Family & Divorce Law Services

III  INTERNATIONAL LAW:  THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

International child custody matters are the most complex of all. The United States has signed some portions of Hague Convention but not others. While the US is a signatory to “Civil Aspects of International Child Abduction” and to the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters”, it has not signed other portions of the Hague Convention such as the “Hague Convention on the Recognition of Divorces and Legal Separations.” However, most courts refer to the pieces of the convention which do apply as the “Hague Convention” and it is important to understand which portion of the treaty is being asserted. The Hague Convention promulgates procedures for resolving jurisdictional dilemmas in custody disputes involving more than one country.  As with all treaties, it is valid only between those countries which have signed the treaty.  Many countries have not signed.  In dealing with an international custody dispute the first step is to ascertain if the other country is a signatory to the Hague Convention.  The easiest way to make this determination is to either call the State Department, or call your senator or congressional representative and ask the constituent services department for the information.

The Hague Convention was promulgated to promote international cooperation among countries in order to secure the prompt return of children wrongfully taken out of their jurisdictions. The Hague Convention was adopted on October 25, 1980.  On April 28, 1988, the United States implemented the Hague Convention via the enactment of the International Child Abduction Remedies Act.

Signatories to the Hague Convention, or contracting states, agree to participate in the return of a child to his or her country of habitual residence when the child is wrongfully removed or retained in another country. “The underlying principle of the Hague Convention is to secure a swift return of the abducted child to the state in which the child was a habitual resident without undertaking a full investigation of the merits of the abductor's case.”  Therefore, it is irrelevant whether or not a child custody determination has been made in a particular case.  The role of judicial authorities is simply to “promptly restore the factual situation that existed prior to a child's removal or retention.” 

One of the goals of the Hague Convention is to avoid assimilation of a child into a strange environment which could lead to subsequent separation difficulties.  If a child is not returned to the place of habitual residence after he or she has been removed or retained in another country for a year or greater, judicial authorities are only required to return the child if the child has not settled in his or her new environment. “If the proceeding was initiated within one year of the child's abduction, judicial authorities within the Contracting State are required to return the child “forthwith.” Thus, it is important that the petitioner, or non-abducting parent, institute proceedings immediately following the child's abduction from the habitual residence. The child's departure need not have been unlawful at its inception. A child retained after regularly scheduled or agreed upon visitation or refused to be allowed to return after a family vacation would be included in the act's purview.

A contracting state will not be required to return a child to his or her habitual residence in all cases.  In addition to the above result after a child has remained in the removal or retained country greater than one year, the Hague Convention recognizes several exceptions to requiring the return of a child to his or her habitual residence.  A contracting state is not required to return a child to his or her country of habitual residence if:

• the petitioner had no right of custody or access at the time of the removal or retention;
• the petitioner acquiesced to the removal or retention;
• the petitioner failed to exercise his or her right of custody;
• a “grave risk” of harm to the child would result from the return of the child to the state of habitual residence or the child would be placed “in an intolerable situation”;
• the child is settled in a new environment;
• return “would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms;” or
• the child is of the appropriate age and maturity and objects to the return.

When examining the exceptions to mandatory return of a child to his or her habitual residence, one must also consider the following:

• The Hague Convention did not define habitual residence.  It is a question of fact, and differs in that respect from domicile.
• Rights of custody include rights relating to the care of the person of the child, and in particular, the right to determine the child's place of residence.
• Agreements between parties about custody which have legal effect in the state of habitual residence also form a source of custody rights under the Convention.
• When considering whether custody rights are actually exercised, a parent who places a child in another's care for a short period of time will still be considered to be exercising custodial rights.
• The Hague Convention ceases to apply when a child attains the age of 16 years old.

Each contracting state must set forth the creation of a Central Authority to facilitate the parental abduction proceeding. “The Central Authority is responsible for various receiving and outgoing duties.”  The incoming request duties include locating an abducted child, instituting proceedings to effect a return, assisting administrative technicalities of a safe return, providing information concerning the laws of a state or background of a child in conjunction with an application, providing legal assistance and counsel, and endeavoring to amicably resolve a kidnaping situation.  Central Authorities also have responsibilities in outgoing applications, applications seeking the return of children who have been taken to one of the contracting states. An application may be submitted either to the Central Authority of the child's habitual residence, or with the Central Authority of any other contracting state.  Nevertheless, the use of a Central Authority is optional; a party may bypass these authorities by bringing an action on their own behalf.

If a child is abducted to a country who is not a signatory to the Hague Abduction Convention, the non-abducting parent can seek legal remedies against the abductor from both the civil and criminal justice systems.The best recommendation for non signatory countries is to retain co-counsel in the other country to suggest means to working within the legal system of the other country to follow up all possible avenues of redress. Many countries, although not signatories of the act, use the act as a guideline to see if due process has been offered and to act in concert with other courts where the best interest of the child is concerned. American law has built in checks and balances. We pride ourselves on having equality before the law.  Because of this historical perspective, many attorneys have a superior attitude toward other legal systems. However, if a child has been abducted to a non signatory nation, there is often no choice but to work within the framework of that judicial system. It would be useful to retain the services of an attorney in the foreign country. Foreign counsel may be aware of the workings of the system how justice is administered which may reveal more avenues to pursue remedies than were apparent at first glance.

The North Carolina General Statutes specifically apply to Hague Convention countries through the UCCJEA sections 50A-105 and 50A-302. Our courts will, also, review foreign judgments and orders to see if they comply with due process and that the foreign court applies a standard similar to the best interest of the child.  While the court elected not to award full faith and credit to a Turkish order, specifically stating, “The Turkish court's order did not discuss the best interest of the children, but instead talked about defendant's position and status in the community, the importance of Islam, circumcision and defendant's place in society. Therefore, Turkish law is not in conformity with the UCCJA, nor is it in conformity with the laws of North Carolina.” Tataragasi v Tataragasi 477 SE2d 239, NCApp 1996. If such safeguards are present, it is possible that foreign judgments will be enforced. (see Klont v Klont 130 Mich.App. 138, 342 N.W.2d 549(1983) quoted favorably in Tataragasi v Tataragasi, supra ) _____________________________________________________

2) Home state means the state in which the child immediately preceding the time involved lived with the child's parents, a parent or a person acting as parent, for at least six consecutive months. In re Bhatti, 98 N.C.App 493, 495, 391 S.E.2d 201, 202 (1990).
3) Taking Away the Pawns: International Parental Abduction & the Hague Convention, 20 NCJILCR 137, 138 (1994).
4) Id.
5) Id.
6) Addressing International Abduction, Family Law Forum, Volume 21, Number 2, December 2000.
7) A child is wrongfully removed or retained if the non-abducting parent's custody rights have been actually exercised, either jointly or alone, or would have been so if the removal or retention had not occurred.  Taking Away the Pawns, 20 NCJILCR at 149.
8) International Child Abduction, U.S. Department of State Bureau of Consular Affairs, January 1995.
9) Taking Away the Pawns, 20 NCJILCR at 146.
10) Id.
11) Id.
12) Id.
13) Id.
14) Id.
15) Id.
16) Id.
17) Id.
18) Id. at 151.
19) International Child Abduction at 10.

FAIR PLAY, SUBSTANTIAL JUSTICE, AND NO FORUM SHOPPING:
   Jurisdictional Considerations In Child Custody Cases
   By Victoria Bender and Hope Murphy

I. STATE LAW - UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA)

II   FEDERAL LAW - PARENTAL KIDNAPING AND PREVENT ACT (PKPA)

III  INTERNATIONAL LAW - THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

IV CONCLUSION

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