The Hague Convention and International Kidnapping

February 13th, 2015 at 8:06 pm

Connecticut family law attorney, Connecticut divorce attorney, international child custody,For separated or divorced parents, the issue of traveling with a child can sometimes become contentious. One parent may even try to interfere with the other parent’s custodial or visitation rights by taking or kidnapping the child from that parent. This issue becomes even more serious when it comes to international kidnapping. Fortunately, over 80 countries, including the U.S., are party to a treaty called the Hague Convention, which provides for the return of children who have been abducted across international lines.

What does the Hague Convention Do?

The Hague Convention sets forth standards for returning children under the age of 16 to their country of habitual residence. Under the Convention, a parent can petition for the return of an abducted child from one Hague Convention country to another. To enforce the petition, parents can file lawsuits in the country to which the child has been abducted. In the U.S., a parent would file suit either with a local state court or with the local U.S. District Court.

It is important to note that the Convention does not provide rules for child custody determinations, and does not deal with determining the child’s best interests. Rather, the Convention applies in cases where custody determinations have already been made. The goal of the Convention is to preserve the original custody arrangement—to return the child and the custody decisions to the original country. Its purpose is to deter parents from forum shopping by crossing international borders in order to find a court more sympathetic to their preferences. Another important detail is that if a petition succeeds, the child is returned to his or her original country, and not necessarily to the left-behind parent.

What Constitutes Abduction?

To constitute child abduction under the Hague Convention, a left-behind parent must prove the following:

  • The child’s habitual residence. A parent must show that the child’s habitual residence was in the country to which the parent seeks the child’s return. “Habitual residence” is not defined in the convention, but it refers generally to the child’s ordinary residence. Courts will look at the shared intentions of the parents, the history of the child’s residence, and where the family was settled.
  • That the removal was wrongful. This means that the left-behind parent must have custody rights over the child. This requirement is generally satisfied by showing a court order granting custody. If a custody case is still in the court and has not yet been finalized, the Convention deems the court to have custody rights, and so traveling outside the court’s jurisdiction constitutes abduction.
  • The parent was exercising custody rights. The Convention requires that at the time of the abduction, the left-behind parent actually spent time with the child under the custody arrangement. Thus, if a parent had no contact with a child, this requirement would not be satisfied.

The anguish and stress caused by a child’s abduction are only compounded by the confusion of dealing with the complexities of international law. If you are confronting issues of international parental rights, please contact an experienced Stamford family law attorney at Greenberg & Krieger, LLP for a free initial consultation.

OVC Lawyer Marketing, Inc.