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Litigating International Child Abduction Cases Under the Hague Convention

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Litigating International Child Abduction Cases Under the Hague Convention Litigating International Child Abduction Cases Under the Hague Convention Prepared by 2007 National Center for Missing & Exploited Children® Charles B. Wang International Children’s Building 699 Prince Street Alexandria, VA 22314-3175 1-800-THE-LOST® (1-800-843-5678) Copyright ©2007 Kilpatrick Stockton LLP and the National Center for Missing and Exploited Children, Inc. Although this manual is protected by copyright laws and treaties, you may make copies for use with clients but not for resale or for other commercial purposes. If you give a copy to anyone, it must be in its original, unmodified form, and must include all attributions of authorship, copyright notices and republication notices. National Center for Missing & Exploited Children® and 1-800-THE-LOST® are registered service marks of the National Center for Missing and Exploited Children. This Manual is provided for informational purposes only and does not constitute legal advice or an opinion on specific facts. This Manual may not be correct, complete, and/or up-to-date, so recipients should use this Manual only as a starting point for their own independent research. The publisher is distributing this Manual with the understanding that neither it nor the authors are engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Page i NCMEC INTERNATIONAL CHILD ABDUCTION TRAINING MANUAL TABLE OF CONTENTS Page I. INTRODUCTION ...............................................................................................................1 A. The Hague Convention On The Civil Aspects Of International Child Abduction.................................................................................................................1 B. The Role Of The National Center For Missing And Exploited Children................3 C. Overview Of A Hague Convention Case.................................................................4 II. ESTABLISHING A PRIMA FACIE CASE FOR RETURN...............................................9 A. Habitual Residence Prior To Wrongful Removal Or Retention Was In A Foreign Country.....................................................................................................11 B. Removal Or Retention Was Wrongful Because Custody Rights Were Breached. ...............................................................................................................18 1. Breach Of Rights Arising By Operation Of Law.......................................20 (a) Patria Potestas...............................................................................21 2. Breach Of Rights Arising By Judicial Or Administrative Decrees Or Agreement Of The Parties. ...................................................................22 (a) Ne Exeat Clauses............................................................................23 C. The Petitioner Must Be Exercising His Or Her Custody Rights At The Time Of Removal. .................................................................................................26 D. The Child Must Be Under The Age Of Sixteen.....................................................29 E. If True, Prove That The Petition Was Filed Within One Year Of Wrongful Removal.................................................................................................30 1. Determining When Removal Or Retention Became Wrongful. ................31 2. Determining When Proceedings Were Commenced. ................................33 3. Tolling Of The One-Year Period. ..............................................................34 III. THE AFFIRMATIVE DEFENSES OF ARTICLES 12, 13, AND 20 ..............................38 A. The Article 12 Well-Settled Defense: The Child Has Become Well- Settled In His Or Her New Surroundings. .............................................................41 Page ii B. The Article 13 Consent Or Acquiescence Defense: Petitioner Consented To Or Acquiesced In The Removal Or Retention. ................................................46 C. The Article 13 Grave Risk Defense: There Is A Grave Risk That The Child Would Be Exposed To Physical Or Psychological Harm Or An Intolerable Situation If Returned. ..........................................................................50 1. Grave Risk of Physical or Psychological Harm.........................................50 2. Intolerable Situations. ................................................................................53 3. Undertakings..............................................................................................54 D. The Article 13 Mature Child Objection To Removal Defense: A Mature Child Objects To Being Returned..........................................................................57 E. The Article 20 Public Policy Defense: Returning The Child Would Violate Public Policy. ............................................................................................59 F. The Often-Used But Invalid Defense: Best Interests Of The Child. ....................61 IV. PROCEDURAL ISSUES...................................................................................................64 A. Procedures For Filing And Litigating A Hague Return Case................................64 1. Choice of Court - Whether to File in Federal or State Court.....................64 2. The Petition for Relief Under the Hague Convention. ..............................65 (a) Preparation of the Complaint.........................................................65 (b) Provisional Remedies.....................................................................66 (i) Temporary Restraining Orders/Preliminary Injunctions..........................................................................67 (ii) Obtaining Custody of the Child .........................................68 (iii) Guardian Ad Litem Appointments.....................................70 (c) Notice and Service of the Hague Convention Petition ..................74 (d) Discovery .......................................................................................74 (e) Evidentiary Issues ..........................................................................75 (f) Witnesses (Including Experts) .......................................................76 3. Article 16 Stay of Pending State Court Action..........................................77 Page iii 4. Checklist of Activities................................................................................79 B. Appeals ..................................................................................................................80 1. Standard Of Review...................................................................................81 2. If The Trial Court Stays Its Order Returning The Child............................81 3. If The Trial Court Denies The Motion To Stay Its Order..........................82 4. An Appeal May Be Moot Once The Child Is Returned.............................83 C. The Logistics Of Handling A Hague Case. ...........................................................84 1. Introduction................................................................................................84 2. The Investigation. ......................................................................................85 3. Initial Conversation With Client................................................................86 4. Checklist Of Items to Discuss During First Client Call.............................87 5. Filing the Petition/Communicating With the Court...................................89 6. Service on the Defendant...........................................................................90 7. Client’s Travel and Accommodations. ......................................................91 8. Pending the Second Hearing......................................................................93 9. Court Order. ...............................................................................................94 V. THE UNIFORM CHILD CUSTODY JURISDICTION ACT AND THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT...........94 A. The UCCJA............................................................................................................95 B. Jurisdiction Under The UCCJEA...........................................................................97 C. Enforcement Under The UCCJEA.......................................................................100 VI. RIGHTS OF ACCESS.....................................................................................................103 VII. CONCLUSION................................................................................................................107 EXHIBIT A—HAGUE CONVENTION ................................................110 EXHIBIT B—PUBLIC NOTICE 957.....................................................121 EXHIBIT C—PEREZ-VERA REPORT .................................................152 Page iv EXHIBIT D—INTERNATIONAL CHILD ABDUCTION REMEDIES ACT.........................................................................212 EXHIBIT E—SIGNATORY COUNTRIES TO HAGUE CONVENTION* (See : http://travel.state.gov/family/abduction/hague_issues/hagu e_issues_1487.html.)....................................................................220 EXHIBIT F—Robles Antonio v. Barrios Bello Orders ...........................223 Page 1 NCMEC INTERNATIONAL CHILD ABDUCTION TRAINING MANUAL I. INTRODUCTION A. THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF
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