'
EACH YEAR, thousands of children are abducted from their homes
because of disputing parents. Leading-edge solutions to tracking such children
are in the works, using high-tech computers and extremely sophisticated
technology. Scores of people are devoting themselves to coming up with a
"better way." Even so, lawyers still have their work cut out for them.
Although locating the child may prove difficult, it is simply the first of
many hurdles for those seeking the child's return. The rescue picture could
improve shortly, with courts stepping in aggressively as the number of cases
swells.
The Convention on the Civil Aspects of International Child
Abduction (Hague Convention) was ratified by Congress on July 1, 1988. [FN1]
Its purpose is to deter international child abduction and to provide a
mechanism for the prompt [FN2] return of abducted children to their home
country where the courts there can resolve the custody issue on the merits.
The convention only applies among contracting states. [FN3] It is available
only when a child is wrongfully removed from a signatory country and retained
in another signatory country.
Thus, in Mezo v. Elmergawi [FN4] a mother's action for an
injunction ordering the Secretary of State to perform his duties under the
Hague Convention was dismissed where the father took his children, who were in
their mother's custody, from the United States to Egypt. While the United
States was a signatory to the Hague Convention, Egypt and Libya were not.
The countries that are parties to the Convention agree that a
child who is habitually resident in a country that is a party to the
Convention, who is in another country that is also a party, in breach of a
parent's "rights of custody," shall, subject to certain exceptions, be
promptly returned to the child's country of habitual residence.
Rights of Custody and of Access
The Convention does its best to create clear signs of its
intent to focus on the children. It broadly defines "rights of custody" to
include rights to care for the child and the right to determine the child's
place of residence. "Rights of access" are defined to include visitation
rights and the right to take the child to a place other than the child's
habitual place of residence for a limited period. [FN5]
A parent need not have a custody order to invoke the
Convention. To apply for the return of a child a parent must be actually
exercising [FN6] "rights of custody" under the law of the country where the
child was "habitually residing" at the time of the abduction or wrongful
retention.
The Convention limits its application only to children less
than 16 years old who have been "habitually residing" in a contracting state
immediately before the breach of custody or access rights and ceases to apply
on the day when the child attains the age of 16. [FN7] It only applies to the
wrongful removal or retention of a child in the responding jurisdiction. [FN8]
The procedure is summary. It does not contemplate a custody hearing on the
merits, [FN9] For purposes of enforcement proceedings brought under The
International Child Abduction Remedies Act (ICARA) the terms "wrongful removal
or retention" include a removal or retention of a child before the entry of a
custody order regarding that child. [FN10]
Of course, the heart of it all is determining when a child has
been "wrongfully" removed or retained. The removal or the retention of a child
is considered wrongful where it is in breach of "rights of custody" attributed
to a person, an institution or any other body, either jointly or alone, under
the law of the state in which the child was "habitually resident" immediately
before the removal or retention.
In addition, at the time of removal or retention those rights
must have been actually exercised either jointly or alone, or would have been
so exercised but for the removal or retention. The "rights of custody" may
arise by operation of law or by reason of a judicial or administrative
decision, or by reason of an agreement having legal effect under the law of
that state. [FN11] Simply put, it is enough that a lawful custodian was
deprived of association with the child, or that an agreement has been
breached. There need be no violation of a court order for the taking to be
wrongful.
The Permitted Defenses
Limited defenses are available. If the proceeding is commenced
in the responding state more than one year after the wrongful removal or
retention, a demonstration that "the child is now settled in its new
environment" may preclude his or her return. [FN12]
Other defenses that may be raised to returning the child to
the demanding state are that the party now seeking return of the child was not
actually exercising custodial rights at the time of the wrongful removal or
retention of the child [FN13]; that there was consent to the removal or
retention [FN14]; that return of the child would expose him or her to physical
or psychological harm "or otherwise place the child in an intolerable
situation" [FN15]; that the child objects to being returned and is of such age
and maturity that it is appropriate to take account of his views [FN16]; and
that human rights and fundamental freedom would be abridged if the return were
permitted. [FN17]
There is a constant and excessive bantering over the
definition of "habitual residence," because its interpretation has been left
to the courts and not defined by the Convention.
In Friedrich v. Friedrich [FN18] the Sixth Circuit established
a definition that has been adopted in New York. It held that habitual
residence must not be confused with domicile. To determine the habitual
residence, the court must focus on the child, not the parents, and examine
experience, not intentions. A person can have only one habitual residence. On
its face, habitual residence pertains to customary residence before the
removal. It reasoned that the court must look back, not forward.
Habitual residence can be "altered" only by a change in
geography and the passage of time, not by changes in parental affection and
responsibility. Any change in geography must occur before the questionable
removal.
In Feder v. Evans-Feder, [FN19] the Third Circuit, relying on
Frederich, held that a child's habitual residence is the place where he or she
has been physically present for an amount of time sufficient for
acclimatization and that has a "degree of settled purpose" from the child's
perspective. A determination that any particular place satisfies this standard
must focus on the child and consists of an analysis of the child's
circumstances in that place and the parents' present, shared intentions
regarding their child's presence there.
Playing Fair
Above all, the convention protects only those who play fair.
Courts will not equate "residence" based on "unclean hands" with a habitual
residence. In Meredith v. Meredith, [FN20] a mother's troubles were far from
over when she acted in bad faith. The father, an Arizona resident, who had
legal custody, was not directed to return his daughter to the mother in
France, where the mother hid the child after requesting that the girl visit
grandparents there.
