International child abduction is a serious and growing problem. Many people think that once they take their children to another country all their problems will be solved. For children, abduction involves being uprooted from friends and family and sometimes even an entirely new identity.

The Hague Convention is a breath of hope for internationally abducted children. It calls for the prompt return of wrongfully removed or retained children to their countries of habitual residence and provides procedures to implement their return.

1. The child must be under 16 years of age

2. Both the country from where the child is removed/retained and the country where the child is located must be signatories to the Hague Convention.

3. The child must have been wrongfully removed from or retained away from its state of habitual residence.

Under Article 3 of the Hague Convention, the retention of a child is wrongful where (1) it is in breach of the rights of custody attributable to a person under the law of the state in which the child was a habitual resident immediately before the removal or retention, and (2) where the custody rights were being exercised by the petitioner. In the United States, parents who are still married and have no existing custody order or agreement, have equal custody rights to their children and therefore each parent meets the Hague requirements. A right to determine a child’s place of residence is considered a right of custody under the Hague Convention. Custody rights, such as those relating to children born out of wedlock, are determined by the laws of the state of habitual residence.

Habitual residence is an undefined term in the Convention and its enabling legislation. The leading view is that Habitual Residence is the permanent physical residence of the child. Intent is an important factor in determining habitual residence as illustrated in Feder v. Evans-Feder. The court found that Australia was not a child's habitual residence even though the mother left the United States with the child to join her husband who had obtained employment in Australia on January 8. She returned from Australia to the United States on June 29 and the court found that the mother's move was on a temporary, trial basis only.

The court went on to quote from the case of In re Ponath

In the Ponath case a child was born in Utah to an American mother and a German father. The family spent the first five months of the child's life in Utah before traveling to Germany. The father obtained employment in Germany and began building a house for the family near his parent's residence. After the child had been in Germany for eleven months, the parents separated and the mother returned to Utah with the child. Although the child had lived in Germany more than twice as long as he had lived in Utah, the court held that the father did not establish a change in the boy's habitual residence The court found that the mother had no settled purpose to remain in Germany. See also David B. v Helen O. and Cohen v Cohen

Each signatory designates a Central Authority to process Hague matters. The petitioner may contact either the Central Authority in their own country or the foreign country. The Central authority will forward a Request For Return form to the Petitioner requiring certain information. An attorney in the jurisdiction where the child is located should file a Notice of Petition and a Petition for Return of the child.

There may be ex parte orders in the foreign country to prevent the Petitioner from re-abducting the child. The attorney should determine whether such orders exist as the Petitioner might be arrested while attempting to make contact with the child. The Hague Convention allows these orders to be stayed by Motion but such stay is not automatic.

Under Article 15 of the Hague Convention the attorney may request a decision from the state of habitual residence stating that the removal was unlawful under their laws. This will not be binding on the foreign jurisdiction but will be persuasive. This should be done as soon as possible so that it is available for use in the foreign jurisdiction.

Federal Court.

Federal courts do not hear custody cases and may therefore be more inclined to a literal reading of the Convention. Make sure that you are admitted to appear in the Federal Court and obtain a copy of the local federal court rules before proceeding.

State judges frequently hear custody cases and may be influenced by the best interest of the child standard, which is not part of the consideration in a Hague convention decision.

The judge must act expeditiously and if there is no decision within 6 weeks of the commencement of the action, Petitioner or the Central Authority has the right to request the reason for the delay.

The attorney should move very quickly as the abductor may flee again. Under Section 6 of ICARA documents need not be authenticated to be admitted and a great deal of verification can be done via the fax machine.

The various defenses are narrowly construed and the court is prohibited from making any custody decision. The court cannot make a determination of the best interests of the child. The custody decision should be left to the court of the child’s habitual residence.

1. The child is now settled in its new environment.
2. Acquiescence to the removal.
3. Petitioner had a right but was not actually exercising his right at the time of removal.
4. Petitioner had no right of custody or access at the time of removal.
5. There is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
6. The child is of an appropriate age and degree of maturity and objects to the return.
7. A return would not be permitted by the "fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms."

• The Child is now settled in its new environment.

Article 12 of the Convention provides that when the proceedings for return of the child are commenced after the expiration of a period of one year from the date of wrongful retention, the child should not be removed if he is now settled in his new environment. The term "commencement of proceedings," with respect to the return of a child located in the United States, means the filing of a petition for the return of the child in a court of competent jurisdiction. In Slagenweit the court found that Sandra, a 3½ year old girl, had settled in her new environment based on her substantial involvement with her father, his girlfriend, and the Iowa medical community. Sandra commenced living with her father in July 1992 and the petition for return was filed on August 6, 1993, just over one year later. It is essential to bring the action prior to the one year deadline, wherever possible, to avoid this defense.

