International Child Custody Cases

Cases involving children in different countries are often the most complex and difficult cases I handle. Not only are the stakes very high, but so are the issues to be dealt with. Here are some of the major issues:
  • CHOICE OF LAW - which countries' law is going to be applied? There are complex rules concerning this, most of the time this is governed by The Hague Convention. However, not all countries abide by it, and even when they do it can take a long time to resolve the issues.
  • CONFLICTING ORDERS - what happens when there are two competing Orders? Click HERE to read more.
  • PRACTICAL CONCERNS - usually the decision about which country the child is going to live in is going to dictate the relationship of the parties to the children. If Dad lives in China while the Mother & Child live in Texas, then it is going to be very difficult for Dad to have any relationship with his child.
  • COST - international custody cases are usually the most expensive type of case. Often times the ultimate winner of these cases is the one who can afford to pay the best lawyer the most. That isn't how a justice system should work, but that is the reality. Cases like this can cost well over $100,000 per side.

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Here is a summary of The Hague Convention:

The Hague Convention on the Civil Aspects of International Child Abduction

History and General Mechanics of the Hague Convention on the Civil Aspects of International Child Abduction

The Hague Convention  was created in 1980 at the Hague Conference on Private International Law. The convention was intended to be a way for nations to collaborate and solve abduction cases more quickly. Because of the individual sovereignty of the many nations of the world, countries only have jurisdiction within their own borders and cannot command each other’s legal systems, judiciaries, or law enforcement.

The Hague Abduction Convention is a civil law mechanism to assist parents or guardians in overcoming these legal obstacles to returning their child home.  The Convention does not dictate who should have custody of the child but rather determines in which nation the custody case should be heard.

The two major purposes of the Convention are 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.”

The Convention goes on to define removal as wrongful where “it is in breach of rights of custody attributed to a person, an institution or any other body… under the law of the State in which the child was habitually resident immediately before the removal or retention” and at the time of removal or retention, “those rights were actually exercised... or would have been so exercised but for the removal or retention.”

To illustrate this, suppose a father takes his 13-year-old son to live with him in France despite the fact that the boy’s mother has full custody rights and her son has lived with her in the United States his entire life. The removal of the boy by his father to France is indeed wrongful because it breaches the mother’s custody rights under U.S. law and because she was exercising those rights when her son was removed. The Convention does only apply to children under the age of 16 who were habitual residents in a Contracting State immediately before the breach of custody or access rights.

The Convention also requires that each participating nation create a “Central Authority” to carry out the duties created in the Convention and requires that these Central Authorities “take all appropriate measures” to find these children, protect them, and assist in returning them to those who hold custody.

Any person, institution or other body claiming wrongful removal of a child in breach of custody rights may apply to either the Central Authority of the child’s habitual residence or to the Central Authority of any other participating nation for help in securing the return of the child.

The Central Authority of the State where the child is located must then take all appropriate measures in order to secure the voluntary return of the child.

The agencies and authorities of Contracting States also have a duty to act as quickly as possible in resolving these matters.

A Contracting State must immediately order for the return of a wrongfully removed child when less than a year has passed between the removal and the commencement of proceedings in the State where the child is located.

Even in situations where proceedings have commenced more than one year after the removal, the national authorities must sill order the return of the child, “unless it is demonstrated that the child is now settled in its new environment.”

However, there are also several situations in which the requested State is not required to order the return the child. First, the nation is not required to order return if the person opposing return of the child is able to establish either of the following: 1) that the holder of custody rights was not actually exercising those rights at the times of removal or that the holder had consented or acquiesced to the removal or 2) that there would be grave risk of physical or psychological harm to the child if he or she was returned.

Second, the national authorities may refuse to return the child if they find that the child has objects to be being returned and is old enough and mature enough for his or her views to be taken into account.

Finally, the return of a child may be refused if return would subject the child to violations of his or her basic human rights or fundamental freedoms.

Additionally, the State where the child is located may examine the law and decisions of the country of the child’s habitual residence to determine if there has been wrongful removal and may also request that the applicant requesting return supply a determination by the country of habitual residence that removal was wrongful.

Again, the Contracting State is not making a determination on who rightfully has custody; it is only determining where a custody proceeding should be properly take place. If the State finds that the child should not be returned under the Convention or an application under the Convention was not lodged in time, then the authorities of that State may make a decision on the merits of rights of custody.

Although the Convention focuses primarily on return of a child to a habitual residence, applicants can also seek access to a child rather than return.

