As our world becomes interconnected across international borders, more
corporations require U.S. citizens to re-locate to foreign countries,
and international romance blossoms, issues of
child custody, usually “domestic” legal matters, take on international significance.
Consider the father whose job takes him to France for an indefinite term.
He moves his wife and family to France and enrolls the older children
in the local schools, even as one or more additional children are born
in France. When the parents encounter marital difficulties and the wife
wishes to separate from her husband, she may simply put the children on
a plane with her to return “home” to the U.S. Under international
law, however, if the father did not consent to the children’s removal
to the U.S., the mother may have abducted the children in violation of
Or consider a child born to an international marriage between a U.S. father
and a foreign mother in a country with dramatically limited education
and economic opportunities for the child. When the marriage breaks up
and the U.S. father takes the child to the States, over the mother’s
objection, to access the improved opportunities and standard of living
available here, the father has abducted the child under international law.
In the early 1980’s, many countries (including the U.S.) became part
of the Hague Convention on the Civil Aspects of International Child Abduction.
Countries who adopted the Convention (an international treaty) agreed
to standards of process and procedure to address international child custody
disputes when a child aged 16 or under has been removed from one country
to another without the consent of the parent(s). The parent who objects
to the removal of the child must begin legal proceedings
within a year to have a court determine whether the child should be returned to the
country from which he was taken, or whether the child can stay with the
parent in the new country. The Hague Convention has a strong presumption
favoring the return of a wrongfully removed child to the country from
which he was taken.
The legal proceedings for return of the child are brought in the courts
of the country where the child has been taken. For the objecting parent,
this means hiring an attorney in the foreign country where the child is
newly located to bring a court action for the return of the child under
the Hague Convention. In the two examples above, those cases would be
brought in U.S. courts, where the children were removed and reside.
The Hague Convention is designed to make the process as speedy and efficient
as possible. Within 6 weeks of the filing of the petition, the court must
reach a decision on whether the child was wrongfully taken. Like most
family law courts in the U.S., the court is not required to stand on formalities
of evidence or procedure, but looks to understand the facts as thoroughly
as possible, through any relevant means—including video and telephone
testimony. Importantly, the custodial rights of the petitioner (the objecting
parent) are determined by the law of the country where the child was “habitually
resident,” before the child was removed. It is not unusual that
these custody rights may be dramatically different than those granted
under U.S. law. (Consider, for example, the strict right of exclusive
custody of fathers to children in many Middle East countries, where the
mother has little or no say in the custody of her child.)
The Hague Convention may refuse to order a return of the child to the country
from which he was taken if certain circumstances are proven:
- The objecting parent had no custodial right to the child.
- Return of the child would expose the child to physical or psychological
harm or otherwise place the child in an “intolerable situation.”
- Evidence of domestic violence by the objecting parent would indicate a
likelihood of abuse toward the child.
- Return of the child would be to an area of war, famine or disease.
The court may also consider the child’s desires as to where to live,
if the child is sufficiently “mature” to make such a determination.
As in most child custody disputes in the U.S., the court can also make
interim or emergency orders for custody of the child, including directing
law enforcement to locate and immediately pick up the child, to surrender
passports of the “abducting” parent and child, and to order
interim visitation for the objecting parent.
Finally, the Hague Convention requires the “abducting” parent
to pay the legal fees of the objecting parent, if the objecting parent
prevails to obtain the return of the child to the country from which he