• Acquiescence to the Removal.

In Ponath, the court, in considering whether the husband had consented to the removal of the child, took into account that he had failed for almost 6 months to make any meaningful effort to obtain return of the child.

• There is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

Article 13(b) of the Hague Convention states that the Court is not bound to return the child if there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The onus lies on the Respondent to show by clear and convincing evidence that this defense applies.

To establish evidence in this regard the petitioner may introduce evidence that will enable the court to determine whether a realistic basis exists for apprehensions concerning the child's physical safety or mental well-being. Normally, one would need to show that the child would be exposed to a grave risk of harm by being returned to the state, such as where the country was at war. Whether Petitioner poses a threat to the child is usually an issue to be determined by the country of habitual residence as part of the custody proceeding. However, the courts have allowed some investigation into the surroundings to which the child will be sent. "The court must be empowered to evaluate the surroundings to which the child is to be sent and the basic personal qualities of those located there." Tahan v. Duquette.

In Nunez-Escudo v. Tice-Menley , the court rejected the contention that the Article 13(b) "intolerable situation" exception applies only if the government agencies and courts of Mexico are unable to protect the child if he is returned to that country.

In that matter the mother submitted an affidavit that she was physically, sexually and verbally abused by her husband. The matter was remanded for further proceedings to enable the mother to produce clear and convincing evidence that the return of the child would subject him to a grave risk of harm or otherwise place him in an intolerable situation.

The Australian decision of Brown v. Brown is an example of how very narrowly this exception is interpreted by the courts. In this case a child was ordered to be returned to her mother in Austria despite evidence of abuse while in her mother’s care. The mother and child subsequently traveled to California on vacation 18 months later and using the same sexually suggestive photographs used in Australia, the federal district court in California found that the child should not be returned to Austria under the "grave risk" exception. In addition the child was removed from the mother while in California and placed in protective custody that was followed by a dependency and neglect action. See the case of In re Shoshana B . The court in California held that it was not bound to follow the decision of the Australian Court as it appears to have been a particularly ill considered one.

• A return would not be permitted by the "fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms."

A member country is entitled to refuse to return a child to a country where the child’s rights will be abridged. Clear and convincing evidence is needed to meet the burden of proof with this exception.

The Petitioner is obliged under Sec.8 (42 USC 11607) to bear his own costs and the United States authorities do not carry this responsibility. If the court orders return of the child then Respondent must pay costs and attorney fees unless "clearly inappropriate." Sec 8 (3) (42 USC 11607)

Argentina, Austria, Australia, Belize, Bosnia-Herzegovina, The Bahamas, Burkina Faso, Canada, Chile, China (Hong Kong Special Administrative Region only), Colombia, Croatia, Cyprus, Denmark, Ecuador, Finland, France, Germany, Greece, Honduras, Hungary, Ireland, Israel, Italy, Luxembourg, Mauritius, Mexico, Monaco, Netherlands, New Zealand, Norway, Republic of Panama, Poland, Portugal, Romania, St. Kitts and Nevis, Slovenia, South Africa, Spain, Sweden, Switzerland, United Kingdom, United States of America, Former Yugoslav Republic of Macedonia, Venezuela and Zimbabwe.

1. Report the child as missing. File a Missing Persons Report and ask the police to enter the child’s description into the national Crime Information Center computer maintained by the FBI.
2. Contact the National Center for Missing and Exploited Children: 1-800-843-5678.
3. If you know that the child has been taken out of the country contact the State Department (202) 647-2688. Ask for a free copy of their booklet, International Child Abduction.
4. Consider criminal charges. The Federal International Parental Kidnapping Crime Act of 1993 (U.S.C. 1204) may apply.
5. To prevent issuance of passports, contact the Office of Passport Services at (202) 955-0337.
6. Another resource is INTERPOL, U.S. National Central Bureau, (202) 616-9000. This organization provides a global communications network to enable police around the world to coordinate international criminal investigations.

• Avoid joint custody orders where there is a likelihood of abduction.
• Provide a condition that the non-custodial parent will hand his or her passport to a third party during parenting time.
• Provide a condition that passports for the children will not be obtained.
• Avoid generalities in parenting time provisions—be specific.
• Provide for supervised parenting time where necessary.
• Notify schools, day care centers, and baby sitters of the custody situation.
• Teach the child how and where to call home.
• Keep lists of identifying information including current photographs of the other parent and the child.