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An action brought pursuant
to the Hague Convention on the Civil Aspects of International Child
Abduction (the "Convention") is an action which, if successful, results in
the physical return of a child to his or her habitual residence. The
International Child Abduction Remedies Act (" ICARA") sets forth the
procedures applicable to handling Hague Convention cases in the United
States. Pursuant to ICARA, both State and Federal courts have original
concurrent jurisdiction to hear Hague Convention cases. 42 U.S.C. 11603(a).
Congress implemented the Hague Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670 ("Hague
Convention") when it passed the International Child Abduction Remedies Act
("ICARA"). The United States ratified and implemented the treaty on July 1,
1988. The Hague Convention was enacted to "secure the prompt return of
children wrongfully removed to or retained in any Contracting State" and to
"ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting
States." Hague Convention, art. 1, T.I.A.S. No. 11,670, at 4. Under ICARA, a
person may petition a court authorized to exercise jurisdiction in the place
where a child is located for the return of the child to his or her habitual
residence in another signatory country. 42 U.S.C. 11603; Hague Convention,
art. 3(a), T.I.A.S. No. 11,670, at 4. The convention is intended as a rapid
remedy for the left-behind parent to return to the status quo before the
wrongful removal or retention. The court's inquiry is limited to the merits
of the abduction claim and not the merits of the underlying custody battle.
It may not consider the merits of the custody case. 42 U.S.C. 11601(b)(4).
The Convention provides
for a return of a child less than sixteen years of age who has been (1)
wrongfully removed or retained (2) from her or her habitual residence (3) in
violation of the custody rights of a person or institution. Convention,
Articles 1 and 3. A wrongful removal or retention requires a showing that
rights of custody have been breached according to the law of the child’s
habitual residence, and that those rights were actually being exercised, or
would be exercised but for the wrongful removal or retention. The rights of
custody may arise in particular 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. Convention, Article 3.
In order for the
Convention to apply, the child must have been habitually resident in a
Contracting State immediately before any breach of custody or access rights.
If the child was not removed from a country which was the child’s habitual
residence, there is no right of return to that country. Convention, Article
31.
In order to determine
whether a wrongful removal has occurred, it is necessary to establish
whether the country from which the child has been removed or retained is the
child’s habitual residence. The term habitual residence is not defined in
the Convention.
In a Hague case it is the
Petitioners burden to prove that the child was wrongfully removed from his
habitual residence by a preponderance of the evidence. 42 U.S.C.
11603(e)(1)(A). If the petitioner shows that the child was wrongfully
removed, the court must order the child's return unless the respondent
demonstrates that one of the four narrow exceptions apply." 42 U.S.C.
11601(a)(4)). Two of those exceptions, which must be established by "clear
and convincing evidence," are either that "there is a grave risk that the
child's return would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation," Convention, Article
13(b), or that return of the child "would not be permitted by the
fundamental principles . . . relating to the protection of human rights and
fundamental freedoms." Convention, Article 20. 42 U.S.C. 11603(e)(2)(A). The
other two exceptions to the presumption of repatriation, which must be
established by a preponderance of the evidence, are either that judicial
proceedings were not commenced within one year of the child's abduction and
the child is well-settled in the new environment, Convention, Article 12, or
that the Appellant was not actually exercising custody rights at the time of
the removal, Convention, Article 13 (a). In addition to the four exceptions,
the court may "refuse to order the return of the child if it finds that the
child objects to being returned and has attained an age and degree of
maturity at which it is appropriate to take account of its views."
Convention, Article 13.
The removal of a child
from the country of his habitual residence cannot be 'wrongful' under the
Convention unless the complaining parent was 'exercising lawful custody
rights' to the child at the moment of removal. Whether a person was
exercising 'lawful' custody rights at the time of the child's removal must
be determined under the law of the child's habitual residence. Convention,
Article 3.
The rights of custody may
arise by operation of law or by reason of a judicial or administrative
decision or agreement having legal effect under the law of the country of
the child's habitual residence. Convention, Article 3.
The reference to the 'law
of the State in which the child was habitually resident' includes that
country's or state's conflict of laws rules. Thus, on the question whether
the retention/removal breached a persons 'lawful custody rights,' the court
must look to the choice of law rules of the child's habitual residence to
see if it would apply its own internal law or defer to another country's or
state's law.
The Convention does not
define 'exercise.' However, it has been held that absent a ruling from a
court in the country of habitual residence, courts must liberally find a
parent is 'exercising' custody rights whenever a parent with de jure custody
rights keeps, or seeks to keep, any sort of regular contact with the child.
'[A]s a general rule, any attempt to maintain a somewhat regular
relationship with the child should constitute 'exercise.' ... [I]f a person
has valid custody rights to a child under the law of the country of the
child's habitual residence, that person cannot fail to 'exercise' those
custody rights under the Hague Convention short of acts that constitute
clear and unequivocal abandonment of the child.'
The normal procedures for
proving foreign law need not be followed in Hague Convention proceedings.
The court may take direct judicial notice of the law of the habitual
residence. Convention, Article 14. An attorney's declaration as to the
application of another country's law generally will be acceptable.
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