The court held that the daughter was not a "habitual resident"
of France and to equate the temporary removal and subsequent sequestration of
the child to habitual residence in France, would be to reward the mother for
her ability to conceal the child. Concealment does not cause the place of
concealment to become the place of habitual residence.
In Nunez-Escudero v. Tice-Menley [FN21] the court rejected the
argument that the parties' 6-week-old infant was dependent on the mother in
determining habitual residence. It held that this would be inconsistent with
Convention, for it would reward the abducting parent and create an
impermissible presumption that the child's habitual residence is wherever the
mother happens to be.
Recently, the Fourth Department was the first New York
appellate court to address the issue in Brennan v. Cieault, [FN22] where it
reversed a Family Court order and granted the mother's application to return
the child to France. [FN23]
The father, a United States citizen, and the mother, a French
citizen, met in New York in 1990 while the mother was studying for the summer.
The father moved to France where the parties were married in 1991. Their
daughter was born in France in February 1994. With exception of visits to the
father's mother in New York, the parties lived in France until June 1995 when
the father and the child arrived in New York for a six-week visit with his
mother. The father had round-trip tickets and was expected to return to France
in August 1995.
The marriage had been troubled, however, and in telephone
calls during July and August the parties decided to separate. The father
indicated that he would not return to live in France if they were not going to
remain together. They discussed sharing custody of the child, with her
spending six months with each of them. The mother testified at the hearing
that she offered petitioner the first six months with the child but informed
him that she expected the child to return to France in December 1995. The
father admitted having those discussions but denied that he specifically
agreed to the arrangement.
In December 1995 the father commenced a proceeding in Family
Court seeking custody of the child. The mother made an application to dismiss
the petition on the ground that the child was being wrongfully retained in New
York in violation of the Hague Convention.
The Appellate Division held that the Family Court erred in
concluding that the child was not a habitual resident of France. Referring to
the Frederick and Evans cases it noted that courts interpreting the term have
held that it refers to a degree of settled purpose as evidenced by the child's
circumstances in that place and the shared intentions of the parents regarding
their child's presence there. The focus is on the child rather than the
parents and on past experience rather than future intentions.
The court determined that application of those principles to
this case compelled the conclusion that France was the child's habitual
residence. The parents were married there and had established professions and
a home there, and the child was born in France and lived there for the first
16 months of her life before she left for what was to be a six-week visit.
Those facts reflected a settled purpose on the part of the parties to
establish the child's life in France.
When the child left France the mother had consented to the
child's absence for only six weeks. Eventually she gave her consent for the
child to remain until Dec. 30, 1995, but she never agreed that the child
remain beyond that time and certainly never agreed to her remaining
indefinitely. Because the child's habitual residence was in France and the
father wrongfully retained the child in New York in derogation of the mother's
equal right to custody under the laws of France, the Family Court should have
issued an order requiring that the child be returned forthwith to the mother
in France.
FN1. As of Sept. 15, the Convention was in effect for the
United States, Argentina, Australia, Austria, Bahamas, Bosnia-Herzegovina,
Belize, Burkina Faso, Canada, Chile, Colombia, Croatia, Cyprus, Denmark,
Finland, Ecuador, the French Republic, the Federal Republic of Germany,
Greece, Honduras, Hungary, Ireland, Israel, Italy, Luxembourg, Macedonia,
Mauritius, Mexico, the Netherlands, Monaco, New Zealand, Norway, Panama,
Poland, Portugal, Romania, Slovenia, Spain, St. Kitts and Nevis, Sweden,
Switzerland, the United Kingdom of Great Britain and Northern Ireland (and
Isle of Man) and Zimbabwe.
FN2. See Article 1.
FN3. Hague Convention, Article 35.
FN4. 1994, EDNY. 855 F Supp 59. See also In Re Mohsen (1989,
DC Wyo) 715 F Supp 1063.
FN5. Article 5.
FN6. Friedrich v. Friedrich 78 F3d 1060 (6th Cir. 1996) held
that a person having valid custody rights to a child under the law of the
country of the child's habitual residence cannot fail to "exercise" those
custody rights under the Hague Convention short of acts that constitute clear
and unequivocal abandonment of the child. Once it determines that the parent
exercised custody rights in any manner, the court should stop - completely
avoiding whether the parent exercised the custody rights well or badly.
FN7. Article 4.
FN8. Article 35.
FN9. Article 19.
FN10. 42 USC s11602(f)(2).
FN11. Article 3.
FN12. Article 12.
FN13. Article 13.
FN14. Ibid.
FN15. Ibid.
FN16. Ibid.
FN17. Article 20.
FN18. 983 F2d 1396 (6th Cir. 1993).
FN19. 63 Fed3d 217, (3d Cir. 1995), reh, en banc, den (1995,
CA3) 1995 US App Lexis 24323.
FN20. (1991, DC Ariz) 759 F Supp 1432.
FN21. 1995, CA8 Minn, 58 F3d 374.
FN22. 643 NYS2d 780 (4th Dept. 1996).
FN23. New York lower court cases include Sheikh v. Cahill
(1989) 145 Misc2d 171; David S. v. Zamira S., 151 Misc2d 630 (Fam. Ct., Kings
Co., 1991) ; Matter of David B. v. Helen O., Misc2d (Fam Ct., NY Co., 1995)
Joel R. Brandes and Carole L. Weidman have law offices in New
York City and Garden City. They co-authored, with the late Doris Jonas Freed
and Henry H. Foster, Law and the Family New York, and co-authored Law and the
Family New York Forms (both, Lawyers Cooperative Publishing)
9/23/97 NYLJ 3, (col. 1)
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