Return Petition Pursuant to the Hague Convention

Posted By Eiges & Orgel, PLLC || 11-May-2015

Return petitions are brought pursuant to the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980 (the “Convention”) and the International Child Abduction Remedies Act (“ICARA”). ICARA is the enabling instrument, which provided for the procedures for the implication of the Convention and established the authority of the courts of the United States to adjudicate claims brought under the Convention. The purpose of the Convention is to provide for the expeditious return of a child who has been wrongfully removed to a county [that is a signatory of the Convention] by a person who intends to obtain physical or legal custody such child abroad. For the convenience of the Court, copies of the Convention and ICARA are annexed hereto, as Exhibits G and H respectively.

The objects of the Hague Convention are:

  • Article 1(a): To secure prompt return of children wrongfully removed to or retained in any Contracting State; and
  • Article 1(b): To ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States

The Hague Convention authorizes the Petitioner to seek an order compelling return of the child to the [signatory] country from which the child was removed by appealing to the Courts of the [signatory] country to which the child was abducted. Where a child has been wrongfully removed to or retained in the United States, a Petitioner may apply directly to the federal or state courts and bypass the U.S. Central Authority

The Convention itself does not furnish courts of the jurisdiction to which the child has been removed with the authority to determine the merits of a custody case, but rather it establishes the competency of such courts to determine where the subject child should be physically located in order for disputes of custody to be resolved by the courts of the country where the child normally resides (viz., the country of the child’s habitual residence prior to unlawful removal abroad). In sum, the Convention authorizes the state courts of New York to determine the merits of a claim for the wrongful removal or retention of a child; it does not, however, permit the New York State courts to consider the merits of any underlying custody dispute.

In order to prevail on a claim under the Hague Convention, a petitioner must show that:

  • (i) the child was habitually resident in one state and has been wrongfully removed to or retained in a different state;
  • (ii) the removal or retention was in breach of the petitioner’s custody rights under the law of the state of habitual residence; and
  • (iii) the petitioner was exercising those rights at the time of removal or retention.

The Convention does not define the term “habitual residence.” United States precedents have adopted the interpretation of “habitual residence” to mean the child’s “customary residence,” viz., the place where the child has ordinarily and continuously resided prior to the removal or retention. “Habitual residence” is not synonymous with domicile, as the former considers whether the child was “settled” in the country from which they were abducted, rather than the intent of the parent-parties to remain in such country. The analysis for “habitual residence” is fact-based, and turns on whether there existed such a degree of continuity in the child’s living arrangements [in the abducted-from country] that the child could be considered to have been settled there. Indicia of habitual residence/settlement include the child’s recurrent and/or continuous attendance of school in the country from which they were removed, the child having a fixed residence with one or both parents in such country, the extent to which the abducting parent had ties to and had maintained a fixed residence in such country prior to the removal.

Under the Convention, the removal or retention of a child is considered wrongful where “it is in breach of rights of custody attributed to a person […], either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention.” The Convention presumes that the person who had lawful custody rights at the time of the removal or retention was actually exercising, or would have exercised, such custody rights but for the removal or retention; the burden of proof is on the Respondent to prove that the Petitioner was not exercising his or her custodial rights at the time.

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