|
The Hague Convention on the Civil Aspects of
International Child Abduction (c) The Hague Convention on the Civil
Aspects of International Child Abduction, 1. Purpose of the Convention. The stated 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.” (Hague Convention, Preamble.) That Preamble states that the Hague 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.” See also Hague
International Child Abduction Convention: Text and Legal Analysis, 51 Fed.
Reg. 10,498 ( The most striking feature of the Convention is its
procedural and jurisdictional focus.[4] The International Child Abduction
Remedies Act specifically provides that the Convention and its implementation
"empower courts in the The Hague
Convention was drafted with the intent to remove forever the incentive for a
parent to flee across borders to obtain a favorable ruling. Letter of
Transmittal from As such, the Hague Convention does
not provide any substantive rights and does not allow the court before which
a Hague Convention action is filed to consider the merits of any underlying
child custody claims.[5] Instead,
it only establishes a procedure in those countries that have adopted it by
which the return of children under the age of sixteen years may be
accomplished if the removal or retention of those children is determined to
be “wrongful” under the Convention.[6] Certainly, because of the complex
nature of such cases a court may be tempted to inject its own view of an outcome regarding custody on the
parties; however, that is not the court’s mandate under the Convention.
As stated by the Court in Friedrich v.
Friedrich, 983 F.2d 1396, 1402 (6th Cir. 1993): Every
family dispute has its own unique set of facts, and the case before us
certainly is no different. However, there is a central core of matters at
which Notwithstanding its complex nature, an action instituted
under the Hague Convention is to be expedited. To effectuate the objects of
the Convention, Contracting States are compelled to take all appropriate
measures to secure within their territories to implement the objects of the
Convention.[7] For this purpose, the Convention
provides that all Contracting States, as well as any judicial and
administrative bodies of those Contracting States, “shall act
expeditiously in all proceedings seeking the return of a children” and
that those institutions shall use the most expeditious procedures available
to the end that final decision be made within six weeks from the date of
commencement of the proceedings.[8] The court before which 2. Jurisdiction and Venue The International Child Abduction Remedies Act provides
that state and federal courts have concurrent original jurisdiction to
consider an action filed by a foreign parent to recover a child who has been
wrongfully removed to or retained within the To further effectuate and protect the rights of the
Petitioner, the Convention provides that the judicial or administrative
authorities of the country to which the child has been removed or in which
the child has been retained “shall not decide on the merits of rights
of custody until it is determined that the child is not to be
returned.”[15] 3. Burdens of Proof In order to prevail on a Petition to Return a Child
under the provisions of the Hague Convention, a Petitioner has the burden to
prove by preponderance of the evidence that the child has been
“wrongfully removed or retained” from the child’s
“habitual residence.”[16] If those elements are shown by the
Petitioner, the children’s return is mandated unless the Respondent can
establish, by clear and convincing evidence, that an exception to return
under the Convention exists.[17] As stated by the Kansas Supreme
Court in Dalmasso
v. Dalmasso,
269 The
petitioner seeking return of a child must prove by a preponderance of the
evidence that the removal was wrongful. 42 U.S.C. § 11603(e)(1)(A) (1994).
“That is, the evidence must show he or she was exercising lawful
custody rights over the child at the time of removal.” 267 If the
petitioner establishes a wrongful removal, the burden shifts to the respondent
to show an exception to the Convention applies. . . . . Pursuant to ICARA,
the respondent must prove these exceptions by clear and convincing evidence.
42 U.S.C. § 11603(e)(2)(A). The exceptions to return are construed narrowly and the
burden on a Respondent to show that the Convention should not be
automatically applied high.[18] It should be noted, however, that
even if a Respondent proves one of the exceptions to return, the court always
retains the discretion to order return, and none of the defenses allowed
should be used as a basis to avoid return “merely because an American
court believes it can better or more quickly resolve a dispute.”[19] 4. Habitual Residence The Hague Convention mandates return of any child who
was a “habitual resident” in a contracting nation immediately
before an action that constitutes a breach of custody or access rights.[20] Although the term “habitual
residence” is not defined in the Convention, it is not intended to be
considered a technical term, but must be read broadly in the context of the
Convention’s purpose of discourage unilateral removal of a child from
that place where the children lived at the time of removal or retention. As
was stated by the Court in Sampson v.
