Joel R. Brandes and Carole L Weidman
THE CONVENTION on the Civil Aspects of International Child
Abduction was adopted at The Hague, the Netherlands, on Oct. 25, 1980, and was
ratified by Congress on July 1, 1988. As of Aug. 1, 1993, it was in effect
between the United States and 29 nations: Argentina, Australia, Austria,
Belize, Burkina Faso, Canada, Croatia, Denmark, Ecuador, France, the Federal
Republic of Germany, Greece, Hungary, Ireland, Israel, Luxembourg, Mauritius,
Mexico, Monaco, the Netherlands, New Zealand, Norway, Poland, Portugal,
Rumania, Spain, Sweden, Switzerland and the United Kingdom.
The aim of the convention is to deter international child
abduction and to provide a mechanism for the prompt [FN1] return of abducted
children to their home country, where the tribunals can resolve the custody
issues, if any, on the merits. It helps stop wrongful removals or retentions
occurring after its entry into force in those states and applies to those
contracting states and the United States. [FN2] The countries that have
acceded to the convention have agreed that a child who is habitually resident
in a country that is a party to the convention, who is removed to or retained
in another country that is a party to the convention, in breach of that
parents custody rights, shall, subject to certain exceptions, be promptly
returned to the child's country of habitual residence.
Because New York custody orders and judgments are not entitled
to recognition in foreign countries, and thus are not directly enforceable
abroad, parents whose children have been abducted to other countries have been
frustrated for years in obtaining the return of their children. This reality
is as intertwined in U.S. history as is the emotional jungle that inspired its
partial cure.
Act of Implementation
The International Child Abduction Remedies Act (ICARA), an
implementing act whose provisions are additional to those of the treaty, took
effect on July 1, 1988. Its purpose was to establish procedures for the
implementation of the treaty in the United States and to empower U.S. courts
to determine only rights under the convention and not the merits of any
underlying custody dispute. [FN3] The act created a central authority [FN4] to
discharge the duties imposed upon the United States by the convention, and it
grants concurrent jurisdiction to federal and state courts to enforce the
Convention. [FN5]
Contracting states are required to take all appropriate
measures within their territories to implement the objectives of the
Convention [FN6] and are required to designate a "Central Authority" to
discharge the duties imposed upon them by it. [FN7] The Office of Citizens
Consular Services in the Bureau of Consular Affairs is designated as the U.S.
central authority. Its address is CA/OCS/CCS, Room 4817, U.S. Department of
State, Washington, D.C. 20520; telephone, (202) 736-7000; facsimile number
(202) 647-2835.
Article 7 of the convention requires that central authorities
co-operate with each other and promote co-operation among the competent
authorities in their respective states to secure the prompt return of children
and to achieve the other objectives of the convention. [FN8]
Custody, Habitual Residence
A parent need not have a custody order or judgment to invoke
the convention. To apply for the return of a child a parent must be actually
exercising "rights of custody" under the law of the country where the child
was "habitually residing" at the time of the abduction or wrongful retention
of the child. For purposes of the convention, "rights of custody" include
rights relating to the care for the child's person and, in particular, the
right to determine the child's place of residence. "Rights of access" include
the right to take the child for a limited period to a place other than the
child's habitual place of residence. [FN9]
The convention applies only to children less than 16 years of
age who have been "habitually residing" in a contracting state immediately
before the breach of custody or access rights. Even if a return proceeding is
pending, it ceases to apply on the day when the child becomes 16. [FN10] It
applies to cases where children have been wrongfully taken to or retained in
the responding jurisdiction. The procedure is summary and does not contemplate
a hearing on the merits of a custody dispute. Article 19 of the convention
provides that "A decision under the Convention concerning the return of the
child shall not be taken to be a determination on the merits of any custody
issue."
The convention applies only to wrongful removals or
retentions. [FN11] For purposes of enforcement proceedings brought under the
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.
[FN12]
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; and if at the time of removal or retention those rights
were 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. [FN13]
There need be no violation of a court order for the taking of
the child to be wrongful under the Hague Convention; i.e., it is enough that a
lawful custodian was deprived of association with the child, or that an
agreement has been breached.
