The Hague Convention
As improvements in technology make international travel easier, it also
raises concerns for couples going through divorce. Specifically, it forces
families to deal with
child custody concerns when one parent moves to a foreign country. In October of 1980,
various foreign countries got together to form the Hague Convention on
the Civil Aspects of International Child Abduction (hereinafter "Hague
Convention"). Since 2005 about 60 countries around the world, including
the United States, have become parties to the Hague Convention. The purpose
of the Hague Convention is to allow parents to take action, if one spouse
either unilaterally or otherwise removes the child(ren) to a foreign country.
The United States in 1988, decided to go one step further in by forming
the International Child Abduction Remedies Act ("ICARA"), which
creates a judicial remedy for those who need it.
If you are currently going through a child custody proceeding where you
believe your spouse may move abroad, there are some specific provisions
that should be added to the Child Custody Agreement based upon the provisions
of The Hague Convention and ICARA. First, it is important to have a provision
that makes the Hague Convention applicable if one spouse removes the child
or children to an international jurisdiction. However, the Hague Convention
will be applicable if the removal was "wrongful."
Removal is "wrongful" if it would violate the custody rights
of a party involved under the law of the jurisdiction where the child(ren)
was a "habitual resident" right before the removal and at the
time of the removal the party was actually exercising those rights and
would have continued to exercise them if the child(ren) had not been removed.
Furthermore, both States must be Contracting States to the Hague Convention
on or before the removal, and the child(ren) must be under the age of
sixteen at the time of removal.
Establishing a Home State
Second, once the Hague Convention applies, it is important to designate
where the "home state" residence of the child(ren) is, especially
if the parents are not residing in the same state. Specifically, you should
include a clause that designates New York as the child(rens)'s home
state. This is because courts will look at the intention of the parents
when deciding where the habitual residence of the child(ren) is and having
it agreed to in writing will demonstrate both that intention.
Act Now & Establish Wrongful Removal
Finally, and most importantly, if you are the parent who is filing a petition
asking the child to be returned from the foreign country it is important
to act quickly, because Courts will view a delay in filing as a parent
sitting on their rights and therefore allow the child(ren) to remain in
the foreign jurisdiction. If however, you file your petition timely, and
are able to demonstrate by a preponderance of the evidence that the removal
was wrongful, than the burden shifts to the other parent to demonstrate
why the child should not be returned to the original jurisdiction.
What can the Hague Convention do for your custody case?
Each Contracting State is required to establish a "Central Authority"
that is able to accept these Hague Convention Petitions. In the United
States this authority is known as the National center for Missing and
Exploited Children, if the child(ren) was removed from a foreign jurisdiction
to the US. However, if the child(ren) was removed from the US to another
jurisdiction than the United States Department of States is the Central
Authority. A party may also seek judicial relief under ICARA while their
petition is pending in the Central Authority. In this petition, the party
should request that once the child(ren) is returned the other party is
responsible for the petitioner's legal fees, and other expenses that
are authorized under ICARA. Once this is done, the petition must serve
the other party in the quickest way possible because the Hague Convention
aims to complete each case within a six-week time frame.