Sampson, 267 Habitual
residence is not a technical term like domicile; 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.” Although not a technical term like
“domicile,” “[a] person can have only one habitual
residence. On its face, habitual residence pertains to customary residence
prior to the removal. The court must look back in time, not forward.”[21] A
child’s “habitual residence” is determined at the time
immediately prior to the incident alleged to constitute a wrongful removal or
retention – not afterwards.[22] A parent cannot unilaterally create a
new habitual residence by wrongfully removing or sequestering a child.[23] See e.g. Re S and another (minors), 1 All.E.R. 237, 248 (Eng.Fam.Div.
1994)(mother wrongfully retained children by announcing her intention not to
return the children to Israel, and asserting that she and they had acquired
new habitual residence in England, even though this occurred before the
agreed-upon period of their stay abroad had ended). As stated by the Court in
Mozes v. Mozes, 239
F.3d 1067, 1079 (9th Cir. 2001): The
Convention is designed to prevent child abduction by reducing the incentive
of the would-be abductor to seek unilateral custody over a child in another
country. The greater the ease with which habitual residence may be shifted
without the consent of both parents, the greater the incentive to try. Neither may the “habitual residence” of a
child shift from one country to another because the child is in the
“new country” to visit with the other parent. As the Court in Mozes v. Mozes, 239
F.3d 1067 (9th Cir. 2001) stated: Where, as
here, children already have a well-established habitual residence, simple
consent to their present 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 at 1081. It should also be noted that although there may be a
previous court determination in one country of the rights both parents have
with the children, that decree does not in itself determine the habitual
residence of the children. The habitual residence of the children may change
depending on the facts that develop after entry of the original decree of
divorce.[24] Because the determination of
“habitual residence” is primarily a “fact based”
determination and not one encumbered by legal technicalities, the court must
look at those facts, the shared intentions of the parties, the history of the
children’s location and the settled nature of the family prior to the
facts giving rise to the request for return.[25] 4. Wrongful Removal or Retention “If it is determined the child has been removed
from its habitual residence, the petitioner parent must show by preponderance
of the evidence that the removal was wrongful.”[26] “The Convention’s
approach to the phenomenon of international child abduction is
straightforward. It is designed to restore the ‘factual’ status
quo which is unilaterally altered when a parent abducts a child and aims to
protect the legal custody rights of the non-abducting parent.”[27] Thus, the cornerstone of the Convention is the mandated return of
the child to his or her circumstances prior to the abduction if one
parent's removal of the child from or retention in a Contracting State has
violated the custody rights of the other, and is, therefore, ‘wrongful’.
Hague Convention, Article 12.”[28] The Convention provides that the removal or retention of
a child is “wrongful” whenever: a. 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 b. 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. The rights of custody mentioned in
sub-paragraph a above, may
arise in particular 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.”[29] “Generally speaking, ‘wrongful
removal’ refers to the act of keeping the child without the consent of
the person who was actually exercising custody of the child. ‘Wrongful
retention’ refers to the act of keeping the child without the consent
of the person who was actually exercising custody. The archetype of this
conduct is the refusal by the noncustodial parent to return a child at the
end of an authorized visitation period.” Legal Analysis of the Hague Convention, 51 Fed.Reg.
10494, 10503 (1986). A “wrongful removal or retention” of a child
occurs within the meaning of the Convention when an action is taken by one
parent in contravention to the rights of a person or instution
under the law of the State of the child’s habitual residence.[30] “Under ICARA and the Convention, ‘wrongful
removal’ may be found irrespective of whether the children are the
subject of a custody order. 42 U.S.C. §11603(e)(2)(A).”[31] As the Sixth Circuit Court of
Appeals pointed out in Friedrich v.
Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993): It is
important to understand that “wrongful removal” is a legal term
strictly defined in the Convention. It does not require an ad hoc
determination or a balancing of the equities. Such action by a court would be
contrary to a primary purpose of the Convention: to preserve the status quo
and to deter parents from crossing international boundaries in search of a
more sympathetic court. The Convention does not require that any custody order
be in force at the time of the removal or retention to make the removal or
retention wrongful.[32] The International Child Abduction
Remedies Act specifically provides that a “wrongful removal or
retention” as used in the Convention is to “include a removal or
retention of a child before the entry of a custody order regarding that
child.”[33] Similarly, even though custody
rights may be conferred by court decree, the Convention does not mandate
recognition of the terms of that decree. Instead, the Convention seeks to
restore the factual rights of
custody that existed prior to the wrongful removal or retention of the
children. Legal Analysis of the Hague
Convention, 51 Fed.Reg. 10494, 10503 (1986). As
stated by the Hague Convention Explanatory Note: From the
Convention's standpoint, the removal of a child by one of the joint holders
without the consent of the other, is . . . wrongful, and this wrongfulness
derives in this particular case, not from some action in breach of a
particular law, but from the fact that such action has disregarded the rights
of the other parent which are also protected by law, and has interfered
with their normal exercise. The Convention's true nature is revealed
most clearly in these situations: it is not concerned with establishing the
person to whom custody of the child will belong at some point in the future,
nor with the situations in which it may prove necessary to modify a decision
awarding joint custody on the basis of facts which have subsequently changed.
It seeks, more simply, to prevent a later decision on the matter being influenced
by a change of circumstances brought about through unilateral action by one
of the parties. Elisa Perez-Vera, Explanatory
Report: Hague Conference on Private International Law, in 3 Acts and
Documents of the Fourteenth Session ("Explanatory Report"), ¶ 71,
at 447-48. The parent seeking return of the children is considered
to be “exercising” custody rights even though the physical care
of the child has been turned over to the other parent for some period of
time. As stated by the Court in Friedrich
v. Friedrich, 78 F.3d 1060 (6th Cir. 1996): The Hague
Convention does not define “exercise.” As judges in a common law
country, we can easily imagine doing so ourselves. One might look to the law
of the foreign country to determine if custody rights existed de jure, and then develop a test under the general
principles of the Hague Convention to determine what activities –
financial support, visitation – constitute sufficient exercise of de
jure rights . . . . One might even approach a
distinction between the exercise of “custody” rights and the
exercise of “access” or “visitation”
rights. . . . We think
it unwise to attempt any such project. Enforcement of the Convention should
not to be made dependent on the creation of a common law definition of
“exercise.” The only acceptable solution, in the absence of a
ruling from a court in the country of habitual residence, is to liberally
find “exercise” whenever a parent with de jure
custody rights keeps, or seeks to keep, any sort of regular contact with his
or her child. Friedrich v. Friedrich,
78 F.3d at 1064. Article 3(a) and (b) recognize that custody rights may
be exercised either jointly or alone. A mother and a father can both exercise
joint custody, either by court order, following a custody determination, or
by operation of law prior to the entry of any decree. As stated by the
Perez-Vera Report: Now, from
the Convention's standpoint, the removal of a child by one of the joint
holders without the consent of the other, is equally wrongful, and this wrongfulness
derives in this particular case, not from some action in breach of a
particular law, but from the fact that such action has disregarded the rights
of the other parent which are also protected by law, and has interfered with
their normal exercise. The Convention's true nature is revealed most clearly
in these situations: it is not concerned with establishing the person to whom
custody of the child will belong at some point in the future, nor with the
situations in which it may prove necessary to modify a decision awarding
joint custody on the basis of facts which have subsequently changed. It
seeks, more simply, to prevent a later decision on the matter being
influenced by a change of circumstances brought about through unilateral
action by one of the parties. “Very little is required of the applicant in
support of the allegation that custody rights have actually been or would
have been exercised. The applicant need only provide some preliminary
evidence that he or she actually exercised custody of the child, for
instance, took physical care of the child. . . . In the scheme of the
Convention it is presumed that the person who has custody actually exercised
it.” Legal Analysis of the Hague
Convention, 51 Fed.Reg. 10494, 10507 (1986).
This is made all the more clear by the fact that the Convention places the
burden of proving the non-exercise of
custody rights on the Respondent.[34] When the Petitioner has proven these elements: that the
child has been “wrongfully removed or retained” from the
child’s habitual residence, the child must be returned to the country
of habitual residence unless excused by other narrow provisions of the
Convention.[35] END
|