Limited defenses are available in the summary proceeding at
the responding state. For example, if the proceeding for return of the child
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" will preclude return of the child. [FN14] Other defenses
which may be made 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 [FN15];
that there was consent to the removal or retention [FN16]; that return of the
child would expose him/her to physical or psychological harm "or otherwise
place the child in an intolerable situation" [FN17]; that the child objects to
being returned and is of such age and maturity that it is appropriate to take
account of his views, [FN18] and that human rights and fundamental freedom
would be abridged if the return were permitted. [FN19]
Judicial Remedies
The act [FN20] grants the United States District Courts and
the courts of each of the states concurrent original jurisdiction of actions
arising under [FN21] the convention. [FN22] As will be explained, a proceeding
under the convention is not a custody proceeding.
Any person seeking to initiate judicial proceedings under the
convention for the return of a child or for arrangements for organizing or
securing the effective exercise of rights of access to a child may do so by
filing a petition, commencing a civil action for the relief sought, in any
federal or state court that has jurisdiction of such action and that is
authorized to exercise its jurisdiction, in the place where the child is
located at the time the petition is filed. [FN23]
After receiving notice of a wrongful removal or retention of a
child, the judicial or administrative authorities of the contracting state to
which the child has been removed or in which it has been retained may not
decide rights of custody on the merits until it has been determined that the
child is not to be returned under the convention, or unless an application
under the convention is not lodged within a reasonable time following receipt
of the notice. [FN24]
The court in which such action is brought must decide the case
in accordance with the convention. [FN25] "Petitioner" means any person who in
accordance with the act, files a petition in court seeking relief under the
convention; "Respondent" means any person against whose interests a petition
is filed in court, in accordance with the act that seeks relief under the
convention; "Rights of access" means visitation rights, and the term "State"
means any of the several states, the District of Columbia and any
commonwealth, territory or possession of the United States. [FN26]
Neither the convention nor the act implies that the Uniform
Child Custody Jurisdiction Act governs questions of jurisdiction of the court
to make a determination under the convention. Section 75-d of the Domestic
Relations Law (DRL) governs jurisdiction of New York courts to make child
custody determinations. It provides in part that: "1. A court of this state
which is competent to decide child custody matters has jurisdiction to make a
child custody determination by initial or modification decree only when: (a)
this state (i) is the home state of the child at the time of commencement of
the custody proceeding, or (ii) had been the child's home state within six
months before commencement of such proceeding and the child is absent from
this state because of his removal or retention by a person claiming his
custody or for other reasons, and a parent or person acting as parent
continues to live in this state; ...."
It is clear from the quoted language that the statute deals
with jurisdiction to make a "child custody determination." Since "Hague
proceedings" do not involve custody determinations, we believe that the UCCJA
need not be considered for purposes of determining jurisdiction. The presence
of the abductor or child within the state or jurisdiction is sufficient to
confer jurisdiction under the convention as long as adequate notice is given.
Section 75-e of the DRL provides that before issuing a decree
under the UCCJA, reasonable notice and an opportunity to be heard shall be
given to the contestants; any parent whose parental rights have not been
previously terminated; and any person who has physical custody of the child.
Nationals of the contracting states and persons who are
habitually resident within those states are entitled in matters concerned with
the application of the convention to legal aid and advice in any other
contracting state on the same conditions as if they themselves were nationals
of and habitually resident in that state. [FN27]
New York Cases
The reported New York cases construing the convention or act
are in their infancy both in number and substance. They consider the questions
of "habitual residence" and jurisdiction. In Sheikh v. Cahill, [FN28] Justice
W. Rigler of the Supreme Court, Kings County, denied the mother's application
for custody of the parties' child and directed the return of the child to
England. In 1978, in a proceeding in which the father was a party, the English
court ordered that the child be in the mother's custody in England and that
the father have visitation in the United States.
As a result of the mother's failure to return the child to
England, an order was issued in April 1989 from the English High Court of
Justice, finding a wrongful retention within the meaning of the Hague
Convention. An initial joint custody decree was made in New York in 1984.
Justice Rigler applied the convention since the child was less than 16 and
lived in England for 2- 1/2 years, finding the child to have habitually
resided abroad. The court concluded that the child had been wrongfully
detained in New York for less than a year, in violation of the new order,
necessitating his return to England.
