Family Law By Julie A. Auerbach and Elaine Smith Determining Jurisdiction Hague Convention Decides Which Country Takes Custody Cases in International Child Abductions

ague Convention on between a Hague case, which deals with the Civil Aspects of a jurisdictional issue, and a best interests International Child determination required in a typical Abduction is a treaty To prove a custody case. H that addresses the wrongful removal Federal courts, which do not routinely problem of parents unlawfully removing handle custody cases, may consequently children from the country where they be more inclined to follow the letter of reside. To be clear, the Convention is not under the Hague The Hague Convention law and not slip designed to determine the custody rights into a best interests determination. of each parent. Instead, it is designed Convention, To prove a wrongful removal under to determine which country should take The Hague Convention, the petitioner jurisdiction over the custody case. The the petitioner must prove by a preponderance of the Hague Convention can also be used to evidence that the child was wrongfully secure a parent’s rights of access to his must prove by a removed from the child’s country children. of “habitual residence.” The Hague The Hague Convention requires each preponderance Convention does not define “habitual participating country to establish what is residence.” The determination by called a “Central Authority” to oversee of the evidence the courts of a child’s “habitual and administer the implementation of residence” is intended to be a fact-based the provisions of the Hague Convention. that the child determination. In addition, the petitioner The United States Central Authority must establish that he had custody rights is the Office of Children’s Issues, was wrongfully at time of the removal and that he was Department of State, Washington, D.C. exercising his custody rights at the time At present, 87 countries are signatories removed from of the removal. to the Hague Convention. (See Status There are several narrow defenses Table: Convention of Oct. 25, 1980 the child’s available to the abducting parent. on the Civil Aspects of International When the court, either federal or state, Child Abduction, Hague Conference on country of concludes that the elements of a prima Private International Law.) facie Hague case of wrongful retention A petitioning parent can use the “habitual or removal have been established by central authority of either the country the petitioner, the burden shifts to the where the child was habitually residing residence.” respondent to prove an affirmative or the country where the child was defense against the return of the child removed, or both, to obtain assistance are implemented in the United States to the country of habitual residence. in effectuating the return of the child. through the International Child Karhainen, 445 F. 3d at 228 (citing Central authorities are to provide Abduction Remedies Act (ICARA). Baxter, 423 F. 3d at 368) and Abbott assistance to the petitioning parent ICARA provides that a Petition for the v. Abbott 130 STC 1983, 1997 (2010). in the form of locating the abducting Return of a Child brought under the “A return order is not automatic, i.e. parent; finding the petitioner attorneys Hague Convention can be filed in either return is not required if the other parent who have experience in litigating state or federal court. Many family law can establish that a Hague Convention Hague cases; providing information as practitioners may file the petition in exception applies.” Affirmative defenses to the laws of the country of the child’s state court simply because they are more are to be narrowly construed and are habitual residence; preventing further comfortable and more familiar with state contained in Articles 12, 13 and 20 of harm to the child by taking provisional court proceedings. However, a potential the Convention. measures; and providing information risk of filing a Hague Petition in state Article 12, known as the “Well- relating to the social background of the court is that the state courts, which Settled” defense, applies if the child child. routinely handle child custody cases, or children are in the new country for The provisions of the Convention will not be sensitive to the distinction one year or greater from the date of the

10 the philadelphia lawyer Summer 2012 abduction to the date of the filing of the and maturity” defense, provides a risk of harm if ordered to return to the Hague petition. If more than one year has defense to return when the child objects country of his habitual residence. Sexual elapsed from the date of the wrongful to being returned and has attained a or physical abuse are examples of a removal or retention and sufficient degree of maturity and an age at which grave risk of harm. evidence is presented that the child is it is appropriate to take account of his Article 20 provides a defense if well-settled in his new environment, views. DeSilva v. Pitts 481 F. 3d 1279, sufficient evidence is presented that “the the defense will apply. The one-year 1286 (10 CIR 2007). In considering the return of a child should not be permitted period can be tolled if the abducting defense, the courts will look at whether by the fundamental principles of the parent conceals the whereabouts of the or not the child’s wishes are “the product requested state relating to the protection child from the other parent. (Hague of undue influence.” (Hague Convention of human rights and fundamental Convention Analysis, 51 FED REQ. at Analysis, 51Fed REG at 10, 509 the freedoms. 10, 494) “limitations of obligation to return”). If one of the above defenses applies, a Factors the court looks to in Another Article 13 defense is when the child will not be returned to the country determining whether the well-settled person from whom the child was removed of his habitual residence even if a defense applies include the length of and was not exercising custody rights at the wrongful removal is established. stability of the child’s new residence; time of removal or retention or had There are resources available online the child’s connections to the new consented to or subsequently acquiesced for the practitioner trying a Hague country; the age of the child; the child’s in the removal or retention. The person Convention case. See the National attendance at school; the stability of the who opposes the return has the burden Center for Missing and Exploited parent’s employment or other means of proving that the other parent was not Children, www.missingkids.com and of support; the child and the abducting actually exercising custody rights at the the U.S. Department of State, travel. parents network of friends and relatives; time of the removal or retention, or that state.gov/abductions. the level of parental involvement in the there was a consent or acquiescence to child’s life; and the immigration status the removal or retention. Article 13 also Julie A. Auerbach (jauerbach@astorweiss. of the child and the parent. Castillo v. provides for the “grave risk of harm” com) is a partner with Astor Weiss Kaplan Castillo 597 F. Supp.2d 438. defense. The defense is established if & Mandel, LLP. Elaine Smith (es@ Article 13 also contains several sufficient evidence is presented that smithhorwitz.com) is a partner with Smith defenses. The first, known as the “age the child would be exposed to a grave and Horwitz, Attorneys at Law.

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