ORANGE COUNTY ♦ LOS ANGELES COUNTY ♦ RIVERSIDE ♦ SAN BERNARDINO

949-262-3434

DCWdivorce@aol.com


Hague Convention for Abducted Children

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that provides for an expeditious method to return a child taken from one member nation to another. The Convention was drafted to “ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully kept in a country which is not their country of habitual residence.”  The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16. The Convention mandates return of any child who was a “habitual resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention provides that the removal or retention of a child is “wrongful” whenever:

"a. 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

"b. 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." These 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 the country of habitual residence.

"From the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is . . . wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise."

The Convention mandates return of any child who was a “habitual resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child. Because the determination of “habitual residence” is primarily a “fact based” determination and not one which is encumbered by legal technicalities, the court must look at those facts, the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return. The Convention limits the defenses against return of a wrongfully removed or retained child. Those defenses are:

(a) by preponderance of evidence, that Petitioner was not “actually exercising custody rights at the time of the removal or retention” under Article 13; or

(b) by preponderance of the evidence, that Petitioner “had consented to or acquiesced in the removal or retention” under Article 13; or

(c) by preponderance of the evidence, that more than one year has passed from the time of wrongful removal or retention until the date of the commencement of judicial or administrative proceedings, under Article 12; or

(d) by preponderance of the evidence, that the child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the Petitioner and that it is appropriate to heed that objection, under Article 13; or

(e) by clear and convincing evidence, that “there is 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,” under Article 13(b); or

(f) by clear and convincing evidence, that return of the child would subject the child to violation of basic human rights and fundamental freedoms, under Article 20.

To determine how the Hague Convention applies to your child custody situation, you need experienced counsel.

Contact David C. Winslow at 949/262-3434 for an immediate consultation.




©2011 David C. Winslow - Family Law Attorney
19900 MacArthur Boulevard
Suite 800
Irvine, California 92612