In L.H. v. Youth Welfare Office [FN29] the child was born in
1988 in Suffolk County in New York. The father, who was in the army, was
transferred to a base in Germany in 1989, where he moved with the family.
Several months after their arrival the 9-month-old child was severely and
brutally beaten. Thereafter, the Youth Welfare Office of Wiesbaden, Germany,
charged the parents with criminal child abuse and obtained an emergency
removal order for all three children. The infant was placed with respondents
who were U.S. citizens residing in Germany. In 1990, the German Court issued a
decision finding that the mother neglected her parental duty toward the
subject child and directing that the Youth Welfare Office have custody, with
foster placement. The German court specifically determined it had jurisdiction
over the infant's custody on the basis that Germany was the child's main
residence.
The mother returned to New York and commenced a custody
proceeding in Family Court in Suffolk County in 1990. The Family Court held
that New York did not have jurisdiction to issue a custody determination
and/or to modify the German custody orders within the meaning of DRL s75-d. As
of the date of the commencement of this proceeding, the child had been
residing continuously and exclusively in Germany for more than 20 months.
Therefore, New York is not the child's "home state" within the meaning of DRL
s75-d(1). Based on the events and proceedings in Germany, the court concluded
that it was in the child's best interests to remain in the foreign forum,
further stating that it did not have jurisdiction under the UCCJA.
The court noted that since the German court had continuing
jurisdiction over the custody matter, it precluded the New York court from
modifying orders previously entered in the foreign court, those same orders
that were made in proceedings that did not appear to offend either the
policies of the UCCJA or the due process motions of U.S. and New York
Constitutions. The Family Court denied the mother's application for custody of
her child and to stay all proceedings pending in Germany, relative to the
custody, guardianship and/or adoption of the infant. As there was no wrongful
removal or retention, the court held that the Hague Convention did not apply.
Separation Accord
In David S. Zamira S., [FN30] the parties, who were Canadian
nationals, entered into a separation agreement before the birth of their
second child. Pursuant to the agreement, the wife had custody of the first
child. The agreement provided that the wife "shall make the son available to
the husband for visitation within the Metropolitan Toronto vicinity." The
agreement was silent as to the custody and visitation of the second child, who
was not born at the time of the agreement.
In 1989, the Supreme Court of Ontario issued an order
preventing the wife from removing them from Ontario and from obtaining
passports for the children. On Oct. 5, 1989, the wife and children left
Ontario and the husband followed the procedures set forth in the Hague
Convention to secure the return of the children. On Dec. 5, 1989, the Ontario
Ministry of the Attorney General forwarded an application for the return of
the children to the United States Department of State.
In September 1990, the Supreme Court of Ontario held that the
wife wrongfully and improperly removed the children from the Ontario
jurisdiction and avoided or refused service, although duly served with the
1989 order that directed her not to leave. In November 1990, the Supreme Court
of Ontario issued a similar order adding that the wife was withholding the
children from the husband, who was entitled to custody and access to the
children. In December 1990, the husband moved for enforcement of this order in
New York.
The Family Court, Kings County held that both children in this
case were "habitually resident" in Ontario immediately before their removal
and that the husband was exercising his rights, as to his son, and would have
exercised his rights as to his daughter but for her removal. It held that the
wife acted in contempt of the Ontario Supreme Court's order, by leaving the
country. The husband had an equal right to custody of the parties' daughter
because the separation agreement did not include any arrangement as to her
custody. The Family Court held that the Ontario Supreme Court orders of
September and November 1990 constituted a declaration that the removal or
retention of the children was wrongful within the meaning of the Hague
Convention.
Family Court gave full faith and credit to the orders of the
Ontario Supreme Court, including the findings made and held that the husband
has met his burden of showing, by a preponderance of the evidence, that the
removal of these children from Ontario was "wrongful" and that the wife did
not meet her burden of showing, by a preponderance of the evidence, that the
children were so settled in their new environment in Brooklyn that they should
not be uprooted and returned to Ontario.
Under the circumstances presented here, the Family Court did
not find the husband's proceeding to return the children was untimely, nor did
it find that the husband acquiesced to the removal of the children. The court
held that both children should be returned to Ontario forthwith, where a
preliminary hearing could be held to determine the issues of interim custody
and visitation.
