United States: Filing And Litigating A Hague Convention Child Abduction Civil Case In Federal Court

I. Background on Child Abduction Cases Under the Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") is an international treaty in which the signatory countries agree to cooperate in returning children to their home country, after the children have been abducted by one parent and taken to a foreign country.¹ The goals of the Hague Convention are as follows: (1) to secure the immediate return of a child wrongfully removed or wrongfully retained in any Contracting State; and (2) to ensure that rights of custody and access under the law of one Contracting State are effectively respected in other Contracting States. Hague Convention, Art. 1² The United States is a signatory to the Hague Convention³ along with eighty-seven other countries.⁴

To begin the process of seeking return of a child pursuant to the Hague Convention, the left-behind parent must first contact the designated Central Authority within his or her home country. The Central Authority will work with the left-behind parent to complete an Application and other supporting materials. The Central Authority sends these documents to the U.S. State Department's Office of Children's Issues ("State Department"), which is the designated Central Authority in the United States. The State Department then initiates the process of locating the child in the United States. Once the State Department locates the child, and if the left-behind parent requests pro bono legal representation, the State Department will locate attorneys within its attorney referral program, who may be interested in representing the left-behind parent. Once an attorney expresses an interest in a particular case, the prospective client can choose to contact that attorney. The attorney then has the opportunity to evaluate the case and determine whether to take on the representation.

An attorney who has agreed to represent a left-behind parent ("petitioner"), will file a petition for the child's return in either state or federal district court in the district in which the abducting parent ("respondent") resides.⁵ A petitioner establishes a prima facie case for the return of a child under the Hague Convention if he or she proves three elements: (1) prior to removal or wrongful retention, the child was habitually resident in a foreign country; (2) the removal or retention was in breach of custody rights under the foreign country's law; and (3) the petitioner actually was exercising custody rights at the time of the removal or wrongful retention. Hague Convention, Arts. 3-4.

If the petitioner establishes a prima facie case, then the abducted child must be returned to his or her country of habitual residence unless the respondent can satisfy the requirements of one of the five affirmative defenses. Those defenses are as follows: (1) the child has become well-settled in the new surroundings;⁶ (2) petitioner consented or acquiesced in the removal or retention; (3) there is grave risk of danger to the child in the home country; (4) the child is a mature child who objects to removal; and (5) returning the child would violate public policy. Hague Convention, Arts. 12, 13, and 20. However, even if the respondent successfully demonstrates an affirmative defense, the Court may nonetheless order return of the child if doing so would further the Hague Convention's goals.

II. How to Begin Your Pro Bono Hague Convention Practice

You do not have to be a family lawyer to develop a pro bono Hague Convention practice. As stated above, many Hague Convention petitions are filed in federal district court, where most family lawyers do not practice regularly. Attorneys interested in pro bono representation of petitioners in Hague Convention cases should register to be part of the attorney referral program on The State Department's International Parental Child Abduction website.⁷ The State Department provides many helpful resources, including a manual entitled, "Litigating International Child Abduction Cases Under the Hague Convention," which contains analysis on relevant case law, guidance on procedural issues and handling the logistics associated with a Hague Convention case, as well as sample pleadings and filings.

Footnotes

[1] T.I.A.S No. 11,670, 1343 UN.T.S. 22514, reprinted in 51 Fed. Reg. 10493 (1986).

[2] The Hague Convention authorizes a federal district court to determine the merits of the abduction claim but does not allow it to consider the merits of any underlying custody dispute. Morris v. Morris, 55 F.Supp. 2d 1156, 1160 (D. Colo. 1999) (recognizing that "[p]ursuant to Article 19 of the Convention [this Court has] no power to pass on the merits of custody"); see also < span style="text-decoration: underline;">Currier v. Currier, 845 F. Supp. 916 (D.N.H. 1994) (citing Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993); Meredith v. Meredith, 759 F. Supp. 1432, 1434 (D. Ariz. 1991). The district court's role is not to make traditional custody decisions but to determine in what jurisdiction the children should be physically located so that the proper jurisdiction can make those custody decisions. Loos v. Manuel, 651 A.2d 1077, 1079 (N.J. Super. Ct. Ch. Div. 1994).

[3] The International Child Abduction Remedies Act ("ICARA") is the United States' implementing legislation for the Hague Convention. 42 U.S.C. § 11601 et seq. (1988). ICARA establishes the Hague Convention as the law of the United States and details how the treaty will be enforced.

[4] Of these 87, the United States recognizes only 68 countries as "partner countries" for resolving child abductions under the Hague Convention.

[5] Many practitioners file these petitions in federal district court as a Hague Convention case is not intended to focus on a "best interests of the child" analysis, and state court judges, who are accustomed to making "best interests of the child" determinations, may be more inclined to apply such a test to a Hague Convention case. Other factors such as the client's needs, docketing speed, and the attorney's familiarity with the court and local rules may also affect a forum decision. NCMEC, Litigating International Child Abduction Cases under the Hague Abduction Convention, p. 69.

[6] The well-settled defense is not available to a respondent if the petition is filed within one year of the wrongful removal or retention of the child.

[7] This website is http://travel.state.gov/content/childabduction/en/legal/for-attorneys.html. The International Child Abduction Attorney Network's website, www.missingkids.com/ICAAN, also contains helpful information and links to other resources.

This article originally was published in the October 2015 issue of The Middle Ground, a publication of the Federal Bar Association's Middle District of North Carolina Chapter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.