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.
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.
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)
END OF DOCUMENT