In Green v. Green, [FN31] Justice Rigler, held that DRL s75-e
requires "reasonable notice and an opportunity to be heard," to confer
jurisdiction in a Hague proceeding. As the mother had commenced an action
against the defendants in the New York Supreme Court to enjoin them from
removing the children to Israel, and the father served her attorney with a
cross-motion to include a Hague Convention petition within that action, this
was sufficient to confer jurisdiction.
FN1. See Article 1
FN2. Hague Convention, Article 35.
FN3. The International Child Abduction Act, Pub L. No.
100-300, 102 Stat.437- 442; codified as amended at 42 USC ss11601-11610; See
42 USC 11601 (b) for the congressional intent.
FN4. 22 CFR 94:2; See 42 USC 11606.
FN5. Regulations are found at 22 CFR Part 94; s53 Fed Reg
23608 [June 23, 1988].
FN6. Article 2.
FN7. Article 6.
FN8. Among other things, they are required to take all
appropriate measures to discover the whereabouts of a child who has been
wrongfully removed or retained; to prevent further harm to the child or
prejudice to interested parties by taking or causing to be taken provisional
measures; to secure the voluntary return of the child or to bring about an
amicable resolution of the issues; to initiate or facilitate the institution
of judicial or administrative proceedings with a view to obtaining the return
of the child and, in a proper case, to make arrangements for organizing or
securing the effective exercise of rights of access; where the circumstances
so require, to provide or facilitate the provision of legal aid and advice,
including the participation of legal counsel. and advisers; and to provide
such administrative arrangements as may be necessary and appropriate to secure
the safe return of the child.
FN9. See Article 5.
As to the Rights of Access, Article 21 provides that an: "...
application to make arrangements for organizing or, securing the effective
exercise of rights of access may be presented to the Central Authorities of
the Contracting States in the same way as an application for the return of a
child. The Central Authorities are bound by the obligations of co-operation
which are set forth in Article 7 to promote the peaceful enjoyment of access
rights and the fulfillment of any conditions to which the exercise of those
rights may be subject. The Central Authorities shall take steps to remove, as
far as possible, all obstacles to the exercise of such rights. The Central
Authorities, either directly or through intermediaries, may initiate or assist
in the institution of proceedings with a view to organizing or protecting
these rights and securing respect for the conditions to which the exercise of
these rights may be subject."
FN10. Article 4 provides:
"The Convention shall apply to any child who was habitually
resident in a Contracting State immediately before any breach of custody or
access rights. The Convention shall cease to apply when the child attains the
age of 16 years."
FN11. Article 35.
FN12. 42 USC s11602(f)(2).
FN13. Article 3.
FN14. Article 12.
FN15. Article 13.
FN16. Ibid.
FN17. Ibid.
FN18. ibid.
FN19. Article 20.
FN20. Publ. No. 100-300; 42 USC ss11601-11610.
FN21. 42 USC s11602(2) provides that the term "Convention" for
purposes of the article, "means the Convention on the Civil Aspects of
International Child Abduction done at the Hague on Oct. 25, 1980."
FN22. Article 29.
FN23. 42 USC 11603(b).
FN24. Article 16.
FN25. 42 USC 11603 (d).
FN26. 42 USC 11602.
FN27. Article 25.
FN28. (1989) 145 Misc2d 171, 546 NYS2d 517.
FN29. (1991) 150 Misc2d 490, 568 NYS2d 852.
FN30. ___ Misc2d ___, 574 NYS2d 429 (Fam. Ct., Kings Co.,
1991).
FN31. New York Law Journal, July 6, 1993, P. 33, Col. 2, Sup.
Ct., Kings Co. (Rigler, J.)
Joel R. Brandes and Carole L. Weidman have law offices in New
York City and Garden City. Mr. Brandes is a co-author, with the late Doris
Jonas Freed and Henry H. Foster, of Law and the Family, New York (Lawyers'
Co-Operative Publishing Co., Rochester, N.Y.) Ms. Weidman co-authors the
annual supplements with him.
10/26/93 NYLJ 3, (col. 1)
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