In New York family law, often whether or not travel by one parent to a foreign nation with the child(ren) should be permitted is an issue that arises. I often look to whether the other country is a signatory to the Hague Convention or not when looking at the issue. The Hague Abduction Convention in law is a form of treaty or accord that was developed by the Hague Conference. Treaties are a method of establishing international law. The concept offers a method for returning a child who was taken from one country that is a member of the Hague convention, to another. In other words, the purpose behind the convention is to offer protection to children against the potential damage that may be caused by international abduction by another parent or other person, prompting the quick return of any children involved back to their habitual residence country. The convention also helps to secure and organize the rights associated with access to a child in parental time or visitation.
The concept centers on the fact that matters of custody and visitation should be determined by the court in the residential or habitual country of the child, meaning that the Convention champions the best interests of the child, and provides the opportunity to access a civil remedy that is shared with the other member nations. Legal parties use the Hague Convention to preserve an existing child custody arrangement that was created before the child was wrongfully removed from a place or circumstance. This deters parents from crossing over international boundaries in an attempt to avoid the court orders of the home nation. Individuals often wonder why they may need to access the convention if they already have an order of custody, and the answer to this is that, firstly, alternative countries may not recognize New York or United States court orders.
What’s more, each separate country is defined as a sovereign nation, and by law Sovereign nations can’t interfere with the legal systems of one another, law enforcement provisions, or judiciaries. Importantly, the Hague convention doesn’t alter the substantive rights. It requires that any court that holds a case, wherein a Hague convention request is filed, must only determine where issues of child custody should be heard, rather than considering the merits of child custody disputes itself. Your New York or Long Island child custody lawyer can explain this concept further to you.
It is worth noting that the Hague Convention doesn’t apply automatically to every parental issue involving potential child abduction on an international level. If an individual wants to request that a child be returned under the convention, they must show:
- The child was less than 16 years of age upon filing the application.
- The convention was in force between the two countries during the time in which wrongful retention or removal occurred.
- The retention or removal of the child was considered wrongful, or in violation of custodial rights that the client was exercising at the time of the retention or removal
- The child was a habitual resident within one Convention country (such as the U.S.)
So, how do we decide, when looking at the treaty whether or not the situation is “wrongful”?
The Hague Convention suggests that the retention or removal of a child is considered to be “wrongful” when it is:
- Found to be in breach of the custody rights that were already attributed to a family member, parent, guardian, or institution under the law within the habitual State of the child.
- Found that the retention of the child, or the removal, was done during a time when those custodial rights were being exercised on a singular or joint basis – or should have been exercised without the retention or removal.
The court considers the removal of the child from a joint custody holder without obtaining permission from the other joint custodian to be wrongful. This suggests that the action has disregarded the legally protected rights belonging to the other parent, and therefore interfered with normal exercises.
Next, it is worth looking at which countries order has the right to be upheld. The Hague contract demands children to be returned who have been classed as a habitual resident of a particular signatory nation. Importantly, this return must be immediately processed before an action considering an access breach (visitation or parenting time) or custody right issue. From a legal standpoint, the convention itself does not provide a strict definition of what “habitual residence” is intended to mean, but it is important to note that it is not intended as a technical term. Rather, legal courts should be able to broadly read the idea of “habitual residence” in the Convention context, which aims to discourage parents from removing a child from a place where they lived, or considered to be their typical residence.
Under the rules of the Convention, partner countries may decide to refuse the return of an abducted child, or refuse to grant visitation access to the children involved if any of the following apply:
- Returning the child would violate the fundamental principles laid out in human rights, and the freedoms respected by the country wherein the child is currently being held.
- The child actively states that they do not want to return to their “habitual residence”, and has reached a level of maturity, and an age wherein the court can realistically consider that child’s views.
- There is a significant risk that the child would be exposed to serious psychological or physical harm, or placed in a situation that would be considered “intolerable” if they were sent back to their habitual country.
Importantly, the way these exceptions are interpreted can vary from one country to the next, and partners of the convention must respect the rights of access/visitation and custody generated by partner countries, while considering the best interests of the child.
The Hague Convention also offers special rules for evidence that can be admitted and considered. Any court considering a Convention action will have to take close consideration of the administrative decisions, judicial concepts, and law that were formally recognized in the child’s state of habitual residence. To learn more about family law, child custody, visitation and abduction, please visit our other blog pages and web entries. If you would like to discuss a case, then please call or write us to ask about your free initial consultation – we look forward to speaking with you about it.