By Johanthan W. Lounsburry – United States –
Each year some parents are faced with a devastating reality: their partner has taken their child to another country and is refusing to return. They are left-behind and at a loss of what do. Not only is this an emotionally charged situation, but it is also highly technical and requires a deft legal response. Fortunately, in certain situations, there is a legal remedy to help the left-behind parent recover their child. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (1980 Hague Convention) is a multilateral treaty designed to protect children and promote prompt return of abducted children to their habitual residence. In the United States, the 1980 Hague Convention is enacted by the International Child Abduction Remedies Act (ICARA) which allows a left-behind parent to seek return of the abducted child in State or Federal court.
1980 Hague Convention
There are approximately 101 contracting countries to the 1980 Hague Convention, so an important first step is to determine what countries are involved. If you are a left-behind parent, filing a return application under the 1980 Hague Convention is likely the fastest remedy available to you. (If the country you are seeking a return from is not a contracting party, there are likely still remedies available to you through other legislative schemes or legal vehicles.)
In seeking a return, the left-behind parent must demonstrate the child was habitually resident in the country they were removed from, that the removal was in breach of the left-behind’s custody rights, that the left-behind parent was exercising their custody rights at the time of removal, and the abducted child is under sixteen years of age. Last, the petition seeking return should be filed within one year of the abduction.
Although the 1980 Hague Convention seeks an expeditious return of the child, a court may decline to return a child if one of the following defenses to the abduction can be demonstrated: the child is settled in the new country, the left-behind parent acquiesced to the child being in the new country, there is a grave-risk of harm to returning the minor child, the child objects to the return, or returning the child would violate public policy.
Whether you are the left-behind parent or the taking parent, each situation is as emotionally charged as the other; and each is highly technical and requires a deft legal response.