Hague Convention of the Civil Aspects of International Child Abduction
As opposed to divorce, child custody, and other family law matters, actions brought pursuant to the Hague Convention are not run-of-the-mill cases handled by Gill Family Law, but Gill Family Law is equipped to assist clients in navigating such a unique case. According to the U.S. Department of State, “the purposes of the [Hague] Convention are to protect children from the harmful effects of international abduction by a parent by encouraging the prompt return of abducted children to their country of habitual residence, and to organize or secure the effective rights of access to a child.” Stated simply, the Hague Convention discourages one parent from removing his or her child from their home country in violation of the other parent’s custody rights.
To prove a prima facie case under the Hague Convention, the parent bringing a Petition for the Return of the Child within a court of competent jurisdiction must prove that the minor child – under the age of 16 – was wrongfully removed or retained in breach of that parent’s custody rights under the laws of the Contracting State in which the minor child habitually resided before he or she was removed or retained. Hague Convention Articles 3 and 12. If the parent can prove a prima facie case and the Petition was brought within one (1) year of the minor child’s removal, the court hearing the Petition shall order the return of the minor child. Hague Convention Article 12.
But if the Petitioner was brought over one (1) year, the court hearing the Petition shall order the return of the child, unless the other parent can prove an exception to the Hague Convention that would allow the court to not order the minor child’s return. The exceptions recognized under the Hague Convention include: (1) the child is well settled in his or her new environment (Article 12); (2) the parent bringing the Petition consented to or acquiesced in the minor child’s removal or retention (Article 13(a)); (3) there is a grave risk that returning the child would expose him or her to physical or psychological harm (Article 13(b)); and (4) returning the child would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms (Article 20).
Notwithstanding the above, under Article 18 of the Hague Convention, the court hearing the Petition for Return of the Child retains the authority to order the return of the minor child at any time. It is important to note that the Hague Convention does not allow a court to determine custody of the parties; the court hearing the Petition for Return of the Child is only tasked with deciding whether the minor child is to return to his or her home of habitual residence.
