual residence.  Thus, it has been left to the courts to decipher this important question.  First, the habitual residence of a child is almost entirely determined based on the unique facts and circumstances of a particular case.  Basically, the court will dive into the facts and circumstances of the parties and the child in each case and make a determination of the child’s habitual residence.

Some of the factors the courts look at in determining habitual residence (but definitely not all of them)  are as follows:

  • The intentions of the parents
  • Statements made by the parents
  • Employment of the parents
  • The location of the parents’ families
  • Whether a move was intended to be temporary or permanent
  • The length of time the parent(s) or child have resided in a particular country
  • The child’s schooling in a particular country
  • The child’s involvement in extracurricular activities
  • The child’s involvement in the community

This is by no means a comprehensive list but it gives a sense of what courts will consider.  It also shows just how fact intensive the habitual residence inquiry can be and it demonstrates how the unique facts of each case can determine the outcome.  Further, different courts attribute different weight to these various factors.  Some courts weigh heavily the actions and intentions of the parents.  Other courts focus more on where the child is and what the child has been doing.  Other courts weigh all of these factors almost equally.  Needless to say, it is important in any Hague Convention case to articulate the facts of your case and, depending on your jurisdiction, emphasize those facts that the court in your jurisdiction weighs most heavily.

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HAGUE CONVENTION: Exceptions to Requirement to Return Wrongfully Removed or Retained Children

The Hague Convention on the Civil Aspects of International Abduction is widely thought of as the legal means of having a wrongfully removed or retained child returned to their country of habitual residence.  While the Hague Convention certainly does that, it also provides circumstances in which a wrongfully removed or retained child may not necessarily be ordered to return to the country of the child’s habitual residence.  Article 13 of the Hague Convention sets forth those exceptions as follows:

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a)   the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or 
b)   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.

The judicial or administrative authority may also refuse to order the 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 its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.

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International Abduction Risk Factors

It is often the case that when a child is abducted internationally by a parent that the non-abducting parent looks back and wonders, “Should I have seen any warning signs?”  Also, if a case is already being litigated, courts will look at certain criteria to determine if there are any abduction “risk factors.”  In fact, the Texas Family Code actually specifies a number of these risk factors for the court to assess and these factors can also be helpful to an individual wondering if the other parent may be contemplating child abduction.   Specifically, Texas Family Code §153.502 sets forth Abduction Risk Factors and states as follows:
(a) To determine whether there is a risk of the international abduction of a child by a parent of the child, the court shall consider evidence that the parent:
          (1) has taken, enticed away, kept, withheld, or concealed a child in violation of another person’s right of possession of or access to the child, unless the parent presents evidence that the parent believed in good faith that the parent’s conduct was necessary to avoid imminent harm to the child or the parent;
          (2) has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of another person’s right of possession of or access to the child;
          (3) lacks financial reason to stay in the United States, including evidence that the parent is financially independent, is able to work outside of the United States, or is unemployed;
          (4) has recently engaged in planning activities that could facilitate the removal of the child from the United States by the parent, including:
                      (A) quitting a job;
                      (B) selling a primary residence;
                      (C) terminating a lease;
                      (D) closing bank accounts;
                      (E) liquidating other assets;
                      (F) hiding or destroying documents;
                      (G) applying for a passport or visa or obtaining other travel documents for the parent or the child; or
                      (H) applying to obtain the child’s birth certificate or school or medical records;
        (5) has a history of domestic violence that the court is required to consider under Section 153.004; or
        (6) has a criminal history or a history of violating court orders.
(a-1) In considering evidence of planning activities under Subsection (a)(4), the court also shall consider any evidence that the parent was engaging in those activities as a part of a safety plan to flee from family violence.
(b) If the court finds that there is credible evidence of a risk of abduction of the child by a parent of the child based on the court’s consideration of the factors in Subsection (a), the court shall also consider evidence regarding the following factors to evaluate the risk of international abduction of the child by a parent:
        (1) whether the parent has strong familial, emotional, or cultural ties to another country, particularly a country that is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction; and
       (2) whether the parent lacks strong ties to the United States, regardless of whether the parent is a citizen or permanent resident of the United States.
(c) If the court finds that there is credible evidence of a risk of abduction of the child by a parent of the child based on the court’s consideration of the factors in Subsection (a), the court may also consider evidence regarding the following factors to evaluate the risk of international abduction of the child by a parent:
      (1) whether the parent is undergoing a change in status with the United States Immigration and Naturalization Service that would adversely affect that parent’s ability to legally remain in the United States;
      (2) whether the parent’s application for United States citizenship has been denied by the United States Immigration and Naturalization Service;
      (3) whether the parent has forged or presented misleading or false evidence to obtain a visa, a passport, a social security card, or any other identification card or has made any misrepresentation to the United States government; or
      (4) whether the foreign country to which the parent has ties:
              (A) presents obstacles to the recovery and return of a child who is abducted to the country from the United States;
              (B) has any legal mechanisms for immediately and effectively enforcing an order regarding the possession of or access to the child issued by this state;
              (C) has local laws or practices that would:
                        (i) enable the parent to prevent the child’s other parent from contacting the child without due cause;
                       (ii) restrict the child’s other parent from freely traveling to or exiting from the country because of that parent’s gender, nationality, or religion; or
                      (iii) restrict the child’s ability to legally leave the country after the child reaches the age of majority because of the child’s gender, nationality, or religion;
              (D) is included by the United States Department of State on a list of state sponsors of terrorism;
              (E) is a country for which the United States Department of State has issued a travel warning to United States citizens regarding travel to the country;
              (F) has an embassy of the United States in the country;
              (G) is engaged in any active military action or war, including a civil war;
              (H) is a party to and compliant with the Hague Convention on the Civil Aspects of International Child Abduction according to the most recent report on compliance issued by the United States Department of State;
              (I) provides for the extradition of a parental abductor and the return of the child to the United States; or
                   (J) poses a risk that the child’s physical health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children, including arranged marriages, lack of freedom of religion, child labor, lack of child abuse laws, female genital mutilation, and any form of slavery.
If you notice these risk factors and are worried your child might be taken out of the country by the other parent then you could contact an attorney immediately to see how to best handle the situation.  Preventing an abduction before it ever occurs is always easier than trying to recover the child after the fact.

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The Hague Convention on the Civil Aspects of International Abduction

One of the primary treaties dealing with international custody/abduction issues is the Hague Convention on the Civil Aspects of International Abduction. You can learn more about this treaty on their website:

http://www.hcch.net/index_en.php?act=conventions.text&cid=24

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