HAGUE (8 QUESTIONS)

Question 1

What is the primary civil law mechanism for parents seeking the return of a child from other treaty partner countries?

Answer 1

The Hague Convention on the Civil Aspects of International Child Abduction

Question 2

What does the Hague Convention on the Civil Aspects of International Child Abduction do?

Answer 2

It determines which state has proper jurisdiction to make an initial determination of child custody; it does NOT address who should have custody of the child

Question 3

What is the Hague Convention on the Civil Aspects of International Child Abduction?

Answer 3

The primary civil law mechanism for parents seeking the return of a child from other treaty partner countries

Question 4

Does the Hague Convention make custody determinations?

Answer 4

NO - it determines which state has proper jurisdiction to make an initial determination of child custody; it does NOT address who should have custody of the child

Question 5

What is the Hague Convention not designed to do?

Answer 5

It is not designed as a punishment or as an extradition treaty

Question 6

When does the Hague Convention apply?

Answer 6

-Both countries must be contracting states to the convention.
-The child must have been habitually resident in a Contracting State immediately before any breach of custody or access right, and taken to retained in another Contracting State.
-the Convention only applies to children under the age of 16

Question 7

What happens in a Hague proceeding if a child turns 16 during the case?

Answer 7

The convention will cease to apply if child turns 16 at any point. You would need to rely upon other laws, procedures or comity to ask the court to order return of the child.

Question 8

What does Article 13 of the convention permit courts to do?

Answer 8

Article 13 of the convention permits the court to refuse to order return of child if the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take into account the child’s views.

Question 9

What is the core concern once it is determined that the Hague Convention applies?

Answer 9

Core concern is the child’s “habitual residence.”

Question 10

What is the definition of “habitual residence”?

Answer 10

There is no formal definition and is a fact-intensive determination. Consideration includes:

1. The change of geographic location
2. The passage of time in a particular location
3. Evidence of a significant connection with a particular place
4. Considering these issues of connection through the viewpoint of the child

Question 11

How are custody rights derived?

Answer 11

(1) by operation of law;
(2) by reason of a judicial or administrative decision; or (3) by reason of an agreement having legal effect under the law of that State. Custody rights are defined by the laws of the country of the child’s habitual residence

Question 12

Are the best interest of the child considered in hague cases?

Answer 12

Best Interest of the Child does not apply to avoid ruling on the merits of the custody dispute.

Question 13

Why is BIC not considered?

Answer 13

The convention relies on presumption that a child’s best interest is served by the court with optimum access to information and evidence about the child and his/her life.

Question 14

What role can a government’s central authority have on a hague proceeding?

Answer 14

The government’s Central Authority will assist with both incoming and outgoing child abduction cases. If a determination has not been made in 6 weeks, then Central Authority has the right to request a statement of the reasons for the delayed proceeding

Question 15

In what Court can a Hague case be filed?

Answer 15

In federal or state court

Question 16

What is the petitioner’s burden of proof in a hague case?

Answer 16

Petitioner must prove by a preponderance of the evidence the following:

1. the child was “ habitually resident” in “ petitioner’s country of residence” at the time he/she was wrongfully removed or retained;
2. the removal or retention was in breach of the petitioner’s custody rights under the law of the petitioner’s “ home state”; and
3. the petitioner had been exercising those rights at the time of the retention.

Question 17

What must happen if wrong removal of a child is found?

Answer 17

If wrongful removal has been proven, the child must be returned unless there is an affirmative defenses exists

Question 18

What are the affirmative defenses can be raised if there is a finding of wrongful removal a child?

Answer 18

A. Clear and convincing evidence defenses:

1. Grave risk – the return of the child would expose the child to a grave risk of physical or psychological harm or otherwise place he child in an intolerable situation (war zone, child cannot be protected by court in country of habitual residence). This is very difficult to overcome because you must also be able to show the courts in the country of habitual residence is incapable or unwilling to give the child adequate protection.
2. Protection of Human Rights – the return of the child would not be permitted by fundamental principles of the US relating to the protection of human rights and fundamental freedoms (would utterly shock the conscience of the court or offend all notions of due process.

B. Preponderance of the evidence defenses:
1. 1 Year – petition for return was not filed within 1 year of the removal and the child is now well-settled

2. Not Exercising Custodial Rights – the petitioner was not actually exercising his/her custodial rights at the time of the removal or had consented to or acquiesced to the removal
3. Child’ Objects – child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

Question 19

Which affirmative defenses must be proven by clear and convincing evidence?

Answer 19

1. Grave risk
2. Protection of Human Rights

Question 20

What is the grave risks defense?

