- International Custody Battles
- August 11, 2015 | Author: Kevin P. Rauseo
- Law Firm: Hamblett & Kerrigan, P.A. - Nashua Office
- In 1988, Congress ratified the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). The treaty addresses the issue of children who have been wrongfully taken or retained in a foreign country. Simultaneous with the ratification of the Hague Convention, Congress enacted the International Child Abduction Remedies Act (42 U.S.C. §11601 (1988)), which implements the treaty and sets out the method of using the Hague Convention in the United States. If a child has been brought to the United States without permission from a foreign country or has been wrongfully retained here, the Hague Convention requires the child to be returned to the country of his/her habitual residence. However, the Hague Convention only applies to countries that have ratified the treaty and the United States has established a United States a treaty relationship per Article 38 of the Convention with the country in question.
While the Hague Convention uses slightly different terminology, its provisions are similar to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) and the Parental Kidnapping Prevention Act (“PKPA”). Article I of the Hague Convention declares the purpose of the Act is to: (i) secure the proper return of children wrongfully removed or retained from a participating country; and (ii) ensure that the rights of custody and of access under the laws of one country are effectively respected in the other country. Article III of the Act declares the removal or a retention of a child is a violation when: (i) it is in breach for the rights of custody attributed to a person, an institution, or any other body, either jointly or alone, under the law of the country in which the child was habitually resident immediately before the removal or retention; and (ii) at the time of the removal or retention those rights were actually exercised, either jointly or alone but would have been so exercised but for the removal of the child.
There are several exceptions under the Convention which allow the court to refuse returning a child who otherwise falls under the Act. First, return is not mandated if the proceeding is commenced more than one year after the wrongful removal or retention if the court determines that the child is settled in the new environment. Second, return is not required if the petitioner was not actually exercising custody rights at the time of removal or retention. Third, return is not required if the respondent can show the petitioner assented or acquiesced in either the removal or the retention; the court is not required to order the return if the respondent establishes that a grave risk of physical or psychological harm exists to the child if returned to the country. Finally, Article 20 of the Hague Convention allows the court to refuse to return the child if this would not be permitted by the fundamental principles of the requested country relating to the protections of human rights and fundamental freedom.
Federal law gives concurrent jurisdiction to state and federal courts in Hague Convention cases. New Hampshire has one reported case decided under the Hague Convention. In Currier v. Currier, the father, a New Hampshire resident, was found to have wrongfully removed the children from their habitual residence, Germany. The mother lived in Germany and was found to have been exercising lawful custody rights. The children were ordered to be returned to Germany.