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.

Wrongful Removal

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.

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