Those seeking rights of access to a child may apply in the same manner as applying for return of a child and the Central Authorities bear the same obligation to resolve these disputes as quickly as possible.

Seeking Return of a Child to the United States from Another Nation Under the Hague Abduction Convention

The United States adopted the Hague Convention on the Civil Aspects of International Child Abduction in 1988.

Currently the United States partners with 71 other countries under the Hague Abduction Convention and the Central Authority for the United States is the Department of State’s Office of Children’s Issues.

If your child was abducted to a country that is one of the United States’ partners under the Hague Convention and the child is younger than age 16, you may submit an application under the Hague Abduction Convention. If your child was not abducted to one of the 71 partner countries or is older than 16, then you cannot seek assistance under the Hague Convention.

In an application for assistance under the Hague Abduction Convention, applicants must specify whether they are seeking return of the child or access to the child and supply habitual residence information, date of wrongful removal, and the custody agreement. The application is available on the State Department’s website in both English and Spanish, as well as more detailed instructions and a helpful checklist to assist in the application process. Although it is not necessary to have the custody decree to file an application, applicants must be sure that they were actually exercising the right of custody, either joint legal or sole legal, at the time of abduction and must not have given permission for removal.

Applications may be submitted either to the Central Authority where the child is believed to be or to the State Department. The State Department recommends that the application be submitted to them so that it may be checked for completeness and compliance with the Convention. If the application meets all requirements, the State Department will forward it on the Central Authority of the country where the child is located.

The State Department also emphasizes that applications should be submitted as soon as possible after the removal has taken place. Allowing more than a year to pass before filing could jeopardize the case.

Once the application is filed with the foreign Central Authority, that agency is responsible for processing it. At this point, procedures and implementation of the Convention will vary from country to country. The U.S. State Department employs case officers who have an understanding of other countries’ proceedings and will be able to assist applicants in understand each country’s process.

In some situations, filing the application will be enough to persuade the taking parent to return the child. However, most Hague Convention cases go to trial and will require that the left-behind parent retain an attorney in the country where the child is located.

State department case officers may not act as agents or attorneys in legal proceedings, but they will have information helpful to applicants who may need to hire legal counsel in a foreign country.

1980 Hague Convention on the Civil Aspects of International Child Abduction

Convention Partners with the United States:

  • Argentina (1991)
  • Australia (1988)
  • Austria (1988)
  • The Bahamas (1994)
  • Belgium (1999)
  • Belize (1989)
  • Bosnia and Herzegovnia (1991)
  • Brazil (2003)
  • Bulgaria (2005)
  • Burkina Faso (1992)
  • Canada (1988)
  • Chile (1994)
  • China (Hong Kong & Macau  ONLY)
    • Hong Kong (1997)
    • Macau (1999)
  • Colombia (1996)
  • Costa Rica (2008)
  • Croatia (1991)
  • Cyprus (1995)
  • Czech Republic (1998)
  • Denmark (1991)
  • Dominican Republic (2007)
  • Ecuador (1992)
  • El Salvador (2007)
  • Estonia (2007)
  • Finland (1994)
  • France (1983)*
  • Germany (1990)
  • Greece (1993)
  • Guatemala (2008)
  • Hungary (1988)
  • Iceland (1996)
  • Ireland (1991)
  • Israel (1991)
  • Italy (1995)
  • Latvia (2007)
  • Lithuania (2007)
  • Luxembourg (1988)
  • The Republic of Macedonia (1991)
  • Malta (2003)
  • Mauritius (1993)
  • Mexico (1991)
  • Monaco (1993)
  • Montenegro (1991)
  • Morocco (2012)
  • Netherlands (1990)
  • New Zealand (1991)
  • Norway (1989)
  • Panama (1994)
  • Paraguay (2008)
  • Peru (2007)
  • Poland (1992)
  • Portugal (1998)
  • Romania (1993)
  • Saint Kitts and Nevis (1995)
  • San Marino (2008)
  • Serbia (1991)
  • Singapore (2012)
  • Slovakia (2001)
  • Slovenia (1995)
  • South Africa (1997)
  • Spain (1988)
  • Sri Lanka (2008)
  • Sweden (1989)
  • Switzerland (1988)
  • Trinidad and Tobago (2013)
  • Turkey (2000)
  • Ukraine (2007)
  • United Kingdom (1988)
    • Bermuda (1999)
    • Cayman Islands (1988)
    • Falkland Islands (1998)
    • Isle of Man (1991)
    • Montserrat (1999)
  • Uruguay (2004)
  • Venezuela (1997)
  • Zimbabwe (1995)