Answer 20

The return of the child would expose the child to a grave risk of physical or psychological harm or otherwise place he child in an intolerable situation (war zone, child cannot be protected by court in country of habitual residence). This is very difficult to overcome because you must also be able to show the courts in the country of habitual residence is incapable or unwilling to give the child adequate protection.

Question 21

What is the protection of human rights defense?

Answer 21

The return of the child would not be permitted by fundamental principles of the US relating to the protection of human rights and fundamental freedoms (would utterly shock the conscience of the court or offend all notions of due process

Question 22

What defenses can be proven by preponderance of the evidence?

Answer 22

1. Year
2. Not Exercising Custodial Rights
3. Child’ Objects

Question 23

What is the 1 year defense?

Answer 23

Petition for return was not filed within 1 year of the removal and the child is now well-settled

Question 24

What is the not exercising custodial rights defense?

Answer 24

The petitioner was not actually exercising his/her custodial rights at the time of the removal or had consented to or acquiesced to the removal

Question 25

What is the child objects defense?

Answer 25

Child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views

Question 26

If an affirmative defense is proven, is the court obligated to allow a child to stay?

Answer 26

Even if an affirmative defenses exists the court has discretion to order child’s return

Question 27

When SHALL the court order a respondent to pay petitioner’s recovery of fees?

Answer 27

If the return is ordered, the court “SHALL” order the Respondent to pay necessary expenses incurred on behalf of the petitioner unless respondent shows it would be clearly inappropriate

Question 28

What fees can a petitioner recover if the Court orders return of the child?

Answer 28

Court costs, legal fees, foster home or there care during proceedings, transportation…

Question 29

If the Court orders a child can stay, is the petitioner obligated to pay respondent’s fees?

Answer 29

NO - only recovery of fees if petitioner prevails but it doesn’t work in the converse

Question 30

Are the rules of evidence strictly adhered to in Hague proceedings?

Answer 30

Rules of Evidence are Relaxed.

Question 31

Are documents required to be authenticated?

Answer 31

No - authentication is not required in order for documents to be admissible and the court can take judicial notice of foreign laws or decisions without recourse to the specific procedures for the proof of that law or the recognition of foreign decisions which would otherwise be applicable. Affidavits of non-parties are also admissible (i.e. affidavits of teachers, neighbors).

Question 32

What can a petitioner file if they are concerned the other parent will flee with the child again?

Answer 32

Petitioner may seek an Order for Issuance of Warrant in Lieu of Writ of Habeas Corpus, which once signed by judge, permits authorities to take the child into custody to be presented to the court for the Hague Convention hearing

Question 33

What happens if the Hague convention does NOT apply?

Answer 33

The UCCJEA treats foreign nations as states, showing an intent that the principles of the UCCJEA should apply in international border crossing situations and international abduction cases

Question 34

What should courts do under the UCCJEA if the court has jurisdiction because a person seeking to evoke jurisdiction has engaged in unjustifiable conduct?

Answer 34

Under the UCCJEA, there is a provision that permits the court shall decline to exercise jurisdiction unless specific exceptions apply

Question 35

What is unjustifiable conduct?

Answer 35

Conduct by a parent or that parent’s surrogate that attempts to create jurisdiction in this state by removing the child from the child’s home state, secreting the child, retaining the child, or restraining or otherwise preventing the child from returning to the child’s home state in order to prevent the other parent from commencing a child custody proceeding in the child’s home state.

Question 36

What is the focus in determining unjustifiable conduct?

Answer 36

The focus is the conduct of the parent.

Question 37

Is there a showing of intent that the principles of the UCCJEA should apply in international border crossing situations and international abduction cases?

Answer 37

Yes, because if Hague convention does not apply, UCCJEA treats foreign nations as states

Question 38

Is a non-home state court without jurisdiction completely powerless?

Answer 38

NO - the UCCJEA expressly gives a court power to ‘fashion an appropriate remedy’ to ensure the child’s safety and to prevent repetition of the abducting parent’s conduct. This shows an intention to give the non-‘home state’ court the power to issue orders concerning the parties and the child, specifically orders focused on redirecting the custody determination back to the appropriate forum and not rewarding the actions of the abducting parent.

Question 39

What do both the Convention and the UCCJEA emphasize?

Answer 39

The Convention and the UCCJEA both emphasize that the jurisdiction where a child has spent a significant portion of his/her life – focusing on geography and time – is the appropriate jurisdiction to make a child custody determination.

Question 40

What do both the Convention and UCCJEA seek to deter?

Answer 40

They also seek to deter abductions and eliminate one parent’s ability to gain a custody advantage through “bad” behavior.

Question 41

Does a US Court need to be concerned with whether or not a foreign nation is substantially compliant with the UCCJEA?

Answer 41

So long as the US court is not being asked to enforce a prior court order on custody, it does not need to address or consider whether that foreign nation is substantially compliant with the UCCJEA.