International Family Abduction
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One of the most effective means of recovering an internationally abducted child is through the use of the Hague Convention on the Civil Aspects of International Child Abduction. This is a multilateral treaty with three primary objectives: to secure the prompt return of a wrongfully removed or retained child to his or her country of habitual residence; to ensure that rights of custody and access in one signatory country are respected in other signatory countries; and to deter future international abductions.
A brief overview of the treaty’s basic provisions is discussed below; the full text of the treaty can be found at http://www.hcch.net/index_en.php
Basic Provisions of Hague Convention
The Hague Convention is an available remedy when the following criteria are met:
- The child in question is under the age of 16. (Art. 4.)
- The Convention is in effect between both countries - the one where the child was habitually residing at the time of the wrongful removal or retention, and the one to which the child was taken or retained. (See Art. 4.)
- The child has been wrongfully removed from, or is being wrongfully retained away from, his or her habitual residence. A wrongful removal or retention is defined as one which is in breach of custody rights attributed to a person, institution, or 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. The applicant has the burden of establishing, by a preponderance of the evidence, that the child has been wrongfully removed or retained within the meaning of the Convention. (Arts. 3, 5; 22 U.S.C. § 9003 (e)(1)(A).)
- At the time of the removal or retention, those custody rights were actually exercised, or would have been, but for the removal or retention. Custody rights may be established either by court order or by operation of law; there is norequirement that a parent have obtained a custody order in order to proceed with a Hague application. (Art. 3.)
- The Convention also applies to aid an applicant parent in organizing or securing the effective exercise of his or her rights of access to a child when those access rights have been breached. (Arts. 4, 5, 21.)
If the foregoing criteria have been met and less than one year has elapsed between the time of the wrongful removal or retention and the time a Hague proceeding has been filed in court, then there is a treaty obligation to return the child forthwith. (Article 12.) There are a few limited exceptions to this obligation, and they are to be narrowly construed so as not to undermine the effectiveness of the treaty. Even if the existence of any of these defenses has been established by the requisite standard of proof, it only means that there is no treaty obligation to return the child; however, the court nevertheless retains discretion to return the child in appropriate circumstances.
There is no treaty obligation to return a child if:
- Return proceedings are commenced (by filing a Hague action in court) one year or more after the alleged removal or retention, and it is demonstrated by a preponderance of the evidence that the child is settled in his or her new environment. (Art. 12; 22 U.S.C. § 9003(e)(2)(b).)
- The person opposing return of the child establishes, by a preponderance of the evidence, that the person seeking the child’s return was not actually exercising his or her custody rights at the time of the removal or retention, or had consented to or acquiesced in the removal or retention. (Art.13(a); 22 U.S.C. § 9003(e)(2)(B).)
- The person opposing return establishes, by clear and convincing evidence, that there is a grave risk that return of the child would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation. (Art. 13(b); 22 U.S.C. § 9003(2)(A).)
- The person opposing return establishes, by a preponderance of the evidence, that the child objects to being returned and has attained an age and degree of maturity such that it is appropriate to take the child’s views into account. (Art. 13; 22 U.S.C. § 9003(e)(2)(B).)
- The return of the child would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. (Art. 20.)
How Government Agencies Assist in Implementing the Hague Convention
Local, state and federal agencies can assist a parent whose child has been abducted by another parent and taken to another country. They can also assist a parent whose child has been abducted from another country and brought into the United States. When a child has been abducted by a parent or other family member and taken to another country, local law enforcement should be contacted. A report should be taken, and the child’s name should be entered into NCIC. The local district attorney’s child abduction unit should also be contacted.
It is important to understand that the treaty is not a vehicle for determining custody or evaluating the best interests of the child. Rather, the treaty is designed to return a child to the country from which he or she was wrongfully removed, so that the court system in that country can determine custody and visitation.
It is also important to understand that a parent applying for the retun of a child under the Convention must have a right of custody to the child, but does not have to have a custody order. The treaty applies if, at the time the child was wrongfully removed or retained away from the habitual residence country, the left-behind parent had a right of custody -- either by court order or under the law -- and the other requirements of the treaty are met.
The treaty is in effect between the United States and over 80 other countries. A current list of those countries can be found at http://travel.state.gov. Each country that has joined this treaty has designated an agency as the Central Authority responsible for implementing the treaty in that country. In the United States, the Central Authority is the United States Department of State’s Office of Children’s Issues (OCI).
Under current practice, foreign Central Authorities send Hague applications to the U.S. Department of State Office of Children’s Issues ("OCI") when it is believed that a child has been abducted from another signatory country to the United States. When the abducted child is thought to be located in California, OCI sends the application to the California Attorney General’s office. The application is reviewed, any missing information is requested, and the application is routed to the local prosecutor's office, namely, the district attorney child abduction unit in the county where the child is believed to be located. Thereafter, the Attorney General’s Office monitors the progress of the case, provides information and assistance to the local prosecutors as needed, and often serves as liaison among the multiple agencies that may be involved in these cases.
Once the local district attorney's office receives the Hague application, an experienced child abduction investigator investigates the case and attempts to locate the child. If the child is found, the investigator and deputy district attorney recover the child and prepare the case for court, where a hearing will be held and a judge will decide whether the child should be returned to the child’s country of habitual residence. Depending on the circumstances involved and the preferences of the parents, the parents may be represented by private counsel who will be present, along with the district attorney, at any court hearings.
District attorneys’ offices may also assist left-behind parents with outgoing Hague applications, which are routed directly to the U.S. Department of State and sent, in turn, to the appropriate foreign Central Authorities. Child abduction personnel in the district attorneys’ offices may assist parents in obtaining information about the application process and can help with preparation of the application. They can also help the applicant-parent monitor the progress of the case in the haven country and assist with arrangements for the return of the children.
The following websites contain important information about international child abduction:
U.S. State Department web site provides current information about international parental kidnapping generally and The Hague Convention on the Civil Aspects of International Child Abduction in particular. The Hague Convention application in English and Spanish, a list of U.S. treaty partners under the Convention, country-specific information about parental kidnapping for Hague and non-Hague countries, and passport information, can be found here.
Hague Convention web site contains information about the Hague Convention on the Civil Aspects of International Child Abduction. It also contains a link to INCADAT, an international data base of cases interpreting the Hague Convention.
National Center for Missing and Exploited Children web site contains information about parental kidnapping.