Hague Convention on Civil Aspects of International Child Abduction

Posted on February 28, 2011 10:19am

What is the Hague Convention?

The Hague Conference is an international organization of member states whose purpose is “to work for the progressive unification of the rules of private international law.” The Hague Conference does business through “Conventions,” which are multilateral treaties negotiated and adopted by the member countries. Several conventions have been adopted over the years. The Hague Convention on the Civil Aspects of International Child Abduction is one such convention, and it took effect in the United States in 1988. When family law attorneys talk about the Hague Convention, they are talking about the Hague Convention on the Civil Aspects of International Child Abduction.

The Hague Convention’s purpose, according to the Preamble, is to “insure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of origin.”

How do I start a Hague Convention action?

A parent commences a Hague Convention action in the U.S. by filing and serving a Petition for Return. In that petition, the parent alleges that a wrongful removal or retention of the children has occurred and that the court should order the children returned to the children’s habitual residence (and thus to the petitioning parent’s care). The petitioning parent can file the Petition for Return in either state or federal court. Although the type of court is up to the parent, that parent must select a court in the place where the children are located. So, for instance, if the children are being wrongfully retained in Seattle, Washington, the petitioning parent must file the petition in either King County Superior Court or in the U.S. District Court, Western District of Washington.

What is the Central Authority and will it help me?

Each country that has adopted the Hague Convention has also agreed to create a Central Authority to provide limited assistance to the petitioning parent. The U.S. Department of State’s Office of Children’s Issues is the designated Central Authority for the United States. The State Department will not play a direct role as a legal representative in any Hague Convention proceeding, nor will it take sides in the dispute. However, it will provide some assistance, such as referring petitioning parents to qualified legal counsel, providing attorneys with information on conducting a Hague Convention case, and issuing form letters both to the court and to the abducting parent explaining how the Hague Convention operates.

It is important for any petitioning parent to remember, however, that a Hague Convention action is only started by filing a Petition for Return with the court and serving that petition on the other parent.

How quickly will the court determine a Hague Convention action?

Once the petitioning parent has filed and served the Petition for Return, the court must make a final decision within six weeks. The court has the power to stay any other action in any other pending cases that may impact the court’s decision, such as a divorce action. Moreover, the court is not bound by any custody decisions that might have been made by other courts after the wrongful removal or retention occurred.

What do I have to prove to win a Hague Convention action?

The petitioning parent must prove by a “preponderance of the evidence” that the abducting parent has wrongfully removed or retained the children from their habitual residence. Preponderance of the evidence is the lowest standard of proof in the U.S. Compare that, for instance, to “beyond a reasonable doubt,” which is the highest proof standard. It is much easier to prove something is true by a preponderance of the evidence than it is to prove it is true beyond a reasonable doubt.

If a parent is able to prove the children have been wrongfully removed or retained, and if the abducting parent has had the children for less than a year, the abducting parent’s duty to return the children is absolute.

Are there any defenses to a Hague Convention action?

There are defenses to a Hague Convention action. First, the parent accused of abducting the children might challenge the underlying claims being made by the petitioning parent. So, for instance, the parent accused of abducting the children might argue that the children’s habitual residence is actually with that parent as opposed to the petitioning parent. If it turns out the children’s habitual residence is with the parent accused of having abducted the children, the court would deny the petitioning parent’s Petition for Return.

Second, the Hague Convention provides defenses to returning the children even in the event the petitioning parent is able to prove that the children have been has wrongfully removed or retained from their habitual residence. One defense is that the children have been with the abducting parent for over a year and are now settled in their new environment. Other defenses include claiming that the petitioner was not exercising custody at the time of the alleged abduction, that the petitioner acquiesced to the removal or retention of the children, and that there is a grave risk of physical or psychological harm to the children if returned to the petitioning parent.

Some of these defenses only require a preponderance of evidence to establish as true. Other defenses require “clear and convincing” proof, a much more difficult standard.

What should I do if I am involved in a case that concerns the Hague Convention?

Regardless of whether you are a parent whose children have been wrongfully removed or retained or whether instead you are a parent who has been accused of abducting your children, you should retain an experienced attorney immediately. Although a Hague Convention action is commenced and completed very quickly, it requires competent counsel for the very best results, as other areas of international law can often impact a case that involves the Hague Convention.

McKinley Irvin prosecutes and defends Hague Convention and other international custody actions across Western Washington and is available to assist you in this complex